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Adele M. Morrison, It's [Not] a Black Thing: The Black/Gay Split over Same-Sex Marriage-- A Critical [Race] Perspective, 22 Tulane Journal of Law & Sexuality 1 (2013) (260 Footnotes) (Full Document)

AdeleMMorrisonOn 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. 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. 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.

In some corners, the postelection analysis as to why Prop. 8 passed became a blame game, with Black Californians as the main target. Blacks were singled out because, according to exit polling, they voted yes on Prop. 8 at 70% (a figure later challenged as being exaggerated), the largest percentage of any demographic. Marriage rights supporters, “No on 8” activists, and, particularly, lesbian and gay individuals were shocked by the loss and the fact that so many Blacks had voted against them. Yet Black organizations, especially churches, were cultivated as potentially fertile ground for anti-same-sex marriage votes and, in the lead up to Election Day 2008, were a major component of the “Yes on Eight” strategy. 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. However, the context in which Prop. 8 passed was unique because Barack Obama, a Black man, was the Democratic Party's presidential candidate.

Fast-forward to 2012 and a new presidential election cycle. Prop. 8 has been challenged in both state and federal court. The United States Court of Appeals for the Ninth Circuit held it was unconstitutional, and Prop. 8 proponents appealed the decision to the United States Supreme Court. On Wednesday, May 9, 2012, President Obama announced, “I've just concluded that--for me personally . . . I think same-sex couples should be able to get He made this statement just one day after North Carolina became the thirty-first state to pass a constitutional amendment defining marriage as between one man and one woman, thus barring same-sex marriage. Though same-sex marriage had remained a newsworthy story between 2008 and 2012, many factors brought the issue of the Black community's stance on same-sex marriage back to the forefront of the debate: the President's statement, the vote in North Carolina, and the fact that on election day 2012, voters would be going to the polls in four states to vote on same-sex marriage and whether or not to reelect a Black president.

In North Carolina, both Blacks, who are primarily registered as Democrats, and Republicans were generally against same-sex marriage. This anti-marriage-rights alliance furthered the belief that, as in California, Blacks and gays, both Democratic Party bases, were divided over the issue. President Obama's statement, seemingly forced by Vice President Biden's public comments that he was “absolutely comfortable” with same-sex marriage, ignited much discussion about whether or not Black voters, who turned out in record numbers to vote for him in 2008 when he was against same-sex marriage, would this time reject President Obama because of his support for same-sex marriage. In media coverage after the statement, some argued that Obama's support of marriage equality-- essentially choosing his so-called “gay base” over his “Black base”--would hurt his reelection chances because Blacks would fail to turn out to vote for him in the same numbers. Others noted that in making this announcement, Obama's support within the lesbian, gay, bisexual, and transgender (LGBT) community and his fundraising among marriage supporters rose. A further incentive for President Obama to articulate his position may have been to quell possible protests in North Carolina, where the 2012 Democratic Convention was being held. At the time of President Obama's announcement and the vote in North Carolina, Blacks and gays, both perceived as primarily liberal and a part of the Democratic base, were portrayed in media coverage as split over the issue of marriage. Even with rising support among Blacks for same-sex marriage, the perceived division persists. This Article explores the assumptions about this race/sexuality-based divide to shed light on the manner in which these constructed divisions maintain a dominant/subordinate paradigm that continues to negatively impact both Black and gay communities.

The existence of a Black/gay split over social or legal issues is not a new idea or point of discussion. In fact, divisions between subordinated communities over social issues are not uncommon. Neither is it uncommon for dominant groups to work to create new or deepen existing divides between subordinated groups in order to solidify their dominant status. This Article focuses on dominant-group influences over subordinate-group divisions in the context of Blacks and gays and same-sex marriage.

In this Article, though I use the broad terms “Blacks” and “gays” or “Black community” and “gay or LGBT community,” there are particular groups within each community to which my assertions herein apply. This work uses these popularly understood terms as generic markers in order to speak about particular segments of each group. They signify mainstream individuals and organizations within Black or gay communities who are identified as representative of or as having opinions characteristic of each group. In addressing Blacks and gays, being both myself, I want to reach all who are connected to either or both communities.

