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Excerpted From: Stewart Chang, Is Gay the New Asian?: Marriage Equality and the Dawn of a New Model Minority, 23 Asian American Law Journal 5 (2016) (Footnotes) (Full Document)

StewartChangObergefell v. Hodges marks a decisive milestone in the United States in the recognition of same-sex couples as equal citizens with equal rights. In Obergefell, the United States Supreme Court held that state statutes restricting marriage rights from same-sex couples were unconstitutional as matters of due process and equal protection. Many hailed the decision as a victory for equality in the United States, comparing Obergefell to landmark decisions during the Civil Rights Era, including Brown v. Board of Education and Loving v. Virginia. Indeed, Justice Kennedy cites Loving numerous times throughout the decision, and situates Obergefell within its tradition. In Loving, Justice Warren affirms marriage as a fundamental civil right, and in Obergefell, Justice Kennedy further elevates marriage to a foundational, organizing principle of civilization. Historically in the United States, equal citizenship has often been tied to access to marriage and family, which is more related to the penumbral right of privacy set in Griswold v. Connecticut. Obergefell continues this tradition. Thus, while Obergefell has generally been regarded as a victory for same-sex equality, some critics remain wary of the type of equality promoted by Obergefell, particularly due to the normative implications of Kennedy's promotion of marriage.

In some respects, Obergefell is as much a defense of marriage as it is a civil rights case for gay and lesbian Americans. The decision also highlights the priority of marriage as a due process privacy right rather than an issue of equal protection. Obergefell emphasizes the centrality of marriage and family to American culture and citizenship, yet in doing so, also suggests that equal citizenship necessarily involves marriage and family. Indeed, in his closing statement, Justice Kennedy ties "equal dignity in the eyes of the law" to the hope of not being "condemned to live in loneliness, excluded from one of civilization's oldest institutions." Kennedy defines access to family formation as access to equal citizenship, implying that anything less is incomplete and unequal. Thus, sexual minorities become inferior citizens when they are excluded from normative structures of marriage, and equality means creating inclusion through assimilation into the norm. The Obergefell decision, then, represents the opportunity for gay individuals to be "normal." By implication, however, once equal access to marriage has been granted, those who decline the opportunity remain incomplete by their own choice. With Kennedy's valorization of marriage and pejorative representation of alternative forms, Obergefell runs the risk of turning a certain segment of the gay community into a mechanism to discipline and marginalize nonconforming populations.

The path of initial rejection and regulation, followed by eventual acceptance and assimilation for the gay community, mirrors the trajectory of Asian Americans in the United States. Gay individuals were once ostracized as a threat to the American family and therefore required regulation. However, Obergefell now sets its plaintiffs as quintessential models of marriage and what it stands for in American society. Similarly, Asian Americans were once considered a sexually subversive threat to the American family, and were subsequently excluded for decades through racially discriminatory immigration laws. Eventually, however, they were reconstructed monolithically into a model minority whose success through strong family values and work ethic has validated the belief that America has progressed into a meritocracy where race no longer matters. The success of Asian American families in the United States is often evoked to demonstrate how equal citizenship is gained not through assistance and reparation for past harms, but through hard work and discipline that reflect strong family values. The model minority stereotype is thus deployed in order to suggest that racism is not the true cause of continuing inequities, but something else. Underperformance of other minority groups is blamed on the unwillingness to work hard, which is often associated with weak family values. Around the same time Asian Americans were being praised as a model minority for having strong families, the underperformance of African Americans was being blamed on their weak family structures.

Obergefell represents the culmination of an incrementalist approach towards gay rights that begins with decriminalization of anti-sodomy and terminates with the legalization of same-sex marriage. In line with the incrementalist approach, the legal strategy for Obergefell focused on how gay families typify core American family values; like Asian Americans, gay Americans are praised as hard-working citizens who contribute to their communities. The casting of gay individuals as model Americans has promoted a growing sense of their normalcy and thus their equality with the rest of the American populace -- that they are the same as other Americans and therefore deserve the same rights. Thus, gay individuals become equal citizens through assimilation into American norms of family, while their differences from the norm are underplayed. Victory on these terms, however, suggests a causal relationship between equal citizenship and homogeneity. By focusing so keenly on marriage, the incrementalist movement and the resulting decision in Obergefell narrowly defines how gay individuals can achieve equal protection in the United States to the exclusion of other choices besides marriage. Now that formal equality has been granted through access to marriage, those who remain excluded do so from their own fault or choice.

