The Miscegenation/Same-Sex Marriage Analogy: What Can We Learn from Legal History? [1]

 

 

 

 

 

Julie Novkov

Associate Professor of Political Science and Women’s Studies

University at Albany, SUNY

 

 

 

Approximate word count (including bibliography): 12,390

Approximate character count: 67,940

 

 


The Miscegenation/Same-Sex Marriage Analogy: What Can We Learn from Legal History?

 

 

Abstract: It has become a commonplace among historically inclined legal scholars to look to the history of the United States’ elimination of bans on mixed-race sexual relationships for guidance about the recent controversy over same-sex marriage. This paper argues that, while the analogy is helpful, it is not perfect because of the particular historical circumstances of the battle over legitimizing interracial marriage. Because regulations against 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. 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 because it is not tied to the dominant ideological stance of color-blindness that drove the elimination of bans on interracial marriage through constitutional means.

 



 

            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 California’s 1948 elimination of the ban on interracial marriage more fruitfully than the more well known analogy to Loving v. Virginia.

            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

            As 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 Alabama as a significant example of how this process worked on the state level.

            As 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, Alabama only formally outlawed interracial marriage in 1852, rendering it a misdemeanor for a minister or public official to solemnize an interracial marriage.  Nonetheless, as the Civil War broke out, a wide swath of states ranging from the south into the west barred interracial marriage and defined the attempt to marry across the racial line as a crime (Wallenstein 2003: 49-50).  The types of relationships subject to statutory disapproval varied.  In the south and east, the primary concern was with relationships between African Americans and whites, while the southwest and western states tended to include Native Americans and variously identified Asian races as subject to a prohibition on intermarriage with whites.  To the extent that race was defined in these statutes, legislators tended to focus on the blood quantum necessary to make an individual black.  Whiteness was universally left undefined.

            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 Alabama going further and banning interracial fornication and adultery as well.  The impact of the new equality upon traditional norms against interracial relationships was a topic of discussion in Congress as the body debated civil rights legislation and the fourteenth amendment. While some recent scholarship has suggested that the Radical Republicans in Congress meant to implement sweeping egalitarian reform that included the elimination of bans on interracial intimacy and the desegregation of schools, those voting on the Fourteenth Amendment on the state level likely did not favor these implications as consequences of its passage (Bank 1995, Marcossen 1998, Kull 1992).

The turmoil in Alabama is illustrative.  The reconstituted state legislature passed a criminal ban on interracial intimacy almost immediately in 1865.  This law, however, did not merely reiterate the previous ban. Rather, it rendered interracial marriage, adultery or fornication a felony punishable by a 2-7 year term in the Alabama state penitentiary.  With the overwhelming national victory for Republicans in 1866, Alabama faced an attitude of confrontation rather than conciliation from the national level, and a swelling of Republican sentiment on the state level among new black voters and those who had been sympathetic to the union’s cause.  The constitutional convention called in late 1867 featured a diverse range of delegates and included some black representatives, and in discussions about a new constitution, the conventioneers considered and rejected a constitutional ban on interracial marriage (Robinson 2003).  This constitution at first was not adopted because the minimum majority turnout threshold was not reached.  Many white voters were prevented from voting because of their connection to the rebellion, and others boycotted in part because of their dissatisfaction at the lack of a provision banning interracial marriage.  A new election was conducted under federal oversight, resulting in its adoption in 1868.  It was the most progressive constitution Alabama would see for years to come, and it was not to last.  A new constitutional convention was held in 1875, and while this group did not produce a provision barring interracial marriage, the tenor was significantly reactionary (Rogers et al. 1994).

