The Miscegenation Analogy
An Analysis of Anti-Miscegenation and Same Sex Marriage Bans
Sean Paul McClintock
B.A., Colorado State University, 1998
A thesis submitted to the
University of Colorado Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
This thesis for the Master of Arts
Sean Paul McClintock
has been approved
McClintock, Sean Paul (MA, Political Science, University of Colorado at Denver)
The Miscegenation Analogy
An Analysis of Anti-Miscegenation and Same Sex Marriage Bans
Thesis directed by Professor Michael S. Cummings
This paper examines the Miscegenation Analogy, a legal and political strategy
linking interracial or anti-miscegenation marriage bans with marriage bans
between gays and lesbians. The logic of the analogy featured prominently in the
arguments for same-sex marriage in the California case of Perry v.
Schwarzeneggger. Peggy Pascoe, in her article Why the Ugly Rhetoric Against Gay
Marriage is Familiar to this Historian of Miscegenation, suggested four common
elements between same-sex marriage bans and interracial marriage bans. These
elements include: 1. marriage bans based on moral reasons, 2. criminalization of the
sexual aspect of the marriage, 3. the use of equal-application theory to deny couples
the right to marry, and 4. transformation of discrimination from overt to more subtle
methods, especially involving stereotyped images of families, women, and children.
The paper surveys these elements in legal history, comparing same-sex and
interracial marriage bans. Same-sex and interracial marriage bans both enforce
moral codes and criminalize acts in ways the Supreme Court has struck down in
Lawrence v. Texas. Both types of marriage bans show equal-application reasoning.
Interracial marriage was seen as "miscegenation" instead of marriage, while "gay
marriage" today is separated from traditional marriage. Interracial and same-sex
marriage discrimination have both transformed over time, from moral reasons to
pseudo-scientific reasoning including "black blood" in interracial cases to fears of
conversion in same-sex cases. While the common elements listed above give validity
to the analogy, the analogy has several important flaws. Same-sex marriage bans
have a much shorter legal history than interracial bans. The analogy itself is limiting,
basing rights on white, heterosexual marriage and on the toleration by the majority.
The elements Pascoe proposes are somewhat useful in determining whether
protection should be extended to other minorities. However, the analogy is most
useful as a cautionary tale when the majority takes rights away from other groups.
This abstract accurately represents the content of the candidate's thesis. I recommend
Michael S. Cummings
I dedicate this thesis to my parents, who taught me to think critically and
analytically. I would like to thank them for their love, patience, humor, and support
while completing my degree.
My thanks to my advisor, Michael S. Cummings, for his support and patience while I
was completing my thesis. I would like to thank all the members of my committee
for their participation and suggestions.
TABLE OF CONTENTS
History and Importance of the Analogy...................13
2. MARRIAGE BANS BASED ON MORAL REASONS...................17
Religious and Natural Order Justifications..............18
History of Congressional Discrimination.................20
Pace v. Alabama and Bowers v. Hardwick..................22
The Lawrence Decision...................................24
3. CRIMINALIZATION OF THE SEXUAL ASPECT OF THE
Void Ab Initio..........................................27
The McLaughlin Case.....................................27
Evasion and Domiciliary States..........................29
The Lawrence Decision and Sodomy Laws...................32
4. EQUAL-APPLICATION THEORY................................34
Logic Behind the Theory.................................35
McLaughlin and Loving...................................36
Baker v. Nelson and Singer v. Hara......................38
Equal Application and Facial Discrimination Today
5. EVOLUTION OF DISCRIMINATION FROM OVERT TO
MORE SUBTLE METHODS, ESPECIALLY STEREOTYPED
IMAGES OF FAMILIES, WOMEN, AND CHILDREN........................42
Black Discrimination by Pseudo-Science......................42
5. CRITICISMS OF THE ANALOGY....................................49
Rights Dependent on Toleration of the Majority...............50
White, Heterosexual Rights as the Basis for Equal Protection.51
Limiting Application to Only Marriage........................51
Incorporation into Existing Equal Protection Law............52
Application of the Analogy to Other Minorities..............56
In January 2010, the case of Perry v. Schwarzenegger went to trial,
challenging the constitutionality of Proposition 8, banning gay marriage in
California. Defining a civil marriage as only between a man and a woman, the
Proposition banned gay and lesbian residents from civil marriage while still
permitting domestic partnerships. Attorneys Ted Olson and David Boies filed suit in
May of 2009 in U.S. District Court representing two same-sex couples who had been
denied a marriage license earlier that month.1 The suit contests the marriage ban
under the Equal Protection and Due Process clauses of the Fourteenth Amendment
of the U.S. Constitution, for forbidding the same officially sanctioned family
relationship with their loved ones as heterosexual individuals.2
Boies and Olson began their suit specifically referring to Loving v. Virginia,
the landmark civil rights case which declared anti-miscegenation statutes illegal.
