The Argument Used To Desegregate Schools Could Be Key To Gay Rights

During his inauguration speech in January, President Obama made history by comparing the gay rights movement to African-Americans' fight for civil rights.

Now gay couples arguing for marriage equality in the Supreme Court are also comparing their fight to the civil rights movement, quoting the historic Brown v. Board of Education decision in a motion filed on Thursday.

The gay couples, led by Kristin Perry and her partner, are fighting California's Proposition 8, a gay marriage ban that voters approved when they elected Obama in 2008.

Gay couples in California sued to overturn Prop 8, and a federal judge ultimately found the law unconstitutional. The Ninth Circuit appeals court affirmed the judge's decision, prompting gay marriage opponents to try to revive Prop 8 in the Supreme Court.

In their motion filed Thursday, lawyers for the gay couples fighting Prop 8 quoted a moving passage from the high court's 1954 Brown v. Board of Education decision.

That historic case found that segregating schools was unconstitutional because separate facilities were "inherently unequal."

In invoking Brown, the anti-Prop 8 lawyers (led by the unlikely duo of David Boies and Ted Olson, who opposed each other in another historic case, Bush v. Gore) alluded to the discrimination that gay people's children could face if their parents couldn't marry.

Here's the relevant passage, with the Brown v. Board of Education quote in bold:

"Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians, and their relationships, are not 'okay,' that their life commitments 'are not as highly valued as opposite-sex relationships,' Pet. App. 262a, and that gay and lesbian individuals are different, less worthy, and not equal under the law. That 'generates a feeling of inferiority' among gay men and lesbians—and especially their children— 'that may affect their hearts and minds in a way unlikely ever to be undone.' Brown v. Bd. of Educ."

For their part, Prop 8 supporters argued in their brief to the court that gay people shouldn't be able to marry because they can't have kids. As Boies and Olson point out in their brief, Prop 8 supporters never once mentioned the concept of "love" as a reason people might marry.