            The Alabama constitution of 1868 generated a government of Republicans and reformers; in contrast to the popular image of scalawags and carpetbaggers, this government was largely composed of individuals who had deep connections to the state but had either opposed secession or had maintained only lukewarm support for the Confederacy.  The Alabama Supreme Court was no exception to this pattern, and in 1872, the court invalidated Alabama’s harsh ban on interracial marriage, adultery, and fornication in Burns v. State (48 Ala. 196 (1872)).  While this ruling was exceptional, Alabama was not the only southern state to abandon efforts to criminalize interracial intimacy during the height of Reconstruction.  South Carolina, Louisiana, and Mississippi all repealed their bans between 1868 and 1870, and Arkansas failed to include a ban in its comprehensive criminal code published in 1874 (Wallenstein 2003: 80).

            The 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 Alabama) had reinstituted bans immediately that then came under challenge.  Other states that had not undergone a process of reconstitution saw the Fourteenth Amendment used as a basis to challenge their statutes (i.e., Indiana).  Still other states generated new bans in the post-Reconstruction era.  By the turn of the century, however, bans were firmly in place across the south and west, and the only changes to take place (aside from the adoption of more rigid definitions of race in the south) were the additions of bans in several states as late as 1913.  Between 1887 and 1948, no state eliminated a ban, either legislatively or judicially, and despite a wave of decriminalizations in the West in the 1950s and 1960s, seventeen states still had bans on their books when Loving v. Virginia was appealed to the US Supreme Court in 1967 (Wallenstein 2003: 253-54).

            These 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 Alabama is illustrative of this process.  Alabama in 1872 did not have an anti-miscegenation regime.  By 1901, a rigid policy barring interracial intimacy was written into its state constitution. By 1927, Alabama had moved to a one-drop rule of defining blackness in order to achieve the maximum separation between the races and to ensure the continued primacy of the white family as the normative unit of the state.

            Almost immediately after the Alabama Supreme Court’s ruling in Burns v. State, state actors began working to re-implement the ban.  Burns ruled in a straightforward sense that both the Civil Rights Act of 1866 and the Fourteenth Amendment had generated equality in citizenship.  As the court saw marriage as a type of contract, the opinion explained that blacks and whites now had the same rights to contract with each other and that a marriage contract between a black individual and a white individual was as valid as a marriage contract between two individuals of the same race.  The ruling avoided the thornier question of status, which a previous court had used in an appeal of a conviction for miscegenation in 1868 as a jurisprudential means of upholding the law (Ellis v. State, 42 Ala. 525 (1868)).

            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)). 

The court confronted Burns more directly in 1878 in Green v. State, which addressed an interracial marriage and thus could not rely on a strategy of distinction.  The Green Court challenged Burns’ understanding of contract directly by shifting its reading of the nature of marriage.  The first principle the court articulated was that marriage contracts differed substantially from other types of contracts.  For instance, they could be formed by individuals (women) “not capable of forming any other lawful contract” (Green v. State, 58 Ala. 190 (1878)).  Marriages, unlike other civil contracts, could be violated and annulled by law.  The rights and obligations of marriage were legally determined rather than being subject to the rational will of the contracting parties (Id. at 193, citing Townsend v. Griffin, a Delaware case).  This conceptualization of marriage presented marriage not primarily as a private agreement between individuals but rather as a relationship of public significance and under the state’s control.  Citing a Kentucky case, the Court continued by describing marriage as “the most elementary and useful of . . . [all social relations], . . . regulated and controlled by the sovereign power of the State” (Id., citing Maguire v. Maguire).  This interpretation of the state’s intimate involvement with marriage had two purposes: it counteracted any claim that marriage was like any other private contract and thus was subject to the civil equality mandated by the Civil Rights Act and the Fourteenth Amendment, and it placed the primary responsibility for regulating marriage squarely in the hands of the state, not the federal government. 

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 [Id. at 194].

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, Indiana had ruled in a single case that its law barring interracial marriage withstood constitutional challenge in Gibson v. State.  Like the Green court, the Gibson court centered its analysis on the concept of marriage and its place within the state.  Gibson emphasized the states’ traditional power to regulate marriage, determine its scope, and set parameters for acceptable marriages.  In addition to relying on the special nature of the marriage contract, the court emphasized the central significance of marriage and families to the state, using this centrality as a basis for allowing the states to shape their ideal citizenry (Gibson v. State). This ruling enabled Indiana’s segregated school system to survive a constitutional challenge three years later in Cory v. Carter (48 Ind. 327 (1874)).

