Marriage Equality and Post-Racialism

Works-in-Progress Series

Featuring Russell Robinson, Professor of Law, UC Berkeley School of Law

Wednesday, October 17, 2012     
12:20 p.m. -1:40p.m.
UCLA School of Law – Room 1314
*Lunch will be provided. Please RSVP.

Click here to RSVP or call (310) 267-4382.


Click here for the article posted in UCLA Law Review.

When California’s Proposition 8 eliminated the right to marry a person of the same sex, it aggravated a fissure between the black community and the gay community.  Though Prop. 8 had nothing to do with race on the surface, the controversy that followed its passage was charged with racial blame-making.  This Article uses the Prop. 8 controversy, including the ensuing Perry litigation challenging the law, as a window into relations between the black and gay communities.  Although the marriage equality movement bills itself as a descendant of the black civil rights movement, it often treats its forefather as dead:  The political rhetoric and legal arguments of the gay rights movement routinely embrace post-racialism, the notion that American society has moved beyond racial difference and hierarchy.  Such arguments imply that the struggle for racial justice is over, with gays supplanting blacks as the paradigmatic stigmatized minority.  In the words of The Advocate, the largest LGBT periodical, “Gay Is the New Black.”

This is the first piece to identify the post-racial narratives at the heart of marriage equality argumentation—in the media, on the streets, and in the courts.  I show that such claims reflect “oppression Olympics,” undermine black-gay relations, and are not dictated by constitutional precedent.  Moreover, such claims may inadvertently constrict equality for both groups, marking the end of civil rights.  I urge the marriage equality movement to attend to race carefully, taking account of the history of the Supreme Court’s application of strict scrutiny to race and the on-going subordination afflicting the black community decades after securing formal equality.  This analysis casts doubt on whether the LGBT community should aspire to be “the New Black.”  Attending to the trajectory of black claims for civil rights could lead marriage equality advocates to create doctrinal space for remedial efforts necessary to transform formal equality into equality in fact.

Russell Robinson is a Professor of Law at Berkeley Law. Prior to joining UC Berkeley, Robinson was Professor of Law at UCLA. Robinson graduated with honors from Harvard Law School (1998), after receiving his B.A. summa cum laude from Hampton University (1995). Robinson clerked for Judge Dorothy Nelson of the Ninth Circuit Court of Appeals (1998-99) and for Justice Stephen Breyer of the U.S. Supreme Court (2000-01). He has also worked for the U.S. Department of Justice, Office of Legal Counsel (1999-2000) and the firm of Akin, Gump, Strauss, Hauer and Feld in Los Angeles, practicing entertainment law (2001-02). Robinson’s scholarly and teaching interests include antidiscrimination law, race and sexuality, law and psychology, constitutional law, and media and entertainment law. His most recent article is “Masculinity as Prison: Sexual Identity, Race, and Incarceration,” 99 Calif. L. Rev.1309 (2011).

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