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.”[ref] Irving G. Tragen, “Statutory Prohibitions against Interracial Marriage,” California Law Review32.3 (Sep., 1944): 269.[/ref] 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[ref] “There was no rule at common law in England nor has any statute been passed in England banning interracial marriages.” (Ibid., n. 2, citing Alexander Wood Renton and George Grenville Phillimore, The Comparative Law of Marriage and Divorce [London: Sweet & Maxwell, 1910], 142).[/ref]), 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,”[ref] Ibid., 270 n. 3, citing Edward Byron Reuter, Race Mixture: Studies in Intermarriage and Miscegenation (New York: Whittlesey House, 1931), 80.[/ref] 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.[ref] Brief amici curiae of African-American Pastors in California in Support of Respondents, In Re: Marriage Cases, California Supreme Court (2007), 13 available at http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/African-American_Pastors_in_CA_Amicus_Curiae_Brief.pdf[/ref]
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.[ref] Tragen, “Statutory Prohibitions against Interracial Marriage,” 270-271 (notes omitted).[/ref]
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.[ref] See Daniel J. Kevles, In the Name of Eugenics (Cambridge, MA: Harvard University, 1985); Paul A. Lombardo, “Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia,” U.C. Davis Law Review 21 (1987-1988): 421-452; Paul A. Lombardo, “Eugenics Laws Against Race Mixing,” Image Archive of the American Eugenics Movement, available at http://www.eugenicsarchive.org/html/eugenics/essay7text.html; and Peggy Pascoe, “Miscegenation Law, Court Cases, and Ideologies of `Race’ in Twentieth-Century America,” Journal of American History 83.1 (Jun., 1996): 44-69.[/ref] In Loving, for example, the statue overturned, SB 219, The Racial Integrity Act of 1924, was the product of the eugenics movement.[ref] Kevles, In the Name of Eugenics, 110.[/ref] 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.[ref]Paul A. Lombardo, “Three Generations, No Imbeciles: New Light on Buck v. Bell,” N.Y.U. Law Review 60 (1985): 30-63.[/ref] 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.[ref] See note 6.[/ref]
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. For if the purpose of anti-miscegenation laws was racial purity, such a purpose only makes sense if people of different races have the ability by nature to marry each other. And given the fact that such marriages were a common law liberty, the anti-miscegenation laws presuppose this truth. But opponents of same-sex marriage ground their viewpoint in precisely the opposite belief: people of the same gender do not have the ability by nature to marry each other since gender complementarity is a necessary condition for marriage. Supporters of anti-miscegenation laws believed in their cause precisely because they understood that when male and female are joined in matrimony they may beget racially-mixed progeny, and these children, along with their parents, will participate in civil society and influence its cultural trajectory.
In other words, the fact that a man and a woman from different races were biologically and metaphysically capable of marrying each other, building families, and living among the general population is precisely why the race purists wanted to forbid such unions by the force of law. And because this view of marriage and its gender-complementary nature was firmly in place and the only understanding found in common law, the Supreme Court in Loving knew that racial identity was not relevant to what marriage requires of its two opposite-gender members. By injecting race into the equation, anti-miscegenation supporters were very much like contemporary same-sex marriage proponents, for in both cases they introduced a criterion other than male-female complementarity in order to promote the goals of a utopian social movement: race purity or sexual egalitarianism.
This is why, in both cases, the advocates require state coercion to enforce their goals. Without the state’s cooperation and enforcement, there would have been no anti-miscegenation laws and there would be no same-sex marriage. The reason for this, writes libertarian economist Jennifer Roback Morse, is that “marriage between men and women is a pre-political, naturally emerging social institution. Men and women come together to create children, independently of any government.” Hence, this explains its standing as an uncontroversial common law liberty. “By contrast,” Morse goes on to write, “same-sex ‘marriage’ is completely a creation of the state. Same-sex couples cannot have children. Someone must give them a child or at least half the genetic material to create a child. The state must detach the parental rights of the opposite-sex parent and then attach those rights to the second parent of the same-sex couple.”[ref] Jennifer Roback Morse, “Same-Sex ‘Marriage’ and the Persecution of Civil Society,” National Catholic Register (3 June 2008), available at http://www.ncregister.com/site/article/15099[/ref]
I am not suggesting, of course, that there are not other arguments for same-sex marriage other than the anti-miscegenation analogy. There are plenty of them, some of which are serious challenges to the common-law understanding of marriage as requiring gender complementarity. What I am saying is that once one understands the purpose of the anti-miscegenation laws and their relation to the common law understanding of marriage, the analogy not only breaks down, but may actually work against the case for same-sex marriage.