This year at the Cannes Film Festival, there was much praise for the British-American film, Loving (based on an earlier documentary), about the black woman, Mildred Jeter, and the white man, Richard Loving, whose struggle for marital rights vs. the State of Virginia led to the unanimous U.S. Supreme Court decision in 1967 striking down the ban on interracial marriage.
The Loving case has become a landmark in the sea change in American attitudes in recent decades about same-sex marriage. I bring it up because, it seems to me, it also has important implications for current controversies about attempts like that in North Carolina to deny transgender people the right to use a public bathroom different from the biological marker on their birth certificates.
In the late 1950s, Hannah Arendt, who maintained a distinctively European attitude toward American racial attitudes, argued in a piece that was treated as borderline-scandalous in liberal magazines, including Jewish magazines, of the time that ending the color line in public school classrooms was important, but that ultimately the color line in bedrooms and marriages would also have to come down for Jim Crow to be defeated.
I think that, in retrospect, Arendt was right. We know this because the increase of marriages across both color and creedal lines—one of the most striking trends of the last generation—is also among the most important in making the U.S. a more just society, despite all the racial and other barriers that continue to separate Americans.
Back in 1896, when the U.S. Supreme Court upheld “the separate but equal” doctrine in Plessy v. Ferguson, the greatest injustice was not that whites and blacks might choose to sit apart on public conveyances, but that the government was given the authority to impose such a result on the basis of real or imagined biology. Behind the Court’s decision was an implicit reliance on the theory of Yale Professor William Graham Sumner that “mores” determined what was socially right, and that since the white Southern majority adhered to segregationist “mores,” their state governments could impose them as a matter of law.
I belong to a generation for whom “bathroom choice” for transgender people may be something new under the sun. But fundamental principles of right and wrong, at least in the U.S., should be a matter of the Constitution not social conventions or popularity contests. This is why I think that Jews in particular need to side with LGBT rights, particularly at a time when majoritarian demagoguery is threatening minority rights in ways not seen since the Joe McCarthy Era.
