Associate Professor of Political Science and Women’s Studies
Approximate word count (including bibliography): 12,390
Approximate character count: 67,940
Abstract: It has
become a commonplace among historically inclined legal scholars to look to the
history of the
Scholars and activists on the right and left debate how to use the analogy between interracial marriage and same-sex marriage in the current controversy over banning or legitimating same-sex marriage. Historically inclined left scholars have highlighted the similarities in state justifications for the bans on both types of marriage and have looked to the history of the United States’ elimination of bans on mixed-race sexual relationships for guidance. Scholars on the right have argued that the racial focus of bans on “miscegenation” renders them fundamentally different from the gendered regulation of marriage, and have emphasized that racial regulations are constitutionally suspect in a way that regulations based on sexual orientation are not. Still other scholars and activists have argued about the similarities and differences between historic discrimination against African Americans in particular and contemporary discrimination against members of the LGBT community. What is missing in this three-cornered struggle is a close analysis of the meaning of these bans to the states and people who enact them.
While the analogy
is helpful, it is not perfect because of the particular historical situation of
the struggle to legitimate interracial marriage. Because criminal bans on interracial marriage
were at the heart of defining and perpetuating the political and institutional
system of white supremacy, they served a different purpose than the bans on
same-sex marriage. Further, the
structure of prosecutions for sexual activity with same-sex partners was
different than criminal punishment for interracial sex. Ironically, however, deep consideration and
critique of the ban on same-sex marriage has more potential to transform the
way we think about marriage and its relationship to the state. Eliminating bans on interracial marriage
through constitutional means depended upon the dominant ideological stance of color-blindness,
which in turn rooted critique in a narrow, non-transformative conception of
equality. Those seeking to overturn
legal policies against same-sex marriage may be able to draw on the state of
The article will proceed by summarizing the post-Fourteenth Amendment legal regulation of interracial intimate relationships, focusing on the role of these regulations in framing race as a central feature of the state. It will then briefly recount the legal struggle over same-sex marriage, also interrogating the way that the recent bans on the state level have implicated the significance of heterosexuality to the state. I will then turn to the many points of comparison in the two narratives, highlighting the structural similarities of expressed state interests in regulating marriage in these ways.
I will then situate these interests in their political context, highlighting the connection between bans on interracial marriage and the development and situation of white supremacy as a political doctrine. While bans on same-sex marriage are disturbing to those engaged in the struggle for LGBT rights, I will argue that they do not – yet – serve a precisely analogous function of centering heterosexual supremacy as a core political ideology of the state. The article will demonstrate how the struggle over bans on same-sex marriage has the potential to be more liberating than the struggle to lift the bans on interracial marriage. Finally, I will suggest that the current struggle encompasses the possibility of theoretical turn toward a full-blown critique of marriage and its role within the state.
Banning Interracial Intimacy: A Focused History
a wave of recent scholarship has laid out the history of bans on interracial
intimate relationships, this section will but summarize the major points and
place them in the context of the development of white supremacy as a political
ideology (see, e.g., Pascoe 1996, Novkov 2002, Kennedy 2003, Romano 2003,
Robinson 2003). If we look to the timing
of bans, to the discussions of the reasons for implementing them, and to the
role that these bans played in articulating the white state, we see more
clearly the significant state work that they were doing, an element that has
not attracted as much scholarly attention as the work of racial construction
that these bans accomplished. While this
summary will be national in scope, at times I will turn to
the sectional crisis heated up in the period prior to the Civil War, the regime
of state-based bans on interracial marriage was primarily located in the south
and west of the nation. Not every state
had a ban, and through the antebellum era the regime was significantly in
flux. For instance,
As the Civil War drew to a close and statesmen began to consider the institutional structure that would emerge from it, dealing with the freed slaves specifically and African Americans more generally was of great concern both on the national level and in the states. In fact, the word “miscegenation” itself was coined in a political context. Two Democratic newspaper editors posing as anonymous Republicans secretly wrote a pamphlet introducing the word and advocated for widespread interracial marriage to reduce racial tensions and promote equality. They hoped that they could get at least some lukewarm endorsements from prominent Republicans and use these endorsements to convince white voters to shun the Republican Party (Kaplan 1949). Their ploy failed, but the word became part of the lexicon and discussions of the dangers of interracial relationships were prominent in conversations about how to recreate the political order.
