TULANE JOURNAL OF LAW & SEXUALITY A Review of Sexual Orientation and Gender Identity in the Law VOLUME 22 2013 It’s [Not] a Black Thing: The Black/Gay Split over Same-Sex Marriage— A Critical [Race] Perspective Adele M. Morrison* I. INTRODUCTION ..................................................................................... 2 II. THE BLACK/GAY SPLIT ...................................................................... 11 A. Identified............................................................................. 12 B. Located ............................................................................... 13 III. CIVIL (MARRIAGE) RIGHTS: DIVISIONS OVER . ............................. 15 A. Immutability ....................................................................... 18 B. “Civil Rights” ..................................................................... 22 C. The Meaning(s) and Purpose(s) of Marriage ...................... 23 1. Religious Arguments ........................................................ 26 2. Secular Arguments ........................................................... 28 IV. THE SPLIT: A CRITICAL RACE THEORY PERSPECTIVE ...................... 32 A. (Dis)Interest [Di][Con]vergence ........................................ 33 1. Black Communities and Interest Divergence .................. 34 2. LGBT Communities and Disinterest Convergence ........ 37 * © 2013 Adele M. Morrison. Associate Professor of Law, Wayne State University Law School, Detroit, MI; LL.M., University of Wisconsin School of Law; J.D., Stanford Law School. I have much appreciation for the individuals and organizations that have contributed to ensuring the completion of this Article. Specific thanks for on-going support over the life of this work and/or assistance at crucial times go to Wayne State University Law School for summer research support; to attendees at Lat Crit, NEPOC, and the National People Of Color Legal Scholarship, conferences, and the Hastie Fellowship and Lutie Lytle Workshops, for critical and always supportive feedback; to my research assistants over the years, especially Aisa Villarosa Berg, Kristen Thomas, Kimberly Adams, and Stephanie Eisenberg. My gratitude, as always, goes to Camille Nelson, Angela Onwuachi-Willig, and Catherine Smith. Special thanks for detailed comments, both oral and written, go to Ann Cammett, Hazel Weiser, and Mario Barnes. My deepest appreciation and respect go to Adrienne Davis for her never-ending belief in this project and for being present in ways above and beyond the call of duty, and to Carol Browder for unsurpassed editorial acumen and seemingly eternal patience. 1 2 LAW & SEXUALITY [Vol. 22 B. Blindness and Intersectionality........................................... 40 1. Blind Intersectionality and LGBT Expectations ............. 41 2. Intersectional Blindness and Black Identity .................... 43 V. PRAXIS WHAT WE PREACH: FROM ANTI- TO ELEMENTAL ESSENTIALISM .................................................................................... 45 A. Find Another Reference Point ............................................ 48 B. Race Is Everything ............................................................. 49 C. An Antisubordination-Based Strategy ................................ 51 VI. CONCLUSION ...................................................................................... 52 I. INTRODUCTION On Wednesday, November 5, 2008, the sun rose over a United States that elected its first African American President, a historic occasion that thrilled many, especially Blacks. Yet there was a pall over California, a state where 60.9% of the electorate voted for Barack Obama.1 The cloud hung over supporters of same-sex marriage who were saddened by the fact that a majority of California voters had voted for Proposition 8 (Prop. 8), a ballot initiative that added an amendment to the state constitution defining marriage as between one man and one woman.2 This referendum brought an end to the right of same-sex couples to marry, which the California Supreme Court determined did exist under the state’s constitution just five months prior to the vote.3 In some corners, the postelection analysis as to why Prop. 8 passed became a blame game, with Black Californians as the main target.4 Blacks were singled out because, according to exit polling, they voted yes on Prop. 8 at 70%5 (a figure later challenged as being exaggerated),6 the largest percentage of any demographic. Marriage rights supporters, “No on 8” activists, and, particularly, lesbian and gay individuals were 1. Election Results 2008—California, N.Y. TIMES (Dec. 9, 2008), http://elections. nytimes.com/2008/results/states/california.html. 2. See SEC’Y OF STATE OF CAL., OFFICIAL VOTER INFORMATION GUIDE 128 (2008), available at http://voterguide.sos.ca.gov/past/2008/general/pdf-guide/vig-nov-2008-principal.pdf; see also CAL. CONST. art. I, § 7.5. 