Footnote 11 for the 21st century?

In law school, became intimately acquainted with footnotes: reading them, writing them, and editing them. This post is about one footnote that changed the course of American History. The U.S. Supreme Court's opinion on Brown v. Board of Education includes the following:

To separate [black schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.¹¹

This footnote referred to the work of Kenneth and Mamie Clark in their famous doll studies:

With his wife, Clark continued the investigations into the effects of discrimination on black schoolchildren. One of their major tools was a test that involved showing the children four dolls that were identical in every respect except skin color. Two of the dolls were white; two were painted brown. After determining at the outset that the children correctly identified which doll was white and which represented a black person, the Clarks gave several instructions, including requests that the children hand over the doll they "like best," "like to play with" and is a "nice color." Other questions were variations on which doll "looks bad."

They . . . found that the black children, even those as young as 3, clearly favored the white dolls and rejected the brown ones . . . . Clark said he not only was surprised by the degree of self-rejection black youngsters exhibited but also deeply moved. "Some of these children, particularly in the North, were reduced to crying when presented with the dolls and asked to identify with them," he told Kluger. "They looked at me as if I were the devil for putting them in this predicament. Let me tell you, it was a traumatic experience for me as well."

This study had a large effect on the Court. As much as separate but equal seemed tenable in theory, studies showed that separate was not equal in practice.

Fast forward 60 or 70 years. I have previously explained why civil unions and domestic partnerships constitute separate but equal status for same-sex couples, and why this status perpetuates a second-class status. A report (.pdf) released by a New Jersey commission has found that civil unions, even when given equivalent legal status with marriage, "has failed to fulfill its promise of equality." The whole report is worth a read, but let me outline some of the problems that the commission has found with civil unions:

Spousal Benefits

Companies that create their own insurance plan are governed by federal law rather than state law. Since federal law does not recognize same-sex unions of any kind, these companies are not required to offer health benefits to the partners of gay employees. "[C]ompanies covered by ERISA, which comprise an estimated 50 percent of all companies in New Jersey, have an option, rather than a requirement, to offer equal benefits under the state’s Civil Union Act. Many companies are not exercising that option, even if State law, as is the case in New Jersey, provides that spouses and civil union partners are entitled to identical treatment." This differential treatment is common in states with civil unions such as New Jersey and Vermont.

However, Massachusetts has a much lower incidence of companies refusing to cover same-sex partners, notwithstanding the fact that these companies are under no more obligation to cover same-sex partners than those in New Jersey. The difference, the commission concludes is that

employers also understand that without the term "civil union" or "domestic partner" to hide behind, if they don't give equal benefits to employees in same-sex marriages, these employers would have to come forth with the real excuse for discrimination. Employers would have to acknowledge that they are discriminating against their employees because they are lesbian or gay . . . . Therefore, the existence of ERISA makes it all the more important to change the nomenclature of civil unions to marriage. As we've seen time and again in Massachusetts, the word "marriage" has great persuasive weight in getting companies to offer benefits notwithstanding ERISA.

Emergency and Medical Care

The general public is largely unaware of the rights and responsibilities surrounding civil unions. This creates impediments to exercising spousal rights and privileges as authorized by law.

A common theme in the testimony gathered by the Commission was that while marriage is universally recognized by the public, civil union status must be explained repeatedly to employers, doctors, nurses, insurers, teachers, soccer coaches, emergency room personnel and the children of civil union partners . . . . [The commission heard testimony] regarding medical personnel, school officials and government workers who denied access and decision-making authority to civil union partners, either initially or completely, because of a lack of understanding of the rights that flow from civil unions. Many witnesses said they would not have encountered the same level of resistance, or no resistance at all, had they been able to identify themselves as married.

In general, the public understanding seems to be that civil unions are not marriage, and from that they infer that rights and responsibilities must be different as well.

The Poor and Children

The disparity in treatment between married couples and civilly united couples affects the poor disproportionately. These are the people who can't afford to have legal documents drafted for them, and who can least afford the denial of health insurance.

Children of same-sex couples are also acutely aware that their parents' status is less than that of their peers:

An attorney and partner in a small law firm in Springfield testified about a family discussion in which his partner’s young nephew, to whom he is godfather, asked his mom: "If you and daddy are married and Uncle Timmy and Aunt Nancy are married and Aunt Debby and Uncle Bruce are married, why can't Uncle Bob and Uncle Chris get married?" Lucas' mother told him "Because it's against the law." Lucas' reply was, "Does that mean they're criminals, mommy?"

While this study is ongoing, it appears from the data gathered so far that the public perception of civil unions for same-sex couples is that they are not equal to marriage, and so they act accordingly. This is not surprising from a common-sense perspective. We intuitively expect things with different names to be different, and we will assume they are different until thoroughly convinced otherwise. Calling a same-sex union a civil union or domestic partnership is a signal to the general public that the government is being forced to give rights against to gay citizens against its will, and so will not fully embrace them like they would with "normal" citizens. As the commission noted, "relatives, medical caregivers, and individuals in positions of authority take cues from the government's decision to place same-sex couples outside of the institution of marriage." Segregation of same-sex couples out of marriage, while symbolic in nature, has substantive effects on the equal treatment of gay citizens.