While change would
clearly have to take place, the scope and extent was murky initially. The first reconstituted southern states,
presenting their new constitutions and legislative work to a national
government not yet committed to thoroughgoing reconstruction, quickly passed
bans on interracial marriage, with a few like
The turmoil in
significant part of the story for those interested in the analogy with same-sex
marriage is what happened in the post-Reconstruction era. Several southern states (like
bans and the process through which they were established shaped the development
and implementation of white supremacy in the south. The struggle over interracial marriage was
also a key issue around which the federal compromises over “local control”
leading to benign neglect in race relations were crafted. Again, the story in
immediately after the
The next case, Ford v. State, focused on the question of interracial adultery or fornication and distinguished Burns as solely addressing marriage. Ford, decided by a court of Democrats in 1875, reverted to the reasoning in Ellis to uphold convictions for interracial adultery or fornication on the ground that, because interracial adultery or fornication was a greater affront to public morals, it could be punished more harshly than the intraracial variety (Ford v. State, 53 Ala. 150 (1875)).
confronted Burns more directly in
1878 in Green v. State, which
addressed an interracial marriage and thus could not rely on a strategy of
Regardless of its nature, why was marriage so connected to the state? The Court did not simply rely upon history here – instead it posited marriage as the fundamental relationship for social functioning and the family as the basic unit of the state. The justices reasoned:
It is through the
marriage relation that the homes of a people are created – those homes
in which, ordinarily, all the members of all the families of the land are . . .
assembled together; where the elders of the household seek repose . . .; and
where . . . the young become imbued with the principles, and animated by the
spirit and ideas, which . . . give shape to their characters and determine the
manner of their future lives. These
homes, in which the virtues are most cultivated and happiness most abounds, are
the true officinae gentium – the nurseries of States
The quoted passage emphasizes the public significance that the court read into the marital relationship; the family’s importance to the state served as ample justification for careful regulation of the process through which families were created. Under the principle of symmetry, blacks’ marriages to other blacks had to be legitimized by the state, but the Court’s clear implication was that white families, not black ones, were both central to the state’s future and deserving of special protection by the state.
This logic echoed
development in other states. In a less
convoluted doctrinal history,
The ruling in Green grounded the
Pace provided the impetus for federal
intervention in the debate; Tony Pace appealed his conviction to the US Supreme
Court. The US Supreme Court, in a
significantly less developed analysis, rejected his claim based in a broad
reading of the Fourteenth Amendment.
While the opinion was short, it underlined the high court’s commitment
to a thin vision of symmetry and a broad acceptance of local control. The Supreme Court also did not engage with
As other states
began to grapple actively with these questions, the two major judicial
statements about the significance of marriage and the threat posed by
interracial marriage were Gibson and Green.
Several key principles arise from these two cases, principles that
grounded the regime of anti-miscegenation across the
The establishment of these principles had an additional effect. Policing the racialized boundaries of marriage became, for the states deeply engaged in the process, a key site for the development of white supremacy as a political ideology. In focusing on federal legislative and judicial debates over race and equality, scholars have not always seen how supremacy has functioned in context, nor have they looked at how legal regulations of race delineated its boundaries in a nuanced sense. The state battles over the meaning of interracial marriage and the justifications for its suppression reveal this process in depth. For the purpose of understanding the analogy, however, a few summary highlights from this history are helpful.
First, in the era
of evidentiary debate over the meaning of these statutes (from the 1880s
through the early 1900s), the state courts in Alabama and elsewhere clarified
that prohibiting interracial marriage and other forms of interracial intimacy
was not an expression of hostility toward interracial sex. Contrary to what some observers might expect,
Second, the anti-miscegenation
regime was crucial in policing the racial boundary as a political matter. Many states either implicitly, or as in the
the dismantling of bans on interracial relationships was a significant site for
the delegitimation of white supremacy as a core value for states. As Peggy Pascoe has noted, however, this
process involved a turn from an initial attack based on the empirical and
political underpinnings of racism as a foundation of the state to an ideological
commitment to color blindness (Pascoe 1996).
We can observe this shift most effectively by comparing the reasoning
that the California Supreme Court used to strike down
Perez involved a challenge to
inquiry then turned to what might be a legitimate concern for the state, listed
the expressed state interests, and demolished them one by one. The opinion considered in empirical terms
objections based on the lack of healthiness of races other than the Caucasian
and rejected these concerns. The court
then looked to the origin of the statute, linking it to other laws passed at
the same time rendering people of color ineligible as witnesses and citing the
clearly racist language justifying this policy.
