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Russell K. Robinson, Marriage Equality Post-Racialism, 61 UCLA L. Rev. 1010 (2014).

In 2008, America elected its first black president. In the same election, a slim majority of Californians voted to enact Proposition 8, a ballot initiative that amended the California constitution to prohibit legal recognition of same-sex marriages. Almost immediately, the election of the nation’s first black president and the enactment of Proposition 8 were linked in the media coverage of these two events and in the popular imagination. Black voters, it was argued, turned out in droves to support Barack Obama; and these same voters cast votes to deny gay men and lesbians the right to marry. According to the conventional wisdom, a group that historically struggled against prejudice and oppression had furthered the oppression of another minority group.

In his recent article, Marriage Equality Post-Racialism, Russell Robinson takes on this stock narrative of the 2008 election, and in so doing, launches a broader discussion of the racial discourse and politics of the marriage equality movement. As other scholars have done, Robinson relies on empirical evidence to dispute the claim that black voters were solely responsible for Proposition 8’s enactment. Critically, however, Robinson goes beyond merely setting the empirical record straight to offer astute observations about the intersection of race and sexuality, and the role of race in the effort to secure marriage equality for LGBT persons.

In particular, Robinson surfaces a shift in the discourse surrounding the marriage equality movement. After the enactment of Proposition 8, gay rights activists and pundits argued that black support for Proposition 8 constituted a betrayal of the gay community—a community that, like the black community, was engaged in a struggle for core civil rights. According to Robinson, this “black betrayal hypothesis” relies on analogies between the black civil rights movement and the LGBT rights movement. Indeed, it rests on the view that the black people and LGBT people have a common legacy of shared struggle against similar forces of discrimination and oppression. And as Robinson documents in painstaking detail, part of the strategy to secure marriage equality has emphasized these shared connections between the struggle for racial equality and the gay rights struggle in order secure the right to marry for same-sex couples.

To be clear, Robinson does not dispute that homophobia and racism share common elements. However, his fundamental argument is that such analogies, and the discursive shifts they undergird, are ultimately unproductive. Arguing that “gay is the new black,” Robinson maintains, elides important distinctions in the histories of each group and their respective struggles for civil rights. Further, the comparison suggests that the struggle for black civil rights has been successfully concluded and that the marriage equality is the last civil rights frontier to be conquered. And most troublingly to Robinson’s mind, the effort to analogize the LGBT rights struggle to the black civil rights struggle overlooks those individuals who belong to both groups.

In documenting the dangers of analogy (and the discursive moves it underwrites), Robinson offers three key insights. First, he disputes the claim that African Americans “pos[e] a unique threat to marriage equality” because of rampant homophobia in the black community. According to Robinson, one of the most troubling aspects of the gay-black analogy and the “black betrayal hypothesis” is that they mark African Americans as hyper-homophobic (and indeed, pathological in their homophobia), while discounting the degree to which other demographic groups, such as the religious or the elderly, may also hold homophobic views. Moreover, the emphasis on homophobia among blacks occludes the fact that “there remains a significant amount of old-fashioned racism in the gay community.” In making this observation, Robinson goes beyond the descriptive to make a normative claim—“holding minorities to a higher standard in terms of supporting other minority groups effectively makes prejudiced majority group members less blameworthy.” Such charges, he posits, divert much-needed attention from “the shared social obligation to promote equality.”

Robinson’s second insight concerns the use of race in marriage equality litigation. Relying on the briefs and other papers filed in various legal challenges to opposite-sex-only marriage regimes, Robinson documents the way in which race figures prominently in marriage equality advocacy. For example, in an effort to secure suspect class status (and the more rigorous judicial scrutiny that such status requires) marriage equality advocates frequently argue that gay men and lesbians are less politically powerful than African Americans. Such claims, Robinson contends, result in an unfortunate “oppression Olympics,” pitting blacks against LGBT persons and overlooking the degree to which both groups remain marginalized in the political process. This “oppression Olympics” relies on a postracial narrative that posits blacks as “doing ‘quite well,’ while [lesbians and gays struggle] to achieve parity.” This narrative, in Robinson’s view, is inattentive—indeed, indifferent—to “contemporary black struggles with mass incarceration, homelessness, unemployment, and health disparities, such as HIV/AIDS.” Instead, as the claims are framed in marriage equality briefs, the “central measure of progress is the right to marriage. Because “blacks can marry, and gay people cannot,” blacks have progressed further and enjoyed more political capital than their gay and lesbian counterparts. In this sense, marital, rather than material realities frame the understanding of equality.

The intense focus on marriage equality as the lynchpin of the LGBT rights struggle informs Robinson’s third claim: that the effort to secure marriage equality (and the analogies and discourse that support the effort) reflects a bid for formal equality for gay men and women. According to Robinson, marriage equality advocates “tend to endorse” a notion of equality that “simply requires law on its face to treat people without regard to sexual orientation.” While this kind of equality is attractive in principle, Robinson argues that it is deeply impoverished, and would do little to benefit the most marginalized in the LGBT community, including those LGBT persons who also identify as racial minorities. To this end, Robinson contends that the marriage equality movement’s embrace of formal equality is myopic and “short-sighted.” As he notes, “[m]arginalized members of the LGBT community, including people of color and those who are socioeconomically disadvantaged, are least likely to find a marriage license sufficient” to combat the enduring effects of homophobia and racism that they encounter in their daily lives. Instead of focusing exclusively on expanding the right to marry, the LGBT rights movement should be more attentive to other structural remedies that would address these issues.

There is much to recommend this article. Robinson is among the best of a cohort of legal scholars that take an intersectional approach to contemporary legal problems. In this regard, Marriage Equality Postracialism is a much-needed intervention that focuses on this critical issue from multiple perspectives.

In drawing attention to the tensions between race and sexual orientation that have come to the fore in the marriage equality effort, Robinson is sure to draw objections, if not outrage. Indeed, his depiction of the prevailing marriage equality discourse and its likely consequences is at once sobering and discomfiting. Nevertheless, Robinson surfaces important issues about the intersection of race, class, and sexual orientation, and initiates a long-overdue conversation regarding how social movements rely on and build upon the work of other movements in pressing for their own claims.

As importantly, Robinson complicates the prevailing discourse of marriage as the end-all-be-all of rights claims. Certainly, marriage equality will address inequities that plague the lives of some LGBT people, but, as Robinson observes, it will not solve the broader range of institutional and systemic inequalities that persist in the lives of those gays and lesbians who experience multiple forms of discrimination and marginalization.

In short, Robinson has crafted a disquieting vision of a contemporary social movement that is swiftly approaching the successful conclusion of its mission to secure marriage equality. As it reaches that conclusion, Robinson’s article provides a much-needed opportunity to take stock of this success, and to ask, whether, in all cases, the ends justify the means.

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Cite as: Melissa Murray, The Oppression of Analogy, JOTWELL (December 8, 2014) (reviewing Russell K. Robinson, Marriage Equality Post-Racialism, 61 UCLA L. Rev. 1010 (2014)), http://family.jotwell.com/the-oppression-of-analogy/.