As the U.S. Supreme Court ponders whether there’s any sort of federal right to gay marriage, the justices might want to consider one little peek into the wider world of discrimination that gays in America still suffer.
According to a recent article in The New York Times, federal authorities "regularly isolated" immigrants waiting for hearings in solitary confinement "when the immigrant was gay."
Take a minute to process that. For too long, homophobes of all stripes have slandered lesbian, bisexual, gay and transgender people by claiming that they should "stay in the closet." Those are evil words. But they’re just words. And then along come some immigration guards who, whatever their motivations, took that taunt and twisted it into torture. They shoved human beings into small rooms, alone for weeks, behind closed doors with metal locks. For being gay.
For anyone who thinks that having the right to say "I do" will fix the problem, it won’t. When that sort of abuse surfaces, it’s merely the business end of a deeply fixed mindset, consisting of both outright violence and casual callousness. This attitude goes far beyond the conduct of a few guards. Simply put, gay marriage won’t end gay bashing.
The Obama administration, to its credit, is arguing against the law that prohibits any recognition of same-sex marriage by the federal government. Let’s say that it shoots the moon: The Supreme Court agrees and strikes down the law, perversely called the Defense of Marriage Act. If that happens, the number of states forced to recognize gay marriage will be precisely zero. As the president told ABC News last May, "Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate."
While that allegedly "healthy process" drags on, here’s what gays in America are putting up with. According to the Federal Bureau of Investigation, in 2011 — the most recent year for which statistics are available — 1,572 people became victims of hate crimes because of their sexual orientation. That’s more than 20 percent of the total. Compare that with 1996, the earliest year for which the FBI posts similar statistics. Back then, there were 1,281 victims, or about 11.6 percent of all hate crimes. That’s a nearly 100 percent increase in the frequency of these hate crimes. That’s hardly surprising — only 30 states even have laws banning hate crimes on the basis of sexual orientation or gender identity, according to the National Gay and Lesbian Task Force.
And this: Earlier this year, reports emerged that recruiters at National Football League training camps screened some prospects on whether they’re gay. Again, not surprising — only 21 states ban discrimination on the basis of sexual identity and gender identity.
Only 16 states allow same-sex couples to adopt children from other parents or from government custody, according to a report by Human Rights Campaign, an LGBT advocacy group. And, according to the same report, only about half of the states clearly allow a same-sex partner of a parent to adopt the parent’s child.
And this: Urban Dictionary, the website that charts slang among the hip and cool set, defines the phrase "That’s gay" to mean "Basically saying, ‘that[']s stupid’…Something you don’t like." According to a recent University of Michigan study of heterosexual male college students, more than two-thirds report using the phrase, and almost one-third use it a lot.
That’s the view among college-educated men, who likely have had at least some exposure on campus to people different from themselves. The immigration guards are hardly alone.
To be sure, there’s always complexity. For instance, the National Football League officially bans sexual-orientation discrimination. Even the U.S. Depart­ment of Homeland Security has done some good in this area. It decided in 2011 that it would no longer routinely deport undocumented immigrants who are same-sex partners of legal U.S. residents and citizens. And no doubt members of the LGBT community are better off in today’s world than 20 years ago, or 50, or 100. There’s been progress. But not enough.
In America’s past, states that permitted slavery did not allow enslaved black men and women to marry each other. But long after they secured that right, African-Americans faced vicious discrimination and abuse because of their race. And when the Supreme Court weighed in on a related matter in 1967 — holding that states cannot prohibit black people and white people getting married — discrimination hardly disappeared even then.
Whether immigration guards should ever put people into solitary is a discussion for another place — the Department of Homeland Security has now started to investigate its procedures. Let’s not even consider how the guards went about guessing who is gay and so got solitary. It doesn’t even matter that the immigration guards allegedly claim that they separated the gay immigrants for their own protection. There are better ways of protecting them if that’s really what was going on.
America has a long history of discrimination, and we want to get beyond it. We want a moment when we can say that we’re past all that. But history has momentum. Electing a black president doesn’t eliminate racial discrimination. And removing a law that prohibits federal recognition of gay marriage won’t end gay bashing. It’s just one step.
Another would be to get some new immigration guards, fast.
Evan P. Schultz is a lawyer in Washington and a former editor at Legal Times.