Friday, May 28, 2010

Same-Sex Partnership is Not Like Interracial Marriage

While doing research for an academic paper on the topic of same-sex marriage and political liberalism, I was struck by how many authors, including judges, draw an analogy between bans on interracial marriage and the present law in almost every state in the United States that recognizes marriage as a union between one man and one woman.

The court cases most frequently cited by these writers are Loving v. Virginia (1967), the U. S. Supreme Court case that declared interracial marriage bans unconstitutional, and Perez v. Sharp (1948), a California Supreme Court case that did the same in relation to its state constitution. Here’s how Massachusetts’ highest court in Goodridge v. Department of Public Health (2003) employs Loving and Perez in order to make the analogy between interracial marriage and same-sex marriage:

In this case [Goodridge], as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance—the institution of marriage—because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.

Although the focus of my paper is not this analogy, the ubiquitous use of it in the literature, including some very important court cases, piqued my curiosity. What I discovered astounded me.

I learned that “at common law there was no ban on interracial marriage.” What does that mean? It means that anti-miscegenation laws were not part of the jurisprudence that American law inherited from the English courts. Anti-miscegenation laws were statutory in America (though never in England), first appearing in Maryland in 1661 after the institution of the enslavement of Africans on American soil. This means that interracial marriage was a common-law liberty that can only be overturned by legislation. The Maryland statute, for example, “prohibited the intermarriage of white women and negro slaves under the penalty of slavery to the white woman and all her issue,” eventually expanding the penalties and including the prohibition of interracial cohabitation. Nevertheless, seven states (out of 13) at the time of the American founding had such laws, though three repealed them well before the mid-20th century when Perez and Loving were decided: Massachusetts, 1843; Rhode Island, 1881; Pennsylvania, 1780. In fact, of the 50 current states, 13 have never had anti-miscegenation laws, and when Loving was decided in 1967, only 16 of the 50 states still had such laws.

It should also be noted that when anti-miscegenation laws were on the books they were widely diverse in whom they covered and what groups were forbidden from intermarrying. For example, Irving Tragen writes in his 1944 California Law Review article:

Although originally the statutes were directed wholly against Negro-Caucasion unions, the scope of the legislation now extends to interdictions against marriage between white men and Mongolians, Malayans, mulatto, or even American Indians. The ban on marriages between negroes and whites is still the most common one: the unions are banned throughout the South, the Southeast, and the West except for Washington and New Mexico; the interdictions are non-existent in New England, and the Middle Atlantic States outside of Delaware, and in the North Central States except Indiana; and, in the “great farm belt,” typical is the situation of states like Nebraska and Iowa living side by side one with a miscegenation statute, and one without. Mongolian-Caucasian marriages are prohibited in fourteen states, mostly in the West but a few in the South. Some five western states prohibit Malay-white marriages. South Dakota especially names Koreans in its miscegenation statute. Five states, scattered throughout the South and West, place Indian-white marriages in their prohibited classes. In all the states which have miscegenation statutes, except California, these marriages are not only void’ but are subject to criminal penalties. The penalties fall upon all persons, white and “colored” alike, either for attempting such a marriage or, as the attempted marriage is void, for engaging in illegal extramarital relations.

The overwhelming consensus among scholars is that the reason for these laws was to enforce racial purity, an idea that begins its cultural ascendancy with the commencement of race-based slavery of Africans in early 17th-century America and eventually receives the imprimatur of “science” when the eugenics movement comes of age in the late 19th and early 20th centuries. In Loving, for example, the statue overturned, SB 219, The Racial Integrity Act of 1924, was the product of the eugenics movement. On the same day that SB 219 was passed, Virginia also passed the Eugenical Sterilization Act (SB 281), a law the allowed the state to involuntarily sterilize, among others, the mentally unfit. In the case of Buck v. Bell (1927), the Supreme Court upheld the constitutionality of Virginia’s forced sterilization of Carrie Buck under that statute. In some of the most memorable and chilling words ever penned by a Supreme Court justice, Oliver Wendell Holmes wrote, “Three generations of imbeciles are enough.” The Racial Integrity Act and The Eugenical Sterilization Act were of a piece, both legislative accomplishments of the eugenics movement and its goal of racial purity.

Anti-miscegenation laws, therefore, were attempts to eradicate the legal status of real marriages by injecting a condition—sameness of race—that had no precedent in common law. For in the common law, a necessary condition for a legitimate marriage was male-female complementarity, a condition on which race has no bearing.

It is clear then that the miscegenation/same-sex analogy does not work.

Read it all here.

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