The ruling in Green grounded the Alabama high court’s ruling in Pace & Cox v. State, in which the court revisited the issue and articulated the rule of symmetry: because the punishments for blacks and whites were the same, the declaration that interracial intimacy was a felony did not violate equal protection.  Further, the heightened penalty for adultery or fornication was good public policy, since “The evil tendency of the crime . . . is greater when . . . committed between persons of the two races . . . .  Its result may be the amalgamation of the two races, producing a mongrel population and a degraded civilization, the prevention of which is dictated by a sound public policy affecting the highest interests of society and government” (Pace & Cox v. State, 69 Ala. 231, 233 (1882)).   This reasoning picked up on and extended the reasoning in Green I concerning the central place of the family in state structure.  Green and Pace, when read together, present a picture of sharply dichotomous families: the legitimate, intraracial, white cornerstone of the state, and the illegitimate, threatening, destructive interracial not-family.  This reasoning rendered racial separation not merely permissible, but actually necessary for the future survival of the state. 

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 Alabama’s (or other states’) declarations about the significance of marriage and family to the state.

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 United States for the bulk of the next seventy years.  First was the idea that marriage contracts had public significance.  Both cases centered marriage as the fundamental relationship of citizens, and as such, an institution in which the state was deeply interested.  Second was the identification of families, not individuals, as the fundamental units of the state.  Implicit in this placement of families was the normative embrace of the white family as both crucial and vulnerable.  Third was the leveraging of this special relationship between marriage and the state as the grounding for state-based control over marriage as an institution. 

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, in Alabama and elsewhere, criminal prosecutions for interracial intimacy often succeeded against white male-black female couples, and these couples did not have significantly more success in appealing their convictions (Novkov 2002).  The language of court opinions demonstrates clearly that the states’ major concern was with the formation of committed interracial families, not simply with the prevention of interracial sex (Robinson 2003). 

Second, the anti-miscegenation regime was crucial in policing the racial boundary as a political matter.  Many states either implicitly, or as in the case of Alabama, explicitly expressed white supremacy as the fundamental basis and goal of post-bellum state institutional practice.  The states used criminal prohibitions on interracial intimacy to ground and articulate this political program.  By prosecuting individuals for crossing the racial barrier and by discussing the evidence, proper procedures, and elements of the crime, legal actors could work out the meaning of the legal regime of supremacy and develop modes of legitimation (Wallenstein 2003, Robinson 2003, Kennedy 2003).

            Third, 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 California’s ban on interracial marriage in Perez v. Sharp to the US Supreme Court’s rulings in McLaughlin v. Florida and Loving v. Virginia (see Pascoe).

            Perez involved a challenge to California’s ban on interracial marriage, which extended to any relationship between a “white person” and “a Negro, mulatto, Mongolian or member of the Malay race” (Perez v. Sharp, 32 Cal.2d 711, 712 (Cal. 1948)).  The case came in the posture of a proceeding in mandamus, as an interracial couple sought an order compelling the County Clerk of Los Angeles County to issue a marriage license to them.  The clerk refused the license to Andrea Perez and Sylvester Davis because she was white and he was black.  Perez grounded her suit in freedom of religion, arguing that they were entitled to receive the Roman Catholic sacrament of marriage (Id.).  Avoiding this line of constitutional argumentation by citing Reynolds v. United States, the court turned instead to an analysis of the underlying state interests.  In the person of Chief Justice Roger Traynor, the court explained: “If the miscegenation law under attack . . . is directed at a social evil and employs a reasonable means to prevent that evil, it is valid regardless of its incidental effect upon the conduct of particular religious groups” (Id. at 713-14).  The right around which the case would pivot was the right to marry, a right “as fundamental as the right to send one’s child to a particular school or the right to have offspring” (Id. at 715).  Traynor framed this right as individual rather than group-based in its nature.