After using this information to root the statute in racialized thinking,
the court turned to an analysis of the meaning and definition of race, setting
up the state’s system of percentage-based definition against contemporary
liberal anthropological data on race as a construction. Additional arguments about black inferiority
in general received short shrift from the court, which noted that blacks’
social conditions were largely attributable to discrimination. The court also rejected the state’s fears of
inflaming racial prejudice by pointing out caustically that “it is no answer to
say that race tension can be eradicated through the perpetuation by law of the
prejudices that give rise to the tension” (
Loving v. Virginia came before the US
Supreme Court in 1967. The Court had
contemplated tackling bans on interracial marriage in the mid-1950s when an
fact, Pace v. Alabama had been
overturned in 1964 in the little noted case of McLaughlin v. Florida. That
case had invalidated
The analysis of due process and liberty was equally succinct. The Court declared marriage to be a basic civil right, explaining that “to deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes . . . is surely to deprive all the State’s citizens of liberty without due process of law . . . the freedom to marry . . . a person of another race resides within the individual and cannot be infringed by the State” (Id. at 12). While the analysis of liberty also rested upon a fundamental assumption that the underlying racial differentiation was illegitimate, here also the reasoning rested upon an analytical rather than a doctrinal or factual argument about the meaning and sources of racial discrimination. Except for a non-definitive reading of the history of the fourteenth amendment’s adoption, history was relatively unimportant in the Court’s opinion. Loving provided a mirrored response to Pace v. Alabama, rereading the meaning of equality to encompass the freedom to choose marital partners without state intervention on the basis of race. The state was forbidden to see racial difference in sanctioning marital and other sexually intimate relationships.
Loving was thus quite different from Perez and perhaps reflected the high Court’s sentiment that, by 1967, the history of racial discrimination was known and the roots of the Jim Crow era had been laid bare by the struggles over desegregation. Regardless of the Court’s motivation, it established an analytical structure for rejecting racialized limits on marriage that did not address in any substantial way the structural and institutional sources of state repression of socially subordinated racial minorities. Perez provided a more thorough attempt to dismantle the embedded racism in law and culture through showing the way that the state had participated in the process of racial formation (to use a term that would not have occurred to Justice Traynor).
The history of the struggle over regulating interracial intimate relationships demonstrates a few key developmental points. First, these bans were implemented consciously in the post-bellum era first as a strategy to cordon off the radical implications of black equality and later as a means of articulating a political ideology of white supremacy. Second, the bans highlighted the significance of the family as a unit of the state and helped to place the white family as a normative center around which both the state as an abstract entity and concrete actual states were organized. Third, the process through which the bans were removed demonstrated alternative paths for challenging white supremacy. The path taken by the US Supreme Court embraced an abstract conception of equality, privileging this reasoning over a substantive engagement with the political and ideological roots of white supremacy.
The Debate over Same-Sex Marriage: A Site for Development?
To consider the nature of the analogy, let us ask the questions that arise from the history of regulating interracial intimacy. What is the impetus behind the contemporary struggle over same-sex marriage? What conceptions of marriage, its relationship to the state, and the centrality of heterosexuality in all of this arise from progressive court rulings? And what implications does the unfolding of this debate have for the state and for marriage?
A stark – and for those who would use the analogy aggressively, troubling – contrast appears immediately. The establishment of the anti-miscegenation regime was part and parcel of the development of a white supremacist state. The contemporary state is thoroughly heterosexist when we look to the structure of its institutions. Nonetheless, the process through which the contemporary states have been established was not based upon an agenda of imposing heterosexual supremacy as a basis for legitimation. Nor was same-sex marriage specifically identified as a site for privileging the heterosexual family as the fundamental unit.
This observation is more significant than the standard objection rooted in comparative oppression (often framed as the claim that heterosexist oppression is less bad than racist oppression). It also sets aside the tautological objection that the constitutional standard of review for racially based state policies is higher than for those policies based on sexual orientation. Note that I am not arguing that the wave of bans on same-sex marriage is insignificant from a developmental standpoint. Clearly, those pushing such bans legislatively and constitutionally see themselves as engaging in a process of state construction. Perhaps, though, it is more accurate to characterize this process as a reconstruction of the place of marriage within the state, and an effort to reprioritize marriage as a public near-obligation of full citizenship (see Yamin 2005). This differs substantially from the criminal regime of policing the racial boundary through prosecutions for interracial intimacy as a means to mark “other” races as tainted, polluting, dangerous, and subordinate.
Those supporting the analogy might question, however, the importance of intentions. Both policies had the effect of stigmatizing some citizens, closing them off from substantive protection afforded to others, and marking them as unmarriageable and ineligible to serve as fundamental building blocks for the state. Why should it matter that one set of prohibitions was intended to embed white supremacy and establish it as the fundamental organizing principle of the state while the other took place after the modern state had already been constructed? Further, if the state actors interpreting and enforcing these regulations had a range of views on their legitimacy and morality, shouldn’t we look more to what happened on the ground as a measure of these policies’ meanings?
