In the consolidated In Re Marriage Cases ruling, the California Supreme Court stated that “the right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual.” Having marriage as a fundamental right would lead one to believe that it would be untouchable by the state and federal government, but this was and still is not the case. Many arguments and ideas that were once used against miscegenation are now being used against same-sex marriages, and because these arguments and ideas were ruled unconstitutional and discriminatory before, the same result should occur today. The beginning of this essay will set some background information on constitutional jurisprudence to then discuss the connection between racism and homophobia and how it applies to marriage, which will further be clarified through marriage as an institution. How law is a social construction will set the pathway to how procreation is used as an argument for same-sex marriage bans Then the role of “tradition” will be explored, and then lastly the argument of procreation, of whether marriage should be given those who cannot have children, will be examined and how it is tied in with interracial and same-sex marriages.
The rulings behind today’s same-sex marriage bans run parallel to the rulings that were used to keep anti-miscegenation laws legal. Even when most of the country accepted interracial marriage there were still some states that had anti-miscegenation laws in effect. This was most apparent in the Loving v. Virginia; a US Supreme Court case, in which the court used the argument to justify the defendants’ decision of keeping anti-miscegenation laws in place, had a legitimate standing because it was “to preserve the racial integrity of its citizens.” At the time this decision was made the reasons given by the defendants were still strongly felt by those in Virginia, but now looking back it is obvious that ruling was based entirely on the separation of race. In Sexuality, Gender, and The Law, Eskridge and Hunter clarified that “The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.” When the case finally reached the Supreme Court views on marriage were already moving to towards allowing interracial marriage, which can be seen in the unanimous decision by the Justices’ ruling of Virginia’s anti-miscegenation unconstitutional. This type of ruling can also be applied to the push for same-sex marriage going on right now because of how recent and unknown the idea of same-sex marriage is. There are many arguments such as religious beliefs and the scripts of the LGBT individual that went against same-sex marriage, but the underlying factor is that there are those who are afraid of LGBT community benefiting from a right that has mainly been reserved for straight couples. The homophobes of today are a later version of the racists before, in the way that they both use the legal system to ensure their prejudiced views.
In order to further understand the rulings on interracial and same-sex marriage one must be familiar with marriage as an institution, and how it creates and takes away rights for those seeking to achieve marriage. The Defense of Marriage Act is a key example of the government putting marriage on a pedestal and making it an institution that only some care take part of. Anti-miscegenation laws were in place to keep races separate and preserve white supremacy, and same-sex marriage bans are in place today to keep marriage, the institution, for only opposite-sex couples to benefit from. For marriage to not be an institution it would need to be offered to everyone, but instead it is defined in the government through the DOMA therefore making it an institution because there are requirements that must first be met before the consideration of marriage can be given. There is an article online that looks at marriage through a religious point of view and states that marriage is not an institutional because God set the idea of marriage when God created Eve for Adam and witnessed their marriage.
The only reason that anti-miscegenation stayed sanctioned for that long of a period was because of the effect of the majority’s opinion on the legal system. This reasoning is due to the legal system being a social construction along with race and gender. The framers of the Constitution knew that as time went on views on law would change, and in order to keep up with society, amendments would need to be made. This is why law is a social construction because of how greatly it is affected by beliefs of those in power. One example in law is how views on miscegenation marriage have changed over the years. In this article by Julie Novkov, she gives a background on miscegenation and how rooted it was in America’s history. With everyone having the same beliefs the rulings in courts will go in favor of the majority even if the beliefs are unconstitutional. Since it is society that has the last say in courts and law is not concrete, law is as a result a social construction.