            The 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” (Id. at 725).  Ultimately, the court had tied the policy thoroughly and effectively to an underlying justification of white supremacy, which it read as both empirically inaccurate and constitutionally unacceptable.

            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 Alabama case had been appealed up, but had decided that the struggle over school desegregation was sufficiently controversial to warrant delaying this confrontation (Wallenstein 2003).  By 1967, however, the Court had taken significant heat over its dismantling of the Jim Crow regime and Congress and the executive branch had signaled approval of this institutional agenda.  Thus, when the Loving case came before the Court, not only were the plaintiffs a sympathetic couple; the timing was appropriate as well.

            In fact, Pace v. Alabama had been overturned in 1964 in the little noted case of McLaughlin v. Florida.  That case had invalidated Florida’s harsher punishment of interracial than intraracial cohabitation (McLaughlin v. Florida, 379 US 184 (1964)).  Loving, however, confronted the question in its broad constitutional significance, and the Court presented the opinion as a definitive repudiation of white supremacy (Loving v. Virginia, 388 U.S. 1, 6).  The reasoning in the case focused less on the genealogy of white supremacy than on the meaning of the fourteenth amendment.  On the equal protection side, the Court explained, “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. . . . We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race.  There can be no doubt that restricting the freedom to marry solely because of racial classifications violates . . . the Equal Protection Clause” (Id. at 11-12).  Equality thus mandated the state’s ignoring the races of the parties seeking a marriage license.

            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.[2]  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. 

            What, 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 Hawai’i in 1993 and reaching its most visible and significant moment in 2003 with Massachusetts’ ruling in Goodridge, this phase demonstrated the scope of conflict over the state’s pre-existing interests in heterosexual marriage.  The third stage has been the wave of constitutional changes seeking to bar state high courts from mandating the recognition of same-sex marriage.  This struggle demonstrates in stark terms how the debate over same-sex marriage is shifting rapidly and has suddenly developed the potential to become a site for the articulation of an exclusionary conception of marriage, citizenship, and state functioning.

            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. 

            The 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 Hawai’i state constitution.  The court remanded the case for the state to have the opportunity to articulate a compelling interest in differentiating between same-sex and opposite-sex couples.  Upon remand, the circuit court found that the state had not met this burden in its claims that the traditional nature of marriage should ground the limit.  In order to prevent what seemed to be the likelihood that the high court would uphold this ruling, voters in the state approved an amendment to Hawai’i’s constitution limiting marriage to a man and a woman, the first such amendment.  This struggle in the most geographically isolated of the fifty states sparked a wave of litigation against state actors’ refusal to issue marriage licenses to same-sex couples and a nearly simultaneous wave of state constitutional amendments presented as defenses of traditional marriage.

            Vermont was next.  Baker v. State represented a court’s effort to split the difference, with the opinion announcing that “the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law” (Baker v. State, 170 Vt. 194, 197 (1999)).  The court explicitly declined to decide whether only marriage would suffice, leaving the door open for the legislature to embrace civil unions.  In justifying this decision, the court identified the state’s interest as “promoting a permanent commitment between couples who have children to ensure that their offspring are considered legitimate and receive ongoing parental support” (Id. at 881).  Allowing same-sex marriage, in this view, would undermine the link between procreation and child-rearing and would devalue the roles of mothers and fathers in this process.  The court turned to Loving for support, resting its reasoning on a principle of freedom to marry and the need to extend the benefits and protections of marriage on an equal basis (Id. at 220). 

Despite extensive 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 [not] intended to discriminate against women or lesbians and gay men, as racial segregation was designed to maintain the pernicious doctrine of white supremacy” (Id. at 226).  The conflation of segregation with the specific policy of barring interracial marriage was likely unconscious, but demonstrates how the issues were linked retrospectively in the public mind.