While these objections are salient, the question of intent is important in sorting out the process of state development. Legislators’ narratives to themselves and to the public about what they believe themselves to be doing set up the initial parameters within which the meanings of their policies are shaped. The context of intentions draws together policies and practices that might otherwise seem unlinked. Intent is a longstanding and important factor in legal interpretation, shaping individual decisions about and ultimately the development of both public and private law. Put simply, it mattered to those interpreting and enforcing the laws barring interracial marriage that these laws were an explicit part of a broad-based regime centered on the rebuilding and maintenance of a white state. Likewise, it matters that the original justifications for rulings and legislation against same-sex marriage were not explicitly linked to the building of a heterosexual state, and it matters that support for “traditional” values and families is increasingly being attached explicitly to arguments in favor of limiting marriage to opposite-sex couples.
Another point of contrast is that bans on interracial marriage were often operationalized through the criminal law, while contemporary bans on same-sex marriage have taken place in the realm of civil law. One could argue, therefore, that the struggle leading up to the US Supreme Court’s ruling in Lawrence v. Texas is a more appropriate comparator. This objection, however, minimizes the work that marriage does in both cases. Further, the goals of anti-sodomy laws seem at least upon cursory investigation to be fairly far removed from the goals of the ban on interracial sexuality. Anti-sodomy legislation was largely about preventing same-sex sexual relationships, whereas anti-miscegenation laws targeted interracial intimacy. Intimacy – or at least some evidence of an ongoing relationship – was largely beside the point for state actors seeking to prosecute individuals under sodomy laws, whereas it was consciously defined as an element of the crime of miscegenation in states that criminalized interracial adultery and fornication.
then, has the state-level debate over same-sex marriage revealed about its
sources and role in defining the state?
This process has had – thus far – three distinct stages. The first appearance of this issue on the
political agenda was in the 1970s, when debates over the ERA raised anxiety
among conservatives about the possible extent of the gay liberation movement. These fears culminated directly in a wave of
state statutory redefinitions of marriage as a relationship only between a man
and a woman (Pascoe 2000: 101). Once the
national drive for the ERA had stalled, the issue of same-sex marriage mostly
disappeared from the public agenda until the 1990s. It reappeared in a wave of constitutional
litigation over the legitimacy of denying marriage licenses or significant
privileges to same-sex couples. Begun in
First we can consider the case law on same-sex marriage to grasp its contested role in contemporary state development. In the last twelve years, several state courts have heard direct constitutional challenges to their limits on same-sex marriage. Their discussions provide significant insights into what the states understand themselves to be doing in limiting marriage to male-female dyads.
debate over the meaning and status of interracial marriage was sparked by the
legislative and constitutional changes of Reconstruction. For same-sex marriage, while some scattered
litigation took place prior to 1993, the Hawai’i Supreme Court’s ruling in Baehr v. Lewin was the watershed
moment. While the court rejected a
fundamental right to marry a person of the same sex, it found that barring
same-sex marriage constituted sex discrimination under the
reliance on this analogy, however, the court did not look to the role of
maintaining exclusivity in marriage as a means of reinforcing the fundamental
nature of the state. The justices relied
instead on requiring the state to articulate a strong justification for
refusing to allow some citizens to enjoy the protections freely provided to
others. The majority, in refusing to
endorse an outright command that the state extend marriage, explicitly noted
that the analogy to criminal sanctions on interracial relationships was
problematic, because “we do not confront in this case the evil that was
institutionalized racism . . . the exclusion of same-sex couples from the
definition of marriage was
In a case that
likely would have received more attention had it not been for subsequent
rejected the effort to rely on
Goodridge was the next bombshell, coming
from the Supreme Judicial Court of Massachusetts in late 2003. It is the most visible of the same-sex
marriage cases on the state level, and is likely to remain so as the definitive
presentation of the case for same-sex marriage.
The court opened
with the observation that civil marriage itself is a creature of the state and
has been throughout the history of
survived the court’s analysis in Goodridge,
but emerged in a somewhat novel form.
The court finished by defining it as “the voluntary union of two persons
as spouses, to the exclusion of all others,” and identified its public basis in
the state’s interests in “providing a stable setting for child rearing and
conserving state resources” (
The dissent, like
the dissent in Perez v. Sharp, took
issue with nearly every element. The
In early 2005,
than three weeks later another
cases, while they reach radically different outcomes, share some themes. First is the state’s explicit avoidance of
animus as a justification for limiting marriage to opposite sex couples. As the analogy to interracial marriage is so
immediately salient, particularly in the wake of
Two central questions commonly asked in these cases have been what the family is for and why it must be protected. In all of the cases, the family is placed as a significant and central institution worthy of state recognition and protection. Only those judges who rule for same-sex marriage, however, see the family primarily as a state-created institution; the judges allowing exclusionary marriage to continue seem to see the family as a pre-political, natural living arrangement that the state merely legitimates. All agree that marriage plays a crucial role in creating family, but disagree about the point at which state intervention makes the family. For supporters of same-sex marriage, committed relationships are about liberty and individual choice, and the state merely acknowledges or refuses to acknowledge these choices based upon its attitude toward the participants. For those rejecting same-sex marriage, the state’s acknowledgement is more active, in that it renders particular kinds of relationships acceptable and desirable through the state’s recognition. It is also ironically less active, in that limits on same-sex marriage simply reflect and reinforce the perceived universal traditional organization of the family under state rubrics.
