Natural Allies

Like many progressives, I’m thoroughly dismayed by the passage of Proposition 8 and its ilk in this election. And I’ve spent the 10 days since talking with gay and straight friends about the best way to move forward now that the state-level legalization approach is beginning to feel like a giant game of Othello (four tiles flip white, then eight tiles flip black).

It’s understandable when you’re the butt of prejudice to feel like yours is the shortest straw: a lesbian reader at the NYTimes tells Judith Warner that homophobia is the last and only socially-acceptable prejudice in America today. As a young woman in the boys club of business journalism, I beg to differ: sexism is alive and well too. And if anyone doubts it, they need only look to the coverage of Sarah Palin and Hillary Clinton in this campaign. Like their politics or not, there was an awful lot of gender-biased vitriol spewed at them, and no attempt by news organizations to apologize or correct the behavior. Put this together with Proposition 8 and you see that it’s sexuality itself that is the last acceptable fault line of prejudice.

Women’s lib activists will cry foul at this I’m sure: they have been drawn into false kinships before. In the early 19th and early 20th centuries, progressive women joined in the fight for labor rights in the hope that the progressive movement would open doors on all fronts. In the 1960s and 1970s, women’s lib folded in with the Civil Rights Movement only to find itself standing outside in the cold when the crusade was over. But gay rights and women’s rights movements are actually pushing against the same barriers, where women and blacks or women and the laboring poor were fighting fundamentally separate, though equally valid, battles.

And as in any rights campaign, the key issue here is the role of the law in driving and shaping culture. Cultural prejudice against blacks isn’t gone but Obama’s election is a sign that it’s declining; that’s because legislation in the 1960s made structural racism illegal and structures, in the long term, DO shape the cultures of people who live in them. Sexism won’t go anywhere until it too is condemned on the legal books, until we pass the Equal Rights Amendment that Congress abandoned in 1970.

Slate contributor Richard Ford agrees. In trying to explain why liberal Obama could win a landslide while a conservative ballot measure won too, he says gay rights and racial equality are apples and oranges. The distinction is the differing treatment of race and sex in the law:

“Sex discrimination is not subject to the same exacting scrutiny as race discrimination under constitutional law, and federal employment law allows many types of it. For instance, courts have routinely upheld workplace rules that enforce sex-specific dress and grooming norms against legal challenge. Employers lawfully can require women to wear makeup and feminine attire and prohibit men from wearing jewelry and long hair. By contrast, they can’t have one set of grooming rules for white employees and another one for black employees. Civil rights laws explicitly allow employers to defend a claim of sex discrimination by arguing that male or female sex is itself a job requirement—say, for prison guards who do strip searches or for restroom attendants. By contrast, as a matter of federal law, no job can be the exclusive province of white people, or black people, or Asians or Latinos.”

If Ford is right, both gays and women will ultimately need protection at the national level. Many legal theorists say the Equal Rights Amendment–which bars any discrimination on the basis of sex–properly applied, would cover both groups: in many states, laws against sex discrimination have been used in the courts to protect gay rights. Passing a broad ERA would allow such decisions on the Supreme Court level, and that would be the end of the Prop 8s.

Indeed, I think it might be time for a second sexual revolution, one that frames the fight for women’s rights and gay rights jointly as a fight to disentangle sexuality from politics. Any takers?