In a case that likely would have received more attention had it not been for subsequent events, Arizona ruled against same-sex marriage in Standhardt and Keltner v. Superior Court in October of 2003.  The plaintiffs, relying on the US Supreme Court’s ruling in Lawrence announced that summer, argued that Arizona’s statutory prohibition of same-sex marriage was unconstitutional on state and federal grounds.  The court considered the case through the lens of fundamental rights, asking whether the fundamental right to marry necessarily included “the freedom to choose a same-sex spouse” (Standhardt and Keltner v. Superior Court, 206 Ariz. 276, 280-81 (2003)).  The framing of the question determined an answer in the negative.

The justices rejected the effort to rely on Lawrence, noting that the US Supreme Court had itself explicitly reserved this question.  Further, the court noted that the rights to self-determination and dignity articulated in Lawrence did not necessarily extend to eliciting state support for same-sex marriage.  Finally, the court ruled that no fundamental right to enter into a same-sex marriage could be readily derived either from the state or federal constitution (Id. at 282).  The court finished by finding that the state’s interests in “encouraging procreation and child-rearing within a stable environment” were rational and that the sanctioning of heterosexual relationships alone “communicates to parents and prospective parents that their long-term, committed relationships are uniquely important as a public concern” (Id. at 286).  These benign reasons and interests did not, in the court’s reading, rest upon animus toward homosexuals.

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 Massachusetts court relied upon several provisions of the Massachusetts constitution mandating equality and limiting the scope of government (Goodridge v. Department of Public Health, 440 Mass. 309, 316 (2003)).  While pro-same-sex marriage advocates have frequently compared it to Loving v. Virginia, the much stronger analogy is to Perez v. Sharp.  Like the Perez court, the Goodridge court carefully and empirically deconstructed the state’s justifications for maintaining exclusionary marriage laws.

The court opened with the observation that civil marriage itself is a creature of the state and has been throughout the history of Massachusetts.  Far more than mere private choice or contract, civil marriage was the transformation of a private relationship into a set of publicly defined rights, benefits, and obligations.  In contrast, however, to advocates for the state’s conception of marriage, the court read the flow of benefits and obligations in two directions: between the married individuals and from the state to the marital unit (Id. at 322-25).  While the court acknowledged that marriage can be limited by “appropriate government restrictions in the interests of public health, safety, and welfare,” the majority parsed closely through the state’s numerous attempts to implicate one of these categories and found all wanting (Id. at 328, 331-36).  Empirical justifications based on children’s best interests were swept aside along with pleas based in the traditions of marriage and views that homosexuality is immoral; where possible, the court rested its reasoning on other areas of Massachusetts law recognizing discrimination based on sexual orientation as problematic.

Civil marriage 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” (Id. at 343).  Marriage was both a private relationship governed by free individual choice and a public imprimatur of legitimacy, bringing the relationship within the boundaries of ordinary law.

The dissent, like the dissent in Perez v. Sharp, took issue with nearly every element.  The Massachusetts dissenters, like their counterparts in Vermont, noted that Massachusetts did not establish an explicit ban on same-sex marriage in order to generate and preserve an exclusionary state (Id. at 352).  In language reminiscent of that used in Pace v. Alabama, the dissenters embraced a thin conception of equality, noting that all individuals are free to marry (Id.).  Much more central for the dissenters, however, was the claim of judicial usurpation of a legislative function.

In early 2005, Indiana considered a similar challenge to its exclusion of same-sex couples from marriage.  Refusing to find either a fundamental right or a protected class implicated, the court conducted its review under a rational-basis rubric.  In its analysis, the court found that the central inquiry was “whether the recognition of same-sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation”  (Morrison v. Sadler, 821 N.E.2d 15, 17 (Ind. App. 2005)).  Highlighting what it saw as fundamental differences between procreative methods used by same-sex and opposite-sex couples, the court concluded that these distinctions “impact[] the State of Indiana’s clear interest in seeing that children are raised in stable environments.  Those persons who have invested the significant time, effort and expense associated with assisted reproduction . . . may be . . . very likely to be able to provide such an environment, with or without the ‘protections’ of marriage” (Id. at 24).  Thus the potential for accidental procreation through heterosexual carelessness generated a rational basis for limiting marriage to heterosexual couples.  The state interest that legitimized the differentiation was that of promoting responsible heterosexual procreation.