They also referred to the California Supreme Courts decision in In re Marriage
Cases, in which the majority declared sexual orientation a suspect classification on a
par with racial classifications, requiring strict scrutiny by the courts when deciding
the validity of discriminatory legislation.3
1 Perry v. Schwarzengger Complaint, 3.
Boies and Olson are the latest to invoke the so-called Miscegenation
Analogy, a legal and political strategy linking interracial or anti-miscegenation
marriage bans with marriage bans between gays and lesbians. The lawyers in Perry
hoped the analogy would sway the Supreme Court to have homosexuals declared a
suspect class under the Equal Protection clause. This would hold all state and
federal marriage bans to the same strict scrutiny as racial discrimination.
If the miscegenation analogy is accepted by the U.S. Supreme Court in Perry,
the Court will have put same-sex marriage rights on a par with racial marriage rights.
However, what about the next minority that wishes to marry? As Justice Scalia put it
in his dissent in Lawrence, the case many scholars consider a stepping stone to the
State laws against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication, bestiality, and
obscenity are likewise sustainable only in light of Bowers' validation
of laws based on moral choices. Every single one of these laws is
called into question by [the Lawrence] decision; the Court makes no
effort to cabin the scope of its decision to exclude them from its
Is the analogy a useful shorthand for deciding which of these minorities
should be allowed to marry and which should not? Is it worth examining an analogy
at all? Sharon Rush has analyzed the analogy and offers the following insights:
It is common for legal decision makers to invoke the use of analogies
in analyzing how cases are both similar to and different from each
other. In fact, this method of legal reasoning dominates American
4 Lawrence, 21.
jurisprudence. As a method of legal reasoning, analogical reasoning
can be characterized as offering neither the worst nor the best
alternative method from among many. One limitation of analogical
reasoning is that it does not offer general principles that allow legal
decision makers to identify relevant similarities and differences
between cases. As Professor Cass Sunstein suggests, perhaps as a
bottom-up approach to legal reasoning, analogical reasoning at best
provides low-level principles [However], Sunstein notes, "Without
analogies, relevant principles often cannot be described in advance
except at an uninformatively high and crude level of generality."
Comparing one situation with another and looking for ways in which
they are both similar and different can be a useful way for legal
decision makers to identify significant factors that informed the first
situation and are relevant to deciding the subsequent one. A focus on
the ground level of particulars in legal reasoning can be valuable in
developing an overarching general theory that will be more useful in
the long run.5
Rush argues the analogy should be examined at the case level and proposes
passing as an element of the analogy. However, passing alone is rather limited in
scope compared to the elements Pascoe outlines in her paper Why the Ugly
Rhetoric Against Gay Marriage is Familiar to this Historian of Miscegenation.
From Pascoe, I propose four elements that I believe are common to both same-sex
marriage bans and interracial marriage bans:
1. Marriage bans based on moral reasons
2. Criminalization of the sexual aspect of the marriage
3. The use of equal-application theory to deny couples the right to marry
5 Rush, 7.
4. A transformation of discrimination from overt to more subtle methods,
especially involving coded language and stereotyped images of families,
women, and children
I focus on significant cases in the legal struggle over same-sex-marriage
because they not only reveal structural similarities of expressed state interests in
regulating marriage, but also show some significant developmental institutional
differences 6 as professor Julie Novkov stated in in her paper "The
Miscegenation/Same-Sex Marriage Analogy: What Can We Learn from Legal
History?", which I draw from here.