This Article analyzes the historic role of family in the politics of exclusion in the United States, evaluates the ways in which the stereotyping of Asian Americans as a model minority has perpetuated these politics, and warns against the possibility of a similar fate for gay and lesbian Americans. As a model minority, Asian Americans have been set as a standard against which other minority groups, particularly African Americans, are measured. Around the same time Asians were being extolled for their hard work and family values, Congress released the Moynihan report on the problem of broken families in the African American community. Whereas Asians were thought of as similar to the white mainstream in their family values, African Americans were deemed widely opposite. This Article analyzes how Obergefell employs a similar rhetoric of comparison and considers the dangers of the gay community turning into a new model minority. As Chris Iijima notes, "the very notion of an 'honorary white' serves to further codify the notion of white supremacy since 'it promotes whiteness as an ideal."' This Article argues that the construction of Asian Americans, and now gay Americans, as sexual model minorities promotes the supremacy of normative family in American culture as a means of disciplining nonconforming minority groups.

Part I accounts and analyzes how cultural ideals of the American family played a central role in stereotypes that led to Asian American exclusion and inclusion across the nineteenth and twentieth centuries. Previously demonized as sexual deviants who required regulation and exclusion, Asian Americans were reconstructed into a model minority that epitomized American hard work and family values in comparison to other racial minority groups. Part II recounts and critiques how ideals of family previously deployed to justify the oppression of gay Americans were subsequently embraced in the successful legal strategies of incrementalist gay rights activists. Yet the emergence of committed gay couples as a new sexual model minority has come at the cost of marginalizing other forms of gay identity, which often involve racial dynamics. Part III evaluates and warns against the dangers of embracing the model minority stereotype, particularly in its implementation as a normalizing method of Foucauldian discipline and population control. Under the semblance of egalitarianism, marriage equality, like the model minority myth, reifies conservative institutions of family that promote a neoliberal status quo and enable continued inequality.

Both Asian Americans and gay Americans have historically been differentiated from normative families in order to justify their exclusion and marginalization, and yet they have now been assimilated into the norm to exclude and marginalize other minority groups. In the same way that the success of Asian American families has been used to perpetuate the myth of color-blindness, the success accorded to gay families through Obergefell holds the potential for promoting the myth of sexuality-blindness. These myths chill the need for further reform. Furthermore, by blending into the norm, model minorities acquire a degree of invisibility, so that they are no longer considered minorities who need protections against continuing inequities and discrimination. Because the model minority stereotype is applied monolithically, it ignores the nuances and variances of subsets within these groups, which allow such subgroups to be further marginalized. In the same way that not all Asian American groups have access to educational and economic attainment, not all gay people may want or even have access to marriage for reasons outside of law.

[. . .]

Prior to the release of the decision, Katie Eyer warned that Obergefell might portend the myth of progress even while true equality for gay Americans continues to be elusive. Even though gays and lesbians may now seem to be a new model minority who have attained equal standing with the mainstream in the United States, they have not. This Article continues Eyer's sentiment, with the hope that gay does not become the "new" Asian in the United States. The Asian American model minority myth demonstrates the dangers of perceived assimilation to the norm. It also breeds forgetfulness of past struggle and a blindness to present struggle. The belief that Asian Americans have achieved equality allows not only mainstream society, but also Asian Americans themselves, to downplay and ignore the discrimination and inequalities they continue to experience. At the same time, Asian American achievement and the myth of postracialism have been used to undermine and downplay the continued struggles of others. In this regard, the model minority myth has traditionally been used to divide the interests of oppressed minority groups, and the same potential exists in respect to the gay community. Like Asian Americans, gay Americans are also heterogeneous as to their levels of social and economic security, and treating them monolithically will allow vulnerable groups to fall through the cracks. Marriage equality does not address, and has the potential to mask, continuing inequities against gay individuals, such as hate crimes, bullying of gay youth, and depression and anxiety among gay teens and adults who are forced out of normative family units. For these individuals, access to marriage is not a panacea. Thus, this Article encourages memory and awareness from both the Asian American and the gay communities. Economic and educational attainment in certain sectors of the Asian community does not mean that discrimination and inequality do not still exist. Similarly, just because it is no longer illegal to be gay and gay couples have the right to marry, does not mean their rights are complete. 

Assistant Professor of Law, Whittier Law School and Assistant Professor of English (by courtesy), Whittier College.