The doctrinal record in New York is still evolving.  In a ruling from a Manhattan trial court, Judge Doris Ling-Cohan relied heavily on the anti-miscegenation analogy to find “a fundamental right to choose one’s partner in marriage” (Hernandez et al. v. Robles, 2005 NY Slip Op 25057 (2005)).  Like her colleagues in Arizona, Ling-Cohan relied upon the state’s interest in “securing . . . the bonds between parents and children and the protection of children raised in the family,” but in her analysis, these interests directed a decision in favor of same-sex marriage as the best way to fulfill them (Id.).  This analysis is supplemented with a strong reading of a due process right to liberty encompassing the freedom to marry.  The state’s expressed interests – noted as protecting tradition and preventing interstate and federal conflicts – were rejected as insufficiently strong and as lacking in recognition of reality (Id.).  The opinion closed with an analysis of marriage’s central significance to individuals and the need for state recognition on an equal basis.  Marriage, in this view, was now “both a partnership of two loving equals who choose to commit themselves to each other and a State institution designed to promote stability” (Id.).  Far from acknowledging moral and religious hostility toward homosexuals as the logical root of the state’s failure to recognize same-sex marriage, the opinion specifically stated that the continued existence of these prejudices further undermined the case against same-sex marriage.

Nonetheless, less than three weeks later another New York trial court weighed in on the opposite side.  In Seymour v. Holcomb, a case arising in Ithaca, the trial court refused to order the city clerk to issue marriage licenses to same-sex couples (2005 NY Slip Op. 25070 (2005)).  In a much pithier ruling, Judge Robert Mulvey explained that New York’s law in no way authorized the issuance of licenses to same-sex couples and found no constitutional basis for generating such authorization.  For purposes of equal protection review, the plaintiffs failed because “they have not established that the Legislature was irrational in recognizing what is considered a unique and distinct social benefit derived from heterosexual marriage, to wit: natural procreation and child-rearing” (Id.).  Likewise, he construed the due process claim as whether the plaintiffs had a fundamental right to enter into same-sex marriages and unsurprisingly discovered no such right in either the language or the history and traditions of the state or federal constitutions (Id.).[3] Most recently and in the same region of the country, an intermediate appellate court in New Jersey ruled against same-sex marriage in the summer of 2005 on the ground that New Jersey’s Domestic Partnership Act sufficiently addresses the inequities created by limiting marriage to opposite-sex couples ((Lewis and Winslow v. Harris, 2005 N.J. Super. LEXIS 186 (NJ App. 2005)).

Naturally, these 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 Lawrence, states have been careful not to heighten the analogy by situating their efforts as an attempt to embed state practices based in dislike, distaste, or hatred for homosexuals and homosexuality.  Rather, the conflict has been framed over the normative organization of the family and the extent to which the state may privilege certain family structures as healthy and desirable.

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 Indiana’s concerns about creating incentives for managing unplanned heterosexual procreation to the New York trial court’s reliance on the “unique and distinct social benefit” in “natural procreation and child-rearing.”  Much ink has been spilled on the slipperiness of the place of procreative sex in arguments over same-sex marriage, and these arguments need not be reviewed here.[4]  The point is simply that the implicit assumption of exclusive heterosexual procreative intercourse in marriage undergirds state support for preventing same-sex marriage.  Rulings that invalidate exclusionary practices center child-rearing and families in their justifications, but do so in a different way.  Rather than focus on the process through which the children have been conceived, these rulings note the importance of protecting intact families through the provision of state recognition and benefits.  The children themselves are centered rather than the biological process through which they have been created.

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 states.  Alabama’s voters will almost certainly approve a state constitutional amendment banning same-sex marriage in November of 2006.[5]

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.

