Same-sex Marriage And The Case of Race

This article originally appeared in The Hill on April 29, 2015.

By Jennifer Richeson and Alexa Van Brunt

The landmark litigation at the U.S. Supreme Court this week on same-sex marriage rights may usher in a new era of constitutional liberties. But one aspect of the case is perhaps less groundbreaking.

The plaintiff who serves as the face of the four appeals-- Jim Obergefell-- is a white man. Recent research in the Social Perception and Communication Lab at Northwestern University suggests that as a result of both his gender and his race, Obergefell is likely to garner greater support for the same-sex cause among the American populace than if he were a woman or person of color.

This finding has potentially far-reaching implications not only for policymaking but also for how civil rights advocates shape and promote reform. 

In one of the Northwestern studies, 166 American citizens read an article about recent efforts to limit same-sex marriage in Alabama. Embedded in the article was an image depicting a couple on their wedding day; but the race and gender of the couple varied.

Some study participants were shown a white male couple, others a white female couple, black male couple, or a black female couple. After reading the article, participants were asked about their support of same-sex marriage rights. The study revealed that people’s support of gay marriage varied based on what image they were shown.

Participants who were exposed to the white male couple expressed greater support for same-sex marriage, compared to those who were exposed to any of the other three images. And those photos were of the white lesbian couple, black lesbian couple, or black gay male couple. This suggests that the public face of same-sex marriage may impact people’s views on the underlying issue.

Other research has underscored the power of subtle images to shape policy positions. A recent study by the Center for Political Communication at the University of Delaware found that white respondents were more likely to support voter ID laws if they had previously been shown a photograph of black Americans voting than either no image or one of white Americans voting.

The difference was not explained by individuals’ political ideology or, even their racial attitudes. Given that voter ID laws suppress African American voter turnout, the fact that support for these policies is, at least in part, affected by racial imagery is particularly disquieting. 
These research findings raise questions for advocacy efforts beyond the same-sex rights movement. Lawyers play upon people’s preconceptions on a regular basis. They curate the reactions of jury members and, yes, even judges, by presenting certain narratives to invoke empathy for clients and causes.

This is also true in civil rights litigation, where attorneys seek to illustrate, for instance, the degradation of prisons or police discrimination through the stories and testimony of named plaintiffs. But most plaintiffs in criminal justice reform litigation are of course the very people who are disproportionately caught up in the criminal justice system—predominantly black and Latino men.

What the Northwestern studies and other social psychological research reveal is that the individuals who are often most injured by the system may be less likely to win a jury’s support based on the color of their skin.

Indeed, a recent study by Stanford University social psychologist and MacArthur genius grant winner, Jennifer Eberhardt, found that subtle cues that a juvenile offender is black, rather than white, leads white Americans to support more severe punishment and perceive greater similarity between the general culpability of juvenile and adult offenders.

These studies—which focus on white respondents—clearly highlight the importance of having people of color serve as both judge and jury in our courtrooms.

Regardless, such findings have obvious ramifications for non-white defendants facing criminal proceedings. And in the civil context, attorneys may—and likely do already—shape their cases to present certain narratives. In order to win support for both their cause and client, they highlight stories of white, middle-class individuals as they are more palatable to the general public.  But in doing so, advocates run the risk of re-enforcing the very inequities they often set out to undermine.

This dilemma is only highlighted by the recent same-sex marriage litigation. For years there has been a rising tide in the recognition of same-sex rights nationwide.

Approximately 40 percent of Americans still oppose gay marriage and 13 states still ban the institution.

All plaintiffs who raise their voice in a court of law against discrimination should be celebrated. But here is the quandary: Should the face of gay rights continue to be white middle-to-upper income men, insofar as it seems to galvanize more public support?

If so, what is the cost of this strategy, especially if it reduces public attention to issues that are less likely to target the lives of this particular intersection of sexual orientation, race, gender identity, and class? 

Consider, for instance, the shockingly high rates of homelessness and suicide attempts among transgender individuals or the disproportionate number of LGBT youth of color[in the juvenile justice system. These issues may receive short shrift in a cause that focuses solely on the concerns of the white population.

This research may raise more ethical questions than it answers. But one thing is certain: the Supreme Court must step in to guarantee same-sex marriage for all couples, not just those who represent the “model” same-sex marriageplaintiff.

In the meantime, more varied faces of sexual minorities need to be publicized, so as to better reflect the different faces and concerns of the LGBT community. Perhaps then more Americans will come to support not only gay marriage, but the diverse LGBT population as a whole.

- Jennifer Richeson is a professor of psychology at Northwestern University. Alexa Van Brunt is a clinical professor of law at Northwestern University.