History and Importance of the Analogy
The miscegenation analogy first appeared in the Supreme Court in the
dissents of Blackmun and Stevens in Bowers v. Hardwick in which the Court ruled
on the constitutionality of state sodomy laws. The Supreme Court overturned
Bowers in Lawrence v. Texas, decriminalizing sodomy laws but avoiding the subject
of same-sex marriage. The lawyers in Perry are hoping same-sex marriage bans are
declared unconstitutional following the decriminalization of sodomy laws in
Lawrence, just as interracial marriage bans were declared unconstitutional in Loving
v. Virginia following decriminalization of anti-miscegenation in McLaughlin v.
6 Julie Novkov, "The Miscegenation/Same-Sex Marriage Analogy," 347.
The analogy is controversial today among scholars, lawyers, and the African
American community. Scholars fear comparing two movements with two very
different views regarding marriage in two very different times. Constitutional
scholars see applying the analogy to same-sex-marriages as an unnecessary
expansion of the strict-scrutiny rules. Conservatives fear the analogy will be used to
justify judicial activism, rulings based more on personal and political beliefs than on
existing law. They believe the Court will overreach its authority into matters
traditionally left to states. A large proportion of the Black community is opposed to
comparing the same-sex marriage movement today with the civil rights movement of
the 1960s. They believe such a comparison cheapens their struggles as well as the
depth of the prejudice they endured in the past and today.
The Supreme Courts current Equal Protection yardstick applies to an
insular group with immutable, irrelevant characteristics with a history of
stigmatization who remain subject to pervasive discrimination.7 This yardstick has
slowed extending Equal Protection to other groups. It has also effectively relegated
sexual and sexual-orientation discrimination to a lower tier than racial
In 1988, sixteen years before Lawrence v. Texas, Andrew Koppelman,
professor of law and political science at Northwestern University, argued that the
7 "Constitutional Status of Sexual Orientation," 1299-1300.
is an even more powerful tool for constitutional analysis than
(originally) recognized: The Courts miscegenation precedent,
together with its sex discrimination jurisprudence, are sufficient to
invalidate the sodomy laws.8
Koppelman concluded: If the Loving analogy is taken seriously, it follows
that the equal protection clause forbids the denial of marriage licenses to gay
Peggy Pascoe stated that supporters of same-sex marriage bans today echo
the same arguments used against interracial marriage bans in the past. She believes
that interracial marriages and same-sex marriage are seen as contrary to God's will
and unnatural. Both types of marriage bans involve criminalization of the sexual
aspect of the relationship. All interracial relationships (even longstanding, deeply
committed ones) [were labeled] as illicit sex rather than marriage...10 Supporters of
both types of marriage bans evade the Equal Protection clause by using the equal-
application theory. Miscegenation laws, the theory argues, were fair because they
punished both the black and white partners in an interracial marriage "equally," just
as banning same-sex marriage is fair because it bans male couples and female
In chapter 2 I will describe how marriage bans for both interracial and same-
sex marriages are based on moral reasons and how justifications for marriage bans
took the form of religious and natural order reasons. I compare congressional
8 Koppelman, "The Miscegenation Analogy: Sodomy Law as Sex Discrimination," 149.
9 Koppelman, 149.
10 Pascoe, 8.
statements regarding anti-miscegenation laws after the Civil War to those when
DOMA was debated in 1993. Comparisons between the two major Supreme Court
cases regarding interracial and same-sex marriage bans are also described, and how
the Lawrence decision has evolved from both.
In Chapter 3 I describe how interracial and same-sex marriages are both null
and void legally, and elaborate upon the decriminalization of interracial sexual bans
in McLaughlin. Similiarities in evasion laws, effects on voting rights, and categorical
inequality for interracial and sex marriages are also discussed. Finally I compare
McLaughlin and Lawrence, the decriminalization of sodomy laws and its link to gay
marriage in the analogy.
Chapter 4 outlines the history and logic of the Equal Application theory and
similiarities between its use in Pace and Bowers, and its overturning in Loving and
Chapter 5 discusses common themes in interracial and same-sex
discrimination, highlighting similarities and differences between amalgamation for
interracial marriage and conversion for same-sex marriage.
Chapter 6 discusses criticisms of the analogy and its use as a warning sign for
failing to extend equal protection to other minorities.
MARRIAGE BANS BASED ON MORAL REASONS
Koppelman claims proponents of interracial marriage and same-sex marriage
bans used moral justifications for the same reason: to maintain a caste system with
white males at the top.
