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 discuss the connection between racism and homophobia and how it applies to marriage and constitutional jurisprudence, which will further be clarified through discussion on 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 justified the defendants’ decision of keeping anti-miscegenation laws in place, and said that the defendants 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 the ruling was based entirely on the separation of race because the case involved a white and black plaintiff. Also, the court of Virginia clearly ignored constitutional jurisprudence and used rational basis instead of strict scrutiny to decide over the case. The vote to marry, which is a fundamental right, falls under strict scrutiny, so the basis for the courts decision was false from the beginning. 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 law 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 in relation to how new miscegenation was at the time of Loving. There are many arguments such as religious beliefs and scripts of the LGBT individual that are being used 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. This should not be the case because of the right to marry falling under strict scrutiny, and for the courts to use rational basis instead is going against how the judicial system is supposed to work, but because law is a social construction it is subject to biased beliefs.
The effect of the majority’s opinion on the legal system is the reason that anti-miscegenation laws stayed sanctioned for such a long period of time. This reasoning is due to the legal system being a social construction. 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, and because of how greatly it is affected by beliefs of those in power, law by definition is a social construction. One example in law is how views on miscegenation marriage have changed over the years. In an article Julie Novkov, she gives a background on miscegenation and how rooted it was in America’s history.[1] With everyone having the same beliefs, the rulings in courts will go in favor of the majority even if the beliefs are unconstitutional like in Loving. Since it is society that has the last say in courts and law is not concrete, law is as a result a social construction. Anything that falls under law including marriage, despite being a fundamental right, is a social construction, because society and not the individual decide who can marry.
In order to further understand the rulings on interracial and same-sex marriage one must be familiar with marriage as an institution under law, 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 forming marriage to their views 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 of the requirements that must first be met before the consideration of marriage can be given to a couple. As a counter-argument, Samuele Bacchiocchi explains in a short article, through a religious point of view, how marriage cannot be an institution.[2] This article gives a different view of marriage, but also shows the need to separate religion and state. However, due to law being a social construction, separate doesn't always happen because of how beliefs and traditions influence rulings in court. To sum marriage up, Garbrielle Kozik, she said that "the meaning of marriage and the laws that regulate the institution of marriage are determined by the American democracy. By regulating who can marry whom, 'the state is actively involved in creating social and civic relations for both men and women through legal marriages' (Cott 79). Current marriage law as defined by the United States government and the American democracy effectively maintains the nature of marriage to be heteronormative."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[3], 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.
Another 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 state 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, and that since the procreation argument didn't hold up in court for anti-miscegenation laws then the same should apply to same-sex bans today.
The argument against same-sex marriage is that, because a same-sex couple cannot procreate without a third party then they should not have the right to marry. This argument is greatly flawed in the sense that 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.[4] 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.
To sum it up, the concepts of racism, tradition, and procreation have all been used to argue for anti-miscegenation laws, but were all in time ruled unconstitutional. Since these concepts are now being used for same-sex marriage bans, the same ruling should be applied, in that these concepts were unconstitutional then and should be ruled unconstitutional now.
Words Cited
Alliance Defense Fund. DOMA watch. ADF, 2008. Web. December 2, 2010. <http://www.domawatch.org/index.php>
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)
Pascoe, Peggy. "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America." Journal of American History 83 (June 1996): 44-69.
[1] Julie Novkov, Historical Background on Miscegenation, 1997-2008, http://academic.udayton.edu/race/04needs/sex04.htm (December 2, 2010)
[2] Samuele Bacchiocchi, The Marriage Covenant: A Biblical Study on Marriage, Divorce, and Remarriage, http://www.biblicalperspectives.com/books/marriage/1.html, 1992, December 2, 2010.
[3]Supreme Court of The United States, Loving v. Virginia, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html, 1967, December 2, 2010
[4] Supreme Court of The United States, Turner v. Safley, http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/turnervsafley.html, 1987, December 2, 2010