The third area of
disagreement has been about the significance of procreation and its
mechanics. Courts upholding limits on
marriage have placed great weight upon the capacity of the married heterosexual
couple (as an ideal type) to procreate without “outside” intervention into the
biological sanctity of the married couple’s presumed pact of sexual
exclusivity. These stances range from
These cases, however, also show dramatically how indebted the debate over same-sex marriage is to the looming shadow of Loving v. Virginia. As in the high court’s analysis there, these courts all see marriage as a simple extension of public benefits and recognition to a private relationship. The cases turn on the dual pivots of equality and liberty, with the courts struggling over whether limits on marriage partners are unacceptable breaches of equality and how to define the liberty interest at stake. The family is still important as a unit of the state, but the need for protection of the family is circular rather than reciprocal. Marriage emerges as the state’s way to acknowledge and shelter the family (as a contested concept), but the family does not have direct and independent responsibilities to the state.
Unlike the first round of constitutional debate over laws against interracial intimacy, this burst of litigation did not involve an active and directed process of constitutional development on the part of the state. Instead, the struggle produced second-order questions about the relationship between marriage and the state. The raising of these questions, however, prompted a debate with significantly stronger connections to the question of interracial marriage. Alerted to the possibility of marriage’s extension to same-sex couples, the religious right swung into action, first through the mobilization of state-level defense of marriage acts (DOMAs) in the 1990s and more recently through efforts to amend state constitutions and the federal constitution to prohibit same-sex marriage directly.
This has provoked a node of conflict not directly rooted in the courts or judicial decisions. Instead, the battle has been fought largely on the political ground of state constitutional amendments, especially in light of the failure of the Federal Marriage Amendment in the Senate and House in 2004. The push to define marriage as a relationship solely between a man and a woman both through barring recognition of other states’ definitions and by limiting marriage directly does implicate state development. At least for some members of the religious right and their strongest opponents, the struggle has become a debate over the wisdom of embedding of heterosexual supremacy in constitutional law and policy.
Unlike the first
round of constitutional debate over anti-miscegenation laws, this burst of
litigation did not involve an active and directed process of constitutional
development on the part of the state.
Instead, the struggle produced second-order questions about the
relationship between marriage and the state.
The raising of these questions, however, prompted a debate with
significantly stronger parallels to the question of interracial marriage. Alerted to the possibility of marriage’s
extension to same-sex couples, the religious right swung into action, first
through the mobilization of state-level defense of marriage acts (DOMAs) in the
1990s and more recently through amendments of state constitutions to prohibit
same-sex marriage directly. By the
summer of 2005, more than fifteen states had placed bans in their
constitutions, with additional bans awaiting voter ratification in five
This has provoked a node of conflict not directly rooted in the courts or judicial decisions. Instead, the battle has been fought on the political ground of the state constitutional amendment process. The push to define marriage as a relationship solely between a man and a woman both through barring recognition of other states’ definitions and by limiting marriage directly does implicate state development. At least for some members of the religious right and their strongest opponents, the struggle has become a debate over the wisdom of embedding of heterosexual supremacy in constitutional law and policy.
While a few more overtly political groups and individuals have assisted conservative Christian organizations, the religious orientation of the primary movers behind the wave of constitutional amendments is worth noting (Leaming 2004). This is in stark contrast to the political elite’s initiation and backing for bans on interracial marriage in the late nineteenth and early twentieth centuries. One might respond that politics has changed, and that mass organizations and social movements are now much more direct players in the political process than when bans on interracial relationships were being debated. Such a distinction, however, would overlook the success that private progressive organizations had in the early twentieth century in passing state-level legislation. Further, the example in the late 1800s and early 1900s of a largely religiously based temperance movement that brought professional politicians on board as participants also undercuts the claim that political mobilization itself has changed.
What work is the wave of constitutional initiatives and referenda doing? This process involves conscious state development more directly than the more ambiguous work of the recent judicially considered challenges to exclusive rules. In seeking to embed a particular vision of marriage in state constitutions, advocates for bans on same-sex marriage are simultaneously promoting a vision of the state based in families organized around heterosexually married couples as the foundation. They have also identified the most effective means of mobilizing support both for specific bans on same-sex marriage and for raising the salience of their larger agenda – the use of initiatives and referenda.
their part, advocates for same-sex marriage within the LGBT community have
relied principally upon arguments of simple equality, equal dignity and
citizenship, and protection for families.