Beyond the immediate harm they inflict upon their victims, their
purpose is to support a regime of caste that locks some people into
inferior social positions at birth. Miscegenation laws discriminated on
the basis of race, and they did so in order to maintain white
supremacy. Similarly, sodomy laws discriminate on the basis of sex.
For example, permitting men, but not women, to have sex with
women in order to impose traditional sex roles. The Court has
deemed this purpose impermissible in other contexts because it
perpetuates the subordination of women. The same concern applies
with special force to the sodomy laws, because their function is to
maintain the polarities of gender on which the subordination of
Prior to the Civil War, White supremacy was maintained, among other
things, by the slavery system. After the Civil War, slavery was no longer available to
determine status. White supremacy became tied more specifically to race than to
ownership. Privileges and rights were given only to whites. Whiteness and its
privileges were threatened by individuals whose race could not be easily determined.
Especially dangerous were miscegenous families, who blurred the lines between
white and black and threatened amalgamation of the races. The maintenance of a
caste with whites at the top depended on the ability to define who was white and
11 Koppelman, 147.
who was black. The struggle against miscegenation was ... a struggle to establish
and maintain whiteness as a separate and impermeable racial category that all
observers could easily identify.
Religious and Natural Order Justifications
Peggy Pascoe argues that judges justified anti-miscegenation laws based
upon moral reasons. Moral reasons were either religious-based, claiming that
interracial marriage was contrary to Gods will, or natural-order based, claiming that
interracial marriage was somehow unnatural.
In 1869, the Georgia Supreme Court in Scott v. State ruled that:
[MJoral or social equality between the different races...does not in
fact exist, and never can. The God of nature made it otherwise, and no
human law can produce it, and no human tribunal can enforce it.
There are gradations and classes throughout the universe. From the
tallest archangel in Heaven, down to the meanest reptile on earth,
moral and social inequalities exist, and must continue to exist
throughout all eternity.12 13
The Supreme Court of Virginia declared miscegenous marriages against the
laws of God and nature when it invalidated a miscegenous marriage in 1878:
"The purity of public morals," the court declared, "the moral and
physical development of both races... .require that they should be kept
distinct and separate... that connections and alliances so unnatural
that God and nature seem to forbid them, should be prohibited by
positive law, and be subject to no evasion."14
12 Novkov, Julie, "Racial Constructions," 226.
13 Scott v. State of Georgia, 5.
14 Koppelman, Notes, 157.
Religious justifications, however, continued to be used in state courts
for discrimination up to the very end of anti-miscegenation laws. The trial
judge in the Loving case stated:
Almighty God created the races white, black, yellow, Malay and red,
and he placed them on separate continents. And but for the
interference with his arrangement there would be no cause for such
marriages. The fact that he separated the races shows that he did not
intend for the races to mix. 15
In the early 1900s, natural-order justifications for anti-miscegenation laws
began to replace religious ones. Courts in Alabama prosecuting anti-miscegenation
acts attempted to define blackness using pseudo-scientific anthropological methods.
Evidence previously had to show black ancestry within the last three generations.
Natural-law justifications eventually metamorphosed into ones based on alleged
harm to the sanctity of marriage. For example, adulterous wives could be prosecuted
for miscegenation, but prostitutes could not, with some cases blurring the line
between the two.16
Shortly after Brown v. Board, Southern segregationists turned to social
science to support racist claims.17 Many scientifically minded Northerners were less
willing to accept a simple religious or moral justification to discriminate against
blacks. Statistics, especially marriage rates and illegitimacy rates, were used to show
Black moral inferiority. ... ne characteristic found to be more typical of the
15 Grossman, 1.
16 Novkov, Julie, "Racial Constructions," 234-242.
17 Walker, 406.
Negro than of the white is high sexual indulgence, larger sphere of permissive sexual
relations,... and high rate of illegitimacy.18 To gather these statistics, Southern
segregationists required couples to obtain a state marriage license. To obtain the
license, original birth certificates and medical certificates had to be presented.19 If
the last name of the father did not match that of the mother, the child could be
determined to be illegitimate. This statistic was kept by the counties and used to
prove Black immorality.
History of Congressional Discrimination
Congress also justified discrimination using religious and natural reasons.
Senator James Doolittle of Wisconsin made a speech in 1869 stating, "It is the fiat of
the Almighty which is stamped upon this very idea of forcing an amalgamation of
the races against nature and against the laws of God."
