Friday, May 21, 2010

Interracial Marriage and Same-Sex Marriage: Why the Analogy Fails

That is the title of an essay I published this morning on the website Public Discourse: Ethics, Law and the Common Good (the online publication of the Witherspoon Institute).  Here is how it begins:
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.
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1 comment:

Agellius said...

Wow, excellent. Well done.