Tuesday, April 1, 2008

Interracial vs. same-sex marriage: the relevance of Title VII

From the beginning of modern marriage equality litigation in Hawaii to the pending cases in California and elsewhere, much of the legal debate has centered on the relevance of Loving v. Virginia. Marriage equality proponents have argued that miscegenation laws violated Equal Protection in a simple and straightforward way: by denying a person their choice of spouse because of their own race. For example, a man was barred from marrying a white woman because he was black, whereas he would not have been barred from so doing had he been white. It follows from this interpretation that bans on same-sex marriage are discriminatory in the same way: a person is barred from marrying a female person because she is female, whereas she would not have been barred from so doing had she been male.

The counterargument is that this misunderstands the concept of discrimination and the holding of Loving. While there may be a conceptual parallel between interracial and same-sex marriage bans, this was not the basis of the Equal Protection holding in Loving, which was focused on the clear intent and effect of miscegenation laws to promote white supremacy. Bans on same-sex marriage affect men and women equally: all are prohibited from marrying a person of the same sex. Put another way, the prohibition is not categorical but relational, and its effects are sex-neutral.

I was reminded of this debate today by a Second Circuit decision that concerns not the Equal Protection Clause but Title VII of the Civil Rights Act. In today's decision, Holcomb v. Iona College, the Second Circuit followed three other circuits in holding that, when an employee is fired because he or she is in an interracial marriage, they are subjected to race discrimination under the Act. The defendant's argument was similar to the states' arguments in favor of their marriage bans: in such a situation, the individual is not being discriminated against based on his own race, but on the interracial nature of the marriage, something not covered by Title VII. Said the court:
We reject this restrictive reading of Title VII. The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.
The court quoted other decisions to the same effect:
Plaintiff has alleged discrimination as a result of his marriage to a black woman. Had he been black, his marriage would not have been interracial. Therefore, inherent in his complaint is the assertion that he has suffered racial discrimination based on his own race.
This is the prevailing view of "associational discrimination" under civil rights statutes. I can see no reason why the same reasoning should not apply to Equal Protection principles.

It is true, of course, that whether discrimination is "because of" x or y is subject to facile conceptual manipulation: where a decision is made that x and y should not go together, I see no reason why framing the decision as x-neutral, by focusing on the relational aspect of the rule, is any more or less logical in the abstract than framing it as x-based, by focusing on the individual x.

But in the real world, where x and y are people, we have quite sensibly chosen in the context of race to see such decisions as discriminatory. There is no indication that the Title VII decisions are based on the underlying ideology or agenda of the decisionmaker; rather, they are based on a common-sense analysis of application of the rule against discrimination. These cases should provide substantial support for the reasoning of marriage equality advocates.

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