            For 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.  Events in Massachusetts and California suggest that these kinds of arguments can, with effective pressure, work with state-level legislators.  In the early fall of 2005, California’s legislature passed a law authorizing same-sex marriage, and Massachusetts refused to replace marriage with civil unions; these events show how effective LGBT interest groups have been in statehouses.

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 Oregon’s Measure 36 to close debate on the issue of same-sex marriage, the court wiped out approximately 3,000 marriages that had taken place mostly in Multnomah County in the spring of 2004.  The plaintiffs had filed a suit similar to the previously discussed litigation prior to the passage of Measure 36 but argued in the wake of its passage that it merely expressed an aspirational view of marriage.  The court disagreed, reading Measure 36 as a clear indication of the voters’ will to deny marriage to same-sex couples (Li v. State, 2005 Ore. LEXIS 144).  In the court’s reading, the passage of Measure 36 foreclosed any close inquiry into the possibly nefarious intentions of the voters.  Because Measure 36 was a constitutional amendment, the court was unwilling even to return to an analysis of the intentions and state interests behind the pre-existing statutory language defining marriage as a relationship between men and women (Id.).  As other states confront their amendments, similar outcomes seem likely.  The path of constitutional amendment forecloses further judicial debate over the meaning of marriage and family, allowing only room for procedural questions about the scope and nature of the amendments themselves.  The amendments thus move the locus of conflict over the meaning of same-sex marriage directly into the political and cultural arena, where religious activists see stronger chances of victory.

            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.

            Even 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 Alabama, the state constitution of 1901 also consolidated power in a Montgomery-based conservative Democratic elite – but supremacy was a political end, not a means.  In the current struggle, much of the agenda for resisting efforts to legitimize same-sex marriage is being driven by conservative Christian interest groups rather than embedded political elites.  The concrete policies against same-sex marriage are being implemented through mass democratic change in the form of initiatives and referenda rather than elite creation of statutes and elite-driven constitutional conventions.  Further, the ultimate goal of these non-governmental political actors seems to be broader: the establishment of a heterosexually supremacist state would be embraced by those promoting the amendments, but is also a means to an end.  They seek the embedding of conservative Christian values at the center of the contemporary state, an agenda that transcends its flashpoint cultural struggles over same-sex marriage and, prior to this battle, abortion.

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?

A developmental 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 Lawrence.[6]

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.

 


BIBLIOGRAPHY

 

Cases


Ellis v. State, 42 Ala. 525 (1868)

Burns v. State, 48 Ala. 196 (1872)

Ford v. State 53 Ala. 150 (1875)

Hoover v. State, 59 Ala. 58 (1878)

Green v. State, 58 Ala. 190 (1878)

Green et al.  v. State 59 Ala. 69 (1878)

Pace & Cox v. State, 69 Ala. 231 (1881)

Pace v. Alabama, 106 U.S. 583 (1883)

McLaughlin v. Florida, 379 U.S. 184 (1964)

Loving v. Virginia, 388 U.S. 1 (1967)

Lawrence v. Texas, 539 U.S. 558 (2003)

Perez v. Sharp, 32 Cal.2d 711 (Cal. 1948)

Baehr v. Lewin, 74 Haw. 530 (1993)

Baker v. State, 170 Vt. 194 (1999)

Standhardt and Keltner v. Superior Court, 206 Ariz. 276 (2003)

Goodridge v. Department of Public Health, 440 Mass. 309 (2003)

Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005)

Hernandez et al. v. Robles, 2005 NY Slip Op 25057 (2005)

Seymour v. Holcomb, 2005 NY Slip Op. 25070 (2005)

Li v. State, 2005 Ore. LEXIS 14

Lewis et al. v. Harris, 2005 N.J. Super. LEXIS 186 (NJ App. 2005)

 


 

Secondary Sources

Andersen, Ellen Ann. Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation.  Ann Arbor, MI: University of Michigan Press, 2004.