3. In re Marriage Cases, 183 P.3d 384, 399 (Cal. 2008). 4. See Dan Savage, Black Homophobia, STRANGER (Nov. 5 2008, 9:55 AM), http://slog. thestranger.com/2008/11/black_homophobia. 5. Analysis of California Proposition 8 Exit Poll Data, MADPICKLES.ORG, http://www. madpickles.org/California_Proposition_8.html (last visited Feb. 6, 2013). 6. See PATRICK J. EGAN & KENNETH SHERRILL, CALIFORNIA’S PROPOSITION 8: WHAT HAPPENED, AND WHAT DOES THE FUTURE HOLD? 9 (Jan. 2009), available at http://www.thetask force.org/reports_and_research/prop8_analysis (“Analysis of the full range of data available persuades us that the NEP exit poll overestimated African American support for Proposition 8 by ten percentage points or more.”). 2013] THE BLACK/GAY SPLIT 3 shocked by the loss and the fact that so many Blacks had voted against them.7 Yet Black organizations, especially churches, were cultivated as potentially fertile ground for anti-same-sex marriage votes8 and, in the lead up to Election Day 2008, were a major component of the “Yes on Eight” strategy.9 In fact, an anti-gay-marriage contingent had long been vocal within Black communities in California and across the nation, targeting Black churches as locations, and older churchgoing Blacks as individuals, to organize against marriage equality.10 However, the context in which Prop. 8 passed was unique because Barack Obama, a Black 11 man, was the Democratic Party’s presidential candidate. 7. See, e.g., Griffin, Andrew Sullivan Stirs Anti-Black Sentiment Among Gays, Then Condemns It, TRAIN WRECK POLITICS (Nov. 9, 2008), http://trainwreckpolitics.com/2008/11/09/ andrew-sullivan-stirs-anti-black-sentiment-among-gays-then-condemns-it/; Maulana Karenga, Blaming Blacks for White Behavior, L.A. SENTINEL (Nov. 20, 2008), http://www.la sentinel.net/index.php?option=com_content&view=article&id=7035:blaming-blacks-for-white- behavior&catid=89&Itemid=179; Ta-Nehisi Coates, Prop 8 and Blaming the Blacks, ATLANTIC (Jan. 7, 2009, 11:14 AM), http://www.theatlantic.com/culture/archive/2009/01/prop-8-and- blaming-the-blacks/6548/; Pam Spaulding, The N-Bomb Is Dropped on Black Passerby at Prop 8 Protests, HUFFINGTON POST (Nov. 10, 2008, 10:09 AM), http://www.huffingtonpost.com/pam- spaulding/the-n-bomb-is-dropped-on_b_142363.html; Pam Spaulding, The Meme That Will Not Die: Blacks Enabled Prop 8 to Pass, HUFFINGTON POST (Dec. 8, 2008, 12:45 PM), http://www.huffingtonpost.com/pam-spaulding/the-meme-that-will-not-di_b_149280.html. 8. See Lynette Clemetson, Both Sides Court Black Churches in the Battle over Gay Marriage, N.Y. TIMES (Mar. 1, 2004), http://www.nytimes.com/2004/03/01/national/01CHUR. html; Allen G. Breed, Blacks Divided over Use of Civil Rights Imagery To Describe Gay Marriage Push, FLA. TIMES UNION (Mar. 7, 2004), http://www.jacksonville.com/apnews/stories/ 030704/D815AP582.shtml (“[S]ome conservative groups are appealing directly to black congregations to block attempts to co-opt the language of the civil rights movement in the gay marriage debate.”); Mark Sullivan & Sean Smith, BC Experts Mull Gay Marriage Decision, B.C. CHRON. (Nov. 26, 2003), http://www.bc.edu/bc_org/rvp/pubaf/chronicle/v12/n26/goodridge.html (“Republicans will use the issue of same-sex marriage to try to break the lock Democrats have heretofore held on black voters.”). 9. See Cara Mia DiMassa & Jessica Garrison, Why Gays, Blacks Are Divided on Prop. 8, L.A. TIMES (Nov. 8, 2008, 1:17 PM), http://articles.latimes.com/2008/nov/08/local/me-gay black8; Darren Lenard Hutchinson, Anti-Gay Group Thanks Obama, Seeks To Exploit Black Homophobia To Constitutionalize Bigotry, DISSENTING JUST. (Oct. 6, 2008), http://dissenting justice.blogspot.com/2008/10/same-sex-marriage-and-racial-justice.html. 10. See Jesse McKinley, Same-Sex Marriage Ban Is Tied to Obama Factor, N.Y. TIMES (Sept. 21, 2008), http://www.nytimes.com/2008/09/21/us/politics/21gay.html?_r=0 (reporting that the American Family Association, which donated $500,000 to support Prop. 8, posted a video “featuring a clip of the Rev. Martin Luther King Jr. while a speaker comments on the duty of black pastors to speak out in favor of Proposition 8”); Richard Kim, Marital Discord: Why Prop 8 Won, NATION (Nov. 6, 2008), http://www.thenation.com/article/marital-discord-why-prop-8- won (recounting what the author refers to as “the Yes on 8 coalition’s staggering disinformation campaign,” which included a flyer “targeting black households”). 11. See McKinley, supra note 10. 4 LAW & SEXUALITY [Vol. 22 Fast-forward to 2012 and a new presidential election cycle. Prop. 8 has been challenged in both state and federal court.12 The United