I've said that there's a pattern that equal protection cases follow. At one point in time, a form of discrimination is largely unchallenged. It seems reasonable to most people. Then, a social movement arises to challenge it. Eventually, that social movement prevails. The discrimination seems outrageous in retrospect. People look back and say how could anyone have thought that was okay. What do courts have to do with this? Well, what courts say about discrimination, depends on at what stage in this process you ask them. If you ask them about the discrimination when most people think it's reasonable, that's what they'll say. This is sensible, this is constitutional, that's what the Supreme Court says about racial segregation in Plessy versus Ferguson in 1896. If you ask the court later, when the social movement has changed minds it will say something different. So 60 years later in Brown, the Supreme Court says no, this is stigmatic, this is oppressive, this is unconstitutional. That's controversial at the time, but nowadays no one suggests that racially segregating public schools is okay. We see the same thing with sex discrimination. In 1872, the Supreme Court says it's fine for Illinois to exclude Myra Bradwell from the practice of law. Women are timid and delicate, and should be wives and mothers, not lawyers. In the 1970s though, it takes another look at this idea and decides that this is not a truth, not the law of the Creator, as Justice Bradley put it. It's a stereotype and the government can't base its laws on stereotypes. And what's happening right now, before our eyes is a similar progress with sexual orientation. Same-sex sexual activity was banned in every state in the United States until 1961, when Illinois decriminalized it. Other countries lifted their bans much sooner. Until 1973 the American Psychiatric Association characterized homosexuality as a mental disorder. And when in 1986 a challenge to a ban on same sex sexual activity came to the Supreme Court, the majority said that the argument was at best facetious. That case is called Bowers against Hardwick. It's a 5-4 decision, so it's not like Plessy which was 8-1, or Bradwell which was 9-0. It shows that the LGBT rights movement is making progress. It's just not quite there yet. In 2003, the Supreme Court revisits the question and overrules Bowers. Same-sex relationships, it says, do deserve respect. And same-sex intimacy can't be prohibited. And from that case, Lawrence against Texas, the movement goes on to other issues. Some state courts strike down same-sex marriage bans under their state constitutions. In 2013, in the Windsor case, the Supreme Court says that the federal government must recognize same-sex marriages that are valid under state law. So if you're a Massachusetts same-sex couple, for instance, you can file a federal tax return as married. And, of course, in the summer of 2015 in the Obergefell decision, the Supreme Court said that same sex couples have a Federal constitutional right to marry. That's a 5-4 decision, a close one. Chief Justice Roberts dissents, protesting that the Constitution says nothing about sexual orientation equality. But you could say exactly the same thing about sex equality. It's not an objection to Obergefell unless you think the sex equality cases are wrong, too. Justice Scalia also dissents. He says that restricting marriage to opposite sex couples was accepted when the equal protection clause was ratified, and thus can't later be held unconstitutional. But, you could say the same things about segregated schools or interracial marriage bans. So that's not an objection to Obergefell either, unless you think that Brown and Loving are wrong. Anyway, five four shows that the controversy isn't over, but the direction is clear. So is this just the same old story? There are important similarities between these three civil rights movements: race, sex and sexual orientation. But there are also some interesting differences. Here is one. The basic problem in race discrimination, and to some extent also with sexual orientation, is treating people differently, when there's no good reason to do so. And what that means is ithat f you just treat everyone the same, you've solved most of the problem. This is not so with sex discrimination, for two reasons. First, men and women really are different. If you have physical fitness standards that rely on how many push-ups people can do, that favors men. If you have a business world, where people need to work insane hours until they're established in their careers. So they postpone having children until 35 or so. That favors men too. And the second reason is, we have different ideas and expectations about the roles of men and women. Whether these are based on biological differences or not. So suppose the law treats everyone the same, and employers treat everyone the same. You can have equality in the working world. But at home, with a married couple, the woman tends to do more childcare and housework. So this too is a system that favors men. It favors them at home, because they do less work there. But it also favors them at work, because they have more time to devote to work. So the married man with kids can still work long hours, while the married woman with kids has a harder time doing that. And what that means, is that if we want men and women to be equal, the Constitution can't do it, the law can't do it. People have to change. Here's another difference. To what extent do the effects of discrimination linger? If we want equality, to what extent might it be necessary to try to make up for past discrimination? The effects of race discrimination do persist, because race is heritable. Mixed race couples complicate this. But generally, if your a member of a racial group discriminated against in the past. Your parents suffered from it, and your grandparents, and your great grandparents. And those sufferings add up. You get less money and other types of advantage passed down from one generation to another. Not so with sex discrimination. Because, generally, half your ancestors are male and half of them are female, though same-sex couples complicate this, and not so with sexual orientation either, because it's not heritable, like race. So it's maybe a little surprising that the Supreme Court has said that race-based affirmative action is almost never permissible. While sex or sexual orientation based affirmative action tends to be okay. And here's the third interesting difference I want you to think about. The movement for racial equality takes a long time. From Plessy to Brown is 60 years. Sex equality is slow too, It's 100 years from Bradwell to the first case where the Supreme Court holds sex discrimination unconstitutional. Sexual orientation has moved a lot faster. Bowers to Lawrence is only 17 years. Lawrence to Obergefell is another 12. Why is that? I have a theory. You can decide if it makes sense. It's that different kinds of discrimination rely on different attitudes, and require different things to support them. Race discrimination, I said, was openly derogatory. Segregation was justified on the theory that blacks weren't as good as whites. That justified segregation, but it also required it. Because if blacks and whites interacted more, people would come to see that the differences weren't so great. So segregation is what allows the derogatory attitudes to persist. You didn't have segregation with sex discrimination. You couldn't, because for one thing women were integrated into the family. They were men's wives, sisters, daughters, and mothers. And without segregation, you couldn't have the same kind of derogatory attitudes. Men love their female relatives. So what justified sex discrimination was what I call romantic paternalism. Not that women weren't good enough to be lawyers, but that they were too good, too pure. And those beliefs persisted. Because they were beliefs you could have about someone you knew well, someone you loved. Now, how does sexual orientation discrimination look from this perspective? The attitudes behind it are like those behind race discrimination. They're derogatory. Homosexual orientation was considered a disease. Homosexual activity was a crime. But the distribution of orientation is not like race. The LGBT population is integrated into the straight population like women are integrated in the male population. The people who are most opposed to gay rights are as likely as anyone else to have a gay child. And this structure derogatory discrimination but integration including integration within families doesn't last. People with gay children tend to change their minds. We used to have something like segregation with sexual orientation. We used to have the closet, so that even if your child or brother was gay, you wouldn't know. Justice Powell, who provided the fifth vote in Bowers against Hardwick, told one of his clerks that he'd never met a gay man. And the clerk he said that to was gay. But once people started feeling able to be open about their orientation, that kind of segregation broke down. And that explains why the LGBT rights movement has succeeded as quickly as it has. So these are three social movements we've seen making equality claims, first to society and then to courts. When they win with society, victory in the courts follows. The question is, what will the next one be? [MUSIC].