Bank, Steven.  “Anti-Miscegenation Laws and the Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of 1875.” University of Chicago Law School Roundtable 2: 303, 1995.

Colker, Ruth.  Hybrids: Bisexuals, Multiracials, and other Misfits under American Law.  New York, NY: New York University Press, 1996.

Eskridge, William.  Gaylaw: Challenging the Apartheid of the Closet.  Cambridge, MA: Harvard University Press, 1999.

Fields, 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.  New York: Oxford University Press 1982.  Pp. 143-77.

Hale, Grace Elizabeth.  Making Whiteness: The Culture of Segregation in the South, 1890-1940.  New York: Pantheon Books, 1998. 

Hodes, Martha.  White Women, Black Men: Illicit Sex in the Nineteenth-Century South.  New Haven: Yale University Press, 1997.

Kaplan, Sidney. “The Miscegenation Issue in the Election of 1864.” Journal of Negro History 34.3 (1949): 274-343.

Kennedy, Randall.  Interracial Intimacies: Sex, Marriage, Identity, and Adoption.  New York: Pantheon Books, 2003.

Kull, Andrew.  The Color-Blind Constitution.  Cambridge, MA: Harvard University Press, 1992.

Leaming, Jeremy.  “Unholy Matrimony: President Bush, Religious Right Join Hands to Push for Marriage Amendment.”  Church and State April 2004: 80-82.

Luker, Kristin. Abortion and the Politics of Motherhood.  Berkeley and Los Angeles, CA: University of California Press, 1984.

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.

McGrew, Jannell and John Davis.  “Same-Sex Marriage Ban Clears Hurdle.”  The Montgomery Advertiser, February 9, 2005.

Mumford, Kevin. “The Miscegenation Analogy Revisited: Same-Sex Marriage as a Civil Rights Story.” American Quarterly 57: 523-31, 2005.

Novkov, Julie. “Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890-1934.” Law and History Review 20 (2002): 225-77.

Pascoe, Peggy.  “Miscegenation Law, Court Cases, and Ideologies of “Race” in Twentieth-Century America.”  The Journal of American History 83: 44-69, 1996.

Pascoe, 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, University of Minnesota.  New York: New York University Press, 2000.  Pp. 86-129.

Robinson, Charles F.  Dangerous Liaisons: Sex and Love in the Segregated South.  Fayetteville, AR: University of Arkansas Press, 2003.

Robson, Ruthann.  Lesbian (Out)Law: Survival Under the Rule of Law.  Ann Arbor, MI: Firebrand Books, 1992.

Rogers, William, Ward, David, Atkins, Leah and Flynt, Wayne.  Alabama:  The History of a Deep South State.  Tuscaloosa, AL:  University of Alabama Press, 1994.

Romano, Renee. Race Mixing: Black-White Marriage in Postwar America. Cambridge, MA: Harvard University Press, 2003.

Yamin, Priscilla. 2005. Nuptial Nation: Marriage and the Politics of Civic Membership in the United States.  Ph.D. diss., Political Science, New School University, New York, NY.

Wallenstein, Peter.  Tell the Court I Love My Wife: Race, Marriage, and the Law – An American History.  New York, NY: Palgrave MacMillan, 2002.

 



[1] 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.

[2] 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.

[3] 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.

[4] 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.

[5] The proposed amendment had almost no difficulty going through Alabama’s legislature.  Representative Alvin Holmes, who also spearheaded the campaign to remove Alabama’s ban on interracial marriage from the state constitution, mounted a filibuster against the amendment in Alabama’s House, but the amendment passed there by a vote of 85-7 and unanimously in the Senate (McGrew & Davis 2005).

[6] This should not be taken as a rejection of Lawrence, which indeed has had a major and positive impact on the lives of thousands of LGBT individuals in more than a dozen states.  Nonetheless, Lawrence can more effectively be interpreted as the first step in a revisioning of concrete citizenship rights rather than as a model of thin equality that can simply be extended to other contexts involving LGBT individuals.