Seasoned by years of legal struggle, these advocates have relied upon
the legal, ethical, and constitutional themes that opened doors to beat back
discrimination in other arenas (Andersen 2004).
These themes have recurred both in legal arguments in favor of extending
marriage to same-sex couples and in public campaigns against exclusionary
constitutional amendments and statutes.
They have been strikingly ineffective in the realm of mass democracy, however, as state after state has passed constitutional ban on the recognition of same-sex marriage. These bans have ranged from Oregon’s simple declaration that marriage may only be recognized between a man and a woman, leaving open the possibility of civil unions (which passed in Oregon’s Senate but was not considered by the House in the 2005 legislative session) to the versions passed in Ohio and Michigan that bar any attempt to create a status akin to marriage between unmarried couples of any gender.
The most recent
court to weigh in on this question has been the Oregon Supreme Court. Finding
As with interracial marriage, we can review the recent controversy over same-sex marriage to understand how this struggle implicates state development. In doing so, two things become evident. First, the analogy between state recognition for interracial and same-sex intimate relationships is not perfect. The initial conflict over interracial marriage took place in the context of the bans implemented in the post-bellum era to limit the scope of black (and other races’) equality with whites and refined around the turn of the century to articulate and embed white supremacy. The opening salvos in the struggle over same-sex marriage implicated the meaning of family and the state’s relationship to the family, but were not in the immediate sense based in a struggle to articulate a state based fundamentally in heterosexual supremacy. This struggle, however, raised the political salience of questions about the relationship between the heterosexual family and the state. A wave of right-wing political organization leading to constitutional amendments in many states implicated state development much more directly, in a fashion similar to the efforts of state-builders in the late 1800s and early 1900s. Here, those promoting limits on same-sex marriage saw themselves more explicitly acting to embed the heterosexual family at the center of the state and to exclude same-sex relationships and ultimately those individuals who engage in them from recognition by the polity.
here, though, the analogy is not perfect.
The political actors who wrote bans on interracial intimacy into state
laws and constitutions in the late 1800s and early 1900s were political elites
primarily concerned with establishing white supremacy. Other goals were significant – in
What Work Can the Analogy Do?
To review, the history of regulating interracial intimacy in the modern era is a history of the thoroughgoing connection between interracial marriage and white supremacy. In the years following the Civil War, limits on interracial marriage first centered the white family and circumscribed equality, and then became a key site for articulating the white state. This regime was formally dismantled through the law between 1948 and the late 1960s-early 1970s. However, the mode through which the US Supreme Court and later federal courts lifted the ban on interracial intimacy failed to achieve a redefinition of race and the uprooting of racial subordination.
The initial limited calls for state recognition of same-sex marriage of the 1970s revealed the extent to which many marriage statutes did not consciously embed a regime of heterosexual supremacy. Instead, these statutes merely assumed a heterosexist social context. In the 1970s, however, a wave of statutory reform initiated the work of consciously rejecting equality for lesbians and gay men, and the major shifts of the 1990s and early 2000s began to specify the emerging relationship between marriage and the state. While more work could specify the developmental path taken, the original indifferently gendered marriage laws likely relied upon the background criminal regime suppressing same-sex sexual activity to define the state as implicitly heterosexual, and of course the legal struggle to overturn anti-sodomy laws relied significantly on the same kinds of rights- and equality-based claims that supported arguments against anti-miscegenation laws. The importance of this struggle as a locus for working out questions of LGBT inclusion would explain why the question of same-sex marriage has become more salient of late, as first several states and finally the federal legal system took steps to eliminate the remaining sodomy bans in recent years.
The differences in developmental histories of struggle over interracial and same-sex marriage demonstrate the need for a more nuanced comparison of how supremacist impulses based on race and sexual orientation have interacted with the state. How do the conscious animus and overt supremacy operating primarily in the context of race differ from the active exclusion, silencing, and rendering invisible operating primarily in the context of sexual orientation? The left scholars best poised to consider this question have avoided it in part because of the political power of analogies between racist and heterosexist oppression. A close examination could, however, lead to useful payoffs, especially in considering what removing the ban on same-sex marriage will mean.
The state work performed in the initial struggle over same-sex marriage has been thinking through the role of marriage and family in the state. The legal controversy centered questions about the public significance and meaning of gender roles and highlighted the way that the family’s centering in the state has changed over time. While the raising of children is still an activity imbued with public interest, this public interest is largely protective, with children’s roles as future citizens relegated to the background. The constitutional amendments have moved the process to a more overt effort to embed the heterosexual family at the center of the state and to reorient the state around this normative family. Behind all of this is the effort to reinvigorate civic and political culture with religious values connected to particular normative gender roles. In this sense, the struggle over abortion as described by Kristin Luker – a struggle over world views and the meaning of gender – provides a striking analogy to the fight over same-sex marriage (Luker 1984).