Another concept that connects both anti-miscegenation laws and bans on same-sex marriage is the idea of tradition being used as an argument for the banning of miscegenation and same-sex marriage. As an argument, “tradition” was to be up kept by the legal system in order to continue the practice established during the colonial days of America, which was that whites were kept separate from any minority, and that no interracial interactions were allowed. In the case, Naim v. Naim; a Virginia case, the court ruled that anti-miscegenation laws were constitutional. While this may seem absurd to us today, it was a reasonable argument because of the tradition of keeping whites and blacks separate. To those in favor of tradition, the separation of majorities and minorities was just a part of everyday life, and to question that belief would be going against the tradition passed down since the beginning of America. As it was a recent idea to have interracial marriages then, the same is applied today for same-sex marriage because of how new this view is on marriage. The California courts confirmed this in the article In re Marriage Cases when they claimed, “The lower court [of California] had rejected plaintiffs’ claim on the ground that lesbian and gay couples enjoyed no ‘fundamental right to marriage,’ because marriage had traditionally not included them.” So even though the “tradition” of excluding minorities from whites was commonly held constitutional before does not guarantee its continuation over the years because beliefs change and new generations notice the defective laws and work to change them. This is what happened to anti-miscegenation laws[1], and can be seen happening today through the consideration of dropping the policy known as “Don’t Ask, Don’t Tell.” If the policy is dropped it will be a big step for the LGBT movement in its pursuit of equal rights for LGBT community. Within the years to follow same-sex marriage will hopefully be at the same place where interracial marriages are now.
One of the main arguments against same-sex marriage is the idea that marriage is centered on procreation and the continuation of the human race, and that there is no other reason for getting married. One of the states and federal government’s main goal is to ensure the continuation of its citizens for generations to come, which can only be done through some sort of procreation. The topic of procreation has been used as an argument against miscegenation marriages to say that marriage should be reserved for the minority race or supreme race. In Loving v. Virginia, the State Supreme Court ruled anti-miscegenation laws constitutional and used the procreation argument to say that if races were allowed to procreate then the country would fall because of “the corruption of blood,” and that the “mongrel breed of citizens” created would bring down the nation. (Eskridge and Hunter 796) All the procreation argument shows is that there are still those who hold old traditions and that they try to continue those traditions through the courts.
The homophobes of today are trying to do the same by using the procreation argument to cover up their prejudiced and discrimination against the LGBT community by stating that marriage is for couples who are going to procreate, and that same-sex couples are not able to do this without a third party. They should, according to this reasoning, not be able to get married. Then again, procreation is not always the basis for marriage. In the case of Griswold v. Connecticut, the court struck down a law that made it unlawful to use contraceptives in a marriage. (In re Marriage Cases 45) Even though the decision is clearly an invasion of privacy by the federal government, it is a clear example that not all marriages are for the sole purpose of procreation, and that there are some marriages in which the couple will attempt to prevent the creation of a child. Another counter-argument is that not only are married couples allowed to prevent a child, but also that a marriage is legitimate even when having a baby is virtually impossible, akin to the case Turner v. Safley. In Turner v. Safley, the court upheld the right for those in prison to get married, and indirectly supported the assumption that marriage is not entirely based upon procreation. So for the courts today to use the procreation argument as a justification to keep marriage between a man and woman is an incorrect statement and just a distraction covering up people’s homophobia.
In conclusion, it is not hard to see that the ideas of racism and homophobia, tradition, and procreation once used against interracial marriages can be applied to the arguments being used today against same-sex marriages, and that because those ideas were ruled legally invalid then they should be ruled the same today.
Words Cited
Alliance Defense Fund. DOMA watch. ADF, 2008. Web. December 2, 2010. <http://www.domawatch.org/index.php>
Bacchiocchi, Samuele. “The Marriage Covenant: A Biblical Study On Marriage, Divorce, And Remarriage.”By Bacchiocchi. Biblical Perspectives. Web. December 2, 2010. <http://www.biblicalperspectives.com/books/marriage/1.html>
Eskridge, William and Nan Hunter. Gender, Law, and Sexuality. New York: The Foundation Press, 1997 and 2009.
In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384, 76 Cal.Rptr.3d 683 (California Supreme Court, 2008)
Novkov, Julie. “Historical Background on Miscegenation.” Race, Racism, and the Law. Vernellia R. Randall, 2008. Web. December 2, 2010. <http://academic.udayton.edu/race/04needs/sex04.htm>
Pascoe, Peggy. "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America." Journal of American History 83 (June 1996): 44-69.
Jonathan Padron
[1]The United States Supreme Court ruled that the decision in Loving v. Virginia was unconstitutional, which ended anti-miscegenation laws in the United States.
I like your comparison between interracial marriage and same-sex marriage!
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