New York City's Harvey Milk School -- believed to be the country's first public high school for gay, lesbian, bisexual and transgendered students -- will open today in an expanded incarnation after years as a small, two-classroom program. Whatever its educational merits, the school is the latest example of a dangerous and constitutionally troublesome trend: the rise of a parallel legal and civic universe for homosexuals.
On the surface, this parallel universe looks like progress. Pressed to give gays access to the benefits of marriage, Vermont responded in 2000 by creating civil unions. California and Hawaii now offer same-sex couples a form of registered domestic partnership, with some of the state-conferred rights and benefits of marriage. Other states are likely to follow.
Similarly, the Harvey Milk School is an attempt to redress the bullying and harassment that gay high-school students often face from their peers, as well as the indifference their situation generates from unsympathetic teachers and administrators.
But other aspects of this parallel universe are more grudging accommodation than substantive progress. Gays and lesbians are adopting children, yet they often need to go judge-shopping, either because state law makes adoption by same-sex couples difficult or because judges simply use their discretion to deny such requests. Meanwhile, the military's "don't ask, don't tell" policy allows gays and lesbians to serve their country but forces them to stay in the closet.
America is talking and arguing as never before about gay equality, and, as measured by public opinion, gays are winning many of these arguments. But visibility in the public square is not the same thing as legal parity. And the emerging parallel universe is actually denying gays the full rights of citizenship, forcing them to settle for a mere illusion of equality.
After all, civil-union and domestic-partnership arrangements have been politically palatable in part because they allow states to sidestep the issue of giving gays the same marriage rights as everyone else.
Alternative gay classrooms and schools, though well-intentioned, signal the failure of public schools to maintain safe, tolerant educational environments for all students.
In their quest to adopt, same-sex couples must search out friendly judges and jurisdictions, often far from home, adding an additional, gay-specific burden to an already difficult process.
And, of course, "don't ask, don't tell" enshrines hypocrisy, technically letting gays serve while allowing the Pentagon to avoid its real problem: the fact that military discipline, so effective in regulating other aspects of life in the armed forces, goes strangely soft when it comes to anti-gay harassment.
All of this would be much different if race or ethnicity were at issue. It's not just that military segregation and anti-miscegenation laws were abolished more than a generation ago. Under the strict judicial scrutiny that government-sponsored discrimination receives when racial or ethnic minorities are involved, there is simply no place for "separate but equal" legal and civic institutions.
In the last 50 years, the Supreme Court's jurisprudence on race has recognized government-sponsored discrimination for what it is -- not a matter of a few outdated or ill-considered laws but a pervasive and historically rooted system of bias that once locked blacks into second-class citizenship. More recently, the justices have taken a similar approach to gender discrimination. The high court's broad application of the 14th Amendment's equal-protection clause now compels lower courts to automatically look with suspicion on policies that provide differential treatment based on race or gender. But not so with sexual orientation, because the judiciary refuses to connect the dots.
Gays thus occupy a unique position: No other minority group is the subject of as much public and political attention on so many fronts while remaining the target of as much blatant, government-sponsored discrimination -- discrimination that the 14th Amendment, as interpreted and applied by the Supreme Court, seems impotent to address.
The Court's recent decisions on gays carry the rhetoric but not the mandate of true equality. In 1996, Romer v. Evans overturned a Colorado ballot initiative that imposed special political disadvantages on gays. This summer's ruling in Lawrence v. Texas struck down criminal penalties for homosexual behavior. Despite the importance of their specific holdings, both decisions shrank from declaring a broader constitutional standard of review for anti-gay discrimination.
Such a standard would put lower courts and lawmakers on notice that gays must be regarded as equal citizens in any sphere that government controls. It would also shift the burden to government to prove a compelling reason when it denies gays rights and responsibilities that other citizens take for granted.
For the most part, gays accept -- indeed, encourage -- their parallel universe in the name of incremental progress, and this is understandable. After all, civil unions and domestic partnerships are better than nothing. Too much fuss about adoption might lead to more pestering by social conservatives to ban gay adoption altogether. Recalling the torment they may have suffered at the hands of bullying classmates, many gay adults probably applaud the idea of separate classrooms or schools where gay students can have some semblance of a normal education.
When separate institutions are created for them, gays even appear to benefit from a sort of benign discrimination. After all, many straight couples might prefer a civil union or state-sanctioned domestic partnership over traditional marriage -- and nerds, punks and Christian fundamentalists might prefer their own classrooms in the public schools. But not only is benign discrimination just as illiberal as invidious discrimination, it gives ammunition to those (like the New York state senator who has filed suit against the Harvey Milk School) who would employ the rhetoric of "special rights" and "reverse discrimination" to oppose gay equality.
Such benign discrimination almost resembles affirmative action, but it differs in one key respect: Affirmative action remains salutary because it helps channel minorities out of spatial segregation and into the civic mainstream. The gay parallel universe, by contrast, channels gays who are already in the spatial mainstream into legal and civic segregation.
The Constitution is the last place where Faustian bargains should be struck. So long as voting majorities continue to exercise their hegemony in order to maintain heterosexual supremacy in the public sphere, American jurisprudence must come to grips with reality and recognize gays as the sort of "discrete and insular minority" -- to the borrow the words of one famous 14th Amendment decision -- that the equal-protection clause has evolved to protect.
Courts would then have to apply heightened scrutiny to open doors for gays on equal terms to all government institutions and programs. And gays would have to resist settling for separate-but-equal treatment. Those who choose to formalize their relationships should have the option of equal marriage. Those who wish to serve their country should do so without hypocrisy. Those who want to adopt should be allowed to without winks, nods and hassles. And educators must work harder to ensure that gay students have the same educational opportunities as other students.
Of course the judiciary cannot by fiat make gays equal in the eyes of other citizens. Private discrimination is a different matter. But gays will not be equal in the eyes of their fellow Americans until they are equal in the eyes of their government.
Steve Sanders is a law student at the University of Michigan and maintains the Web site www.gaypoliticsandlaw.com.