It is worth reinforcing, though, that the meaning of this struggle is part of the struggle itself. The struggle cannot be completely defined by one side, and those fighting for recognition of same-sex relationships have the opportunity to articulate their vision of what this fight means both in the legal and political arenas. The history of removing bans against interracial marriage provides two possible models: the equality-based model of Loving v. Virginia and a more deconstructive model suggested by Perez v. Sharp.
Analogizing to Loving v. Virginia is tempting. Marriage can be seen through the lens of Loving as a simple matter of equality. The state’s responsibility is to invest institutionally in the support through recognition of the loving family and to protect the individual liberties of those who choose to engage in state-work by creating a family. Abstract equality and individual liberty resonate strongly, and claiming that the state should not be able to withhold its sanction from couples on the basis of their subordinated identities is a powerful argument.
The seductiveness of this simple claim should not overshadow its risks. We know from history that Loving did not engineer a fundamental rethinking of race or of marriage. Rather, it extended marriage to interracial couples on its own existing terms. The case, while rejecting formal white supremacy, did not challenge the historically embedded placement of the white family as the normative center of the state. Instead, it incorporated interracial couples into the existing model and promoted colorblindness as a response to the state’s conscious privileging of whiteness. The ruling thus imposed no responsibility on the state to dismantle the social and cultural apparatus of racism that was supported through the previous one hundred years of post-bellum state-level political development.
Asking harder questions inspired by Perez v. Sharp might ultimately prove more fruitful. Why have we had a wave of constitutional amendments banning same-sex marriage and what state work are these amendments doing? What does the more rigid definition of marriage say about the relationship between sexual orientation and citizenship, as well as about the significance of marriage itself for citizens? What is accomplished by the emphasis on heterosexual marriage not only as protection for children but as the only legitimate tradition? Is the process we see evolving right now a developmental moment in which the right is attempting to articulate and embed heterosexual supremacy? And is heterosexual supremacy itself an end or only a means to develop a new porousness of the state to religion?
deep critique can help us to sort out how state laws and policies have
institutionalized heteronormativity on the ground over time. Much of this work has been done through the
lenses of law and history (see Eskridge, Colker, Robson, among many), but a
comprehensive study of the ways that questions of constitutional and political
development implicate sexual orientation remains on the horizon. In such a study, we would need to understand
the drafting and application of specific limits on marriage, but also to
analyze the significance of the criminal ban on same-sex sexual intimacy and this
ban’s ultimate removal by the Supreme Court in Lawrence v. Texas in 2003.
Justice Traynor’s account of the history and significance of racialized
state development in the context of marriage laws can provide a useful model
for a critical analysis of marriage regulations and their role in creating and
embedding the heterosexual state. It may also lead us to a model for a deeper
interpretive critique of the relationship between sexual orientation and full
citizenship than the Court’s reliance on equal dignity in
This approach can also draw upon the emerging questions about the purpose and significance of marriage. The initial round of legal considerations of limits on same-sex marriage has begun this process of critical consideration and reevaluation. Not since debates over the meaning of marriage and family in the late nineteenth century in the context of race and plural marriage has there been such an opportunity for a close legal consideration of marriage’s relationship to the state. In particular, we can and should think about the ways that marriage has changed, as expressed both in gradual shifts in the law through repeal and desuetude and through the sharp conflict over extending marriage’s benefits to same-sex couples. In order to have this debate, we as a society are fully considering what these benefits are and what they mean to the couples who enjoy them and from whom they are consciously withheld.
The Perez example teaches us to look critically at the messages of inclusion and exclusion that the state sends through its laws on marriage. By extending this inquiry, we can move toward a cautious deconstruction. Such an approach can help us to sort out the extent to which marriage is a relationship that can and should be imbued with normative content that the state supports and acknowledges. By doing so, the approach could recognize the differences in the struggle for racial justice, but learn from these differences at the same time (Mumford 2005). We can reveal the work that state recognition of marriage is doing both for marriage and for the state. In the process we can consider critically what the state interest is in recognizing intimate relationships and how the state can best articulate this interest. Ultimately, the debate could lead to an informed and pragmatic reconfiguration of marriage that recognizes its deep spiritual significance to those who choose it but decouples that significance from a silent privileging of state structures dedicated to exclusive heterosexuality. While this outcome may take years to achieve, having the historical example of the struggle over interracial marriage can serve to alert us to the meaning of the developmental process that is unfolding now. We can also use this history to weigh models for argument and change. In the end, using the history of regulating interracial marriage can spark discursive examinations that will restructure marriage rather than simply opening it on a thinly egalitarian basis that does not undercut the fundamental and developmental nature of exclusion that has supported it throughout modern legal history.