The intent of this work is to address the real, perceived, or contrived conflicts that arise over legal and political struggles for full marriage rights for same-sex couples, to suggest why they exist, and to advance possibilities for addressing the conflicts. I argue that Black/gay splits over marriage are not actual divisions based on race and sexual orientation but are constructed as such by those opposed to same-sex marriage to win over a small, but important, part of the electorate. Meanwhile, same-sex marriage supporters willingly believe the existence of the split as a way to dismiss Blacks and Black community issues. Using Critical Race Theory (CRT) as my foundation, my argument incorporates the notion of dominant-group or dominant-identity influencing subordinated communities susceptible to the influence because of shared aspects of a dominant trait. With regard to Black identity, the normative dominant trait at issue is heterosexuality; however, in the gay community, the dominant identity is whiteness (and often Because these dominant aspects of identity that occur within subordinated groups often align with the group that is singularly identified with that dominant identity (heterosexuals and whites), the subordinated group is influenced by the dominant group's particular agenda. This is a split-enhancing, if not split-producing, influence that limits advancement opportunities for both subordinated groups and maintains the existing discriminatory paradigm that includes racism and homophobia. It is this dominant identity and the group's influence that constructs the notion of Black homophobia as particularly virulent, or that the Black community's opposition to same-sex marriage is somehow extraordinary. That the construct of a Black community as exceptionally homophobic is false buttresses my assertion that lack of support for same-sex marriage rights is not uniquely a Black thing.

This work uses CRT as a way to consider the Black/gay split over marriage rights and to critique Black communities' and LGBT communities' approaches to areas of contestation. I argue that racialized divisions over marriage rights are constructed by, and for the benefit of, majority groups, such as whites, males, and heterosexuals. Keeping subordinated groups divided maintains white and heterosexual domination. This is not to say that there are no differences of opinion or varied beliefs regarding marriage rights within the subordinated groups, but I assert that marking each opinion as belonging solely to one subordinated group causes fissures between Black and LGBT communities. I argue that Blacks and gays have more commonalities than differences and should not be on opposite sides of this issue. Pitting subordinate communities against one another, and creating or insuring Black/gay splits over facets of the marriage debate, such as immutability, civil rights discourse, and the definition of marriage, are key to maintaining the dominant/subordinate status quo. My core argument is this: Blacks and gays should not be divided over the issue of access to civil marriage for same-sex couples because it is not an issue of race versus sexual orientation. Critical Race Theory helps explain the development of this split. It also provides rationales for mending the divide and strategies for doing so.

The three core CRT principles that I modify and use to interrogate the “Blacks versus gay” construct are (1) interest convergence, (2) intersectionality, and (3) antiessentialism. Interest convergence is Professor Derrick Bell's foundational theory that claims that advances in equality, for a minority group, occur only if and when those advances benefit the interests of a majority group. Intersectionality, from Kimberle Crenshaw, explains that those who are multiply subordinated are impacted differently than those who share only one subordinated identity. Angela Harris's work is my primary source for defining antiessentialism, which characterizes a group as not having a core essence by which all members can be defined or identified. Also incorporated into the antiessentialism aspect of this work is an acknowledgement that strategic essentialism--in which overly simplified identities are tactically employed--is necessarily a part of an antisubordination strategy.

Part II begins by identifying and locating the Black/gay split. I determine that there is actually more than one locus of division between these two groups. While introducing multiple locations where Black and gay perspectives and experiences divide, this Article focuses mainly on the rift between the two communities around the same-sex marriage issue. Part III introduces three areas of contestation: immutability, civil rights, and both religious and secular arguments over the meaning and purpose of marriage and briefly addresses how, in the discourse surrounding these issues, gays are constructed as winning, which in turn constructs Blacks as losing. Part IV explains how modifications of the three core CRT principles--interest convergence, intersectionality, and antiessentialism--can be used as tools to explain Black/gay splits over same-sex marriage. The first idea carries two labels when applied to each community: interest divergence when it pertains to Black communities and disinterest convergence when it pertains to LGBT communities. The next focus is on explaining the impact of the split on the principle I call “blind intersectionality” when referring to LGBT communities, or “intersectional blindness” when tackling the issue in Black communities. I turn to praxis in Part V, introducing multiple essentialisms (anti-, strategic, and elemental) as the theoretical underpinning for designing ways to avoid and mend Black/gay splits. I conclude that because of its focus on antisubordination and a transformation of power, utilizing CRT-based strategies can be successful in mending splits between subordinated communities--in this case Blacks and gays over civil marriage rights.

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This Article utilizes the ideas of Critical Race Theory as manifested by disinterest convergence/interest divergence and blind inter-sectionality/intersectional blindness, and applies them to the splits between Black and gay communities. The ideas are also applied to debates over Black and LGBT identities and reveal some elements essential to building meaningful coalitions. At this time, mainstream LGBT organizations are heavily focused on marriage while Black organizations have diverse foci aimed at ending racial and economic disparities. However, each community's goals are rooted in certain essential elements, such as equality and antisubordination. Both communities can work toward equality and ending subordination without being pitted against each other and without challenging deeply held beliefs. Each group can also call on the other to address the racism, homophobia, and heterosexism internal to each community. There has been dramatic progress between the 2008 and 2012 elections, both of which resulted in a Barack Obama presidency, but with dramatically different results for same-sex marriage. The 2008 election cancelled marriage rights for some in the most populous state in the country, while the 2012 voting extended marriage in more states. It is arguable that this change came because both Blacks and gays began to mend the split by realizing that an anti-same-sex marriage position is not a Black thing.

. © 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.