Ellis v. State,
Burns v. State,
Ford v. State
Green v. State,
al. v. State 59
Pace & Cox
v. State, 69
Perez v. Sharp,
32 Cal.2d 711 (
Baehr v. Lewin, 74 Haw. 530 (1993)
Baker v. State, 170
Keltner v. Superior Court, 206
Department of Public Health, 440
Sadler, 821 N.E.2d 15 (
Hernandez et al. v. Robles, 2005 NY Slip Op 25057 (2005)
Li v. State,
Lewis et al. v. Harris, 2005 N.J. Super. LEXIS 186 (NJ App. 2005)
Andersen, Ellen Ann. Out of the Closets and Into the Courts:
Steven. “Anti-Miscegenation Laws and the
Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of
1875.” University of
Ruth. Hybrids: Bisexuals, Multiracials, and other Misfits under American Law.
William. Gaylaw: Challenging the Apartheid of the Closet.
Barbara J. “Ideology and Race in
American History.” In Region, Race, and Reconstruction: Essays in
Honor of C. Vann Woodward. Eds. J Morgan
Kousser and James M. McPherson.
Grace Elizabeth. Making Whiteness: The Culture of Segregation in the South, 1890-1940.
Martha. White Women, Black Men: Illicit Sex in the Nineteenth-Century South.
Randall. Interracial Intimacies: Sex, Marriage, Identity, and Adoption.
Andrew. The Color-Blind Constitution.
Leaming, Jeremy. “Unholy Matrimony: President Bush, Religious Right Join Hands to Push for Marriage Amendment.” Church and State April 2004: 80-82.
Kristin. Abortion and the Politics of
Marcosson, Samuel. “Colorizing the Constitution of Originalism: Clarence Thomas at the Rubicon.” Law and Inequality 16: 429-491, 1998.
McConnell, Michael. “Originalism and the Desegregation Decisions.” Virginia Law Review 81: 947-1140, 1995.
Jannell and John Davis. “Same-Sex
Marriage Ban Clears Hurdle.” The
Mumford, Kevin. “The Miscegenation Analogy Revisited: Same-Sex Marriage as a Civil Rights Story.” American Quarterly 57: 523-31, 2005.
“Racial Constructions: The Legal Regulation of Miscegenation in
Peggy. “Miscegenation Law, Court Cases,
and Ideologies of “Race” in Twentieth-Century
Peggy. “Sex, Gender, and Same-Sex
Marriage.” In Is Academic Feminism Dead? Theory in Practice. Ed. Social Justice Group at the Center for
Advanced Feminist Studies,
Charles F. Dangerous Liaisons: Sex and Love in the Segregated South.
Ruthann. Lesbian (Out)Law: Survival Under the Rule of Law.
William, Ward, David, Atkins, Leah and Flynt, Wayne.
Romano, Renee. Race Mixing: Black-White Marriage in
Priscilla. 2005. Nuptial Nation: Marriage
and the Politics of Civic Membership in the
Peter. Tell the Court I Love My Wife: Race, Marriage, and the Law – An
 Initially presented at the 2005 annual meeting of the Law and Society Association. The author extends her thanks to Priscilla Yamin, Lennie Feldman, Lizzie Reis, Kevin Kruse, and Gerry Berk for helpful suggestions and comments. She is particularly grateful to Peggy Pascoe, whose feedback was very helpful and whose lengthy engagement with these questions has enlightened us all.
 I claim that this objection is tautological because part of what the contemporary legal struggle over same-sex marriage has put into play is the appropriate standard of review for differentiations based in sexual orientation.
 A few other classes of legal challenges stand out. Several states have heard questions about the extension of benefits provided to public employees to their domestic partners. Others have grappled with state officials’ refusals to permit same-sex couples to adopt the same last name. Numerous other cases struggle with the extent to which same-sex relationships should be treated in the same way as opposite-sex relationships for purposes of disposal of property, determinations of child custody, and alleged violations of custody orders disallowing non-marital sexual relationships. Still others, in a manner reminiscent of the racial definition cases of the 1910s through the 1930s, parse out the gendered identification of transsexuals for legal purposes.
 The points raised most frequently in response to claims about the natural procreation of children are that many heterosexual couples cannot procreate “naturally” or choose not to procreate and that the children born and/or raised within many heterosexual marriages are not the biological children of both of the members of the opposite-sex couple.
 The proposed amendment had almost no
difficulty going through
 This should not be taken as a