During the Congressional debates on the Fourteenth Amendment, Democrats
continually used amalgamation of the races as a fear tactic, showing a propensity
for injecting the question of miscegenation into every racial discussion, no matter
how irrelevant it might be. Congressman Glenn Scofield, a Pennsylvania
Republican, accused the Democrats of using amalgamation at every opportunity to
alarm even the most ignorant. Congressman John Fransworth, a Illinois Radical
Republican, refers to amalgamation as unnatural relations. Several days later,
18 Walker, 408.
19 Walker, 410.
Senator Garrett Davis of Kentucky accused the Massachusetts Radicals of
promoting miscegenation in the South in order to produce degeneracy.20
In January 1868, New York Republican Congressman Hamilton Ward
accused the President and Democrats of appealing to the lowest prejudices of our
nature ..." while conceding all the gentleman claims of the evil effects of
amalgamation." Tennessee Democrat Congressman John D. Atkins, in a speech on
the Amnesty Bill Amendment in 1870, supported anti-miscegenation laws because
"sound public policy and the well-being of both races forbid the commingling of the
blood of totally distinct races."21 22
Hawaiis Supreme Court in Baehr v. Levin ruled that denying marriage to
same-sex couples violated the states Equal Protection guarantee. Although this
ruling was soon rendered legally moot by an amendment to the state constitution
passed the next year, moral conservatives in Congress quickly passed the Defense of
Marriage Act to prevent any expansion of gay marriage into other states.
The House Report accompanying the bill specifically listed the governmental
interests served by DOMA: "(i) defending and nurturing the institution of traditional,
heterosexual marriage; [and] (2) defending traditional notions of morality. As the
20 Avins, 9.
22 "Litigating the Defense of Marriage Act," 2696-7.
Harvard Law Review points out, such morality is animosity with a nicer name.23
The House Report argues:
Civil laws that permit only heterosexual marriage reflect and honor a
collective moral judgment about human sexuality. This judgment
entails both moral disapproval of homosexuality, and a moral
conviction that heterosexuality better comports with traditional
(especially Judeo-Christian) morality.... It is both inevitable and
entirely appropriate that the law should reflect such moral
Natural order and religious justifications abounded in the Congressional
debates over DOMA.
84 senators who voted for the bill [stated] that homosexuality is
wrong. They characterized it as "immoral," "aberrant
behavior... based on perversion... [and] lust," "depraved,"
"unnatural," "an attack upon God's principles,' and "inherently wrong
and harmful to individuals, families, and societies...".25
Promiscuity arguments also returned in the DOMA debates. Another
[Congressman] claimed that "there are studies to say that over 43 percent of all
people who profess homosexuality have greater than 500 partners."26
Pace v. Alabama and Bowers v. Hardwick
While lower courts justified discrimination using plain religious
justifications, the Supreme Court did not when it decided the seminal case on
anti-miscegenation laws, Pace v. Alabama. In Pace, the Court ruled instead
on Equal Protection grounds, establishing the principle of Equal Application
23 Ibid, 2697.
24 Ibid, 2697.
25 Ibid., 2701.
26 Ibid., 2702.
that I will discuss later. Religious justifications and Equal Application theory
involved similar suspensions of logic, however. As religious justifications
for discrimination perverted the spirit of Christian fellowship, so did Equal
Application theory pervert the Equal Protection clause. The Supreme Court
chose to limit equal protection to equal application between races, instead of
equal application between individuals as originally stated in the Clause.
Bowers v. Hardwick became for gay rights what Pace was for
interracial rights. The Supreme Court's reasoning in Bowers was based on a
morality argument against gays and lesbians. Bowers came to represent the
concept that moral reasons were sufficient to deny gays and lesbians equal
protection. Justice White in Bowers asserted the now infamous statement:
"Proscriptions against [sodomy] have ancient roots."27
It has been argued that Bowers was a case ruled not by the moral judgment of
the American people but by the personal predilections of the majority deciding the
case.28 The Court made a number of legal errors. In Bowers, the Court ignored the
original legal question brought before it, which was to determine the constitutional
standard of review. The majority overreached their authority, ruling instead on the
constitutionality of the Georgia sodomy law. The Court ruled on the fundamental
rights of homosexuals to sodomy, while conveniently ignoring heterosexual
sodomy. Finally, the Court reached a curiously parochial conclusion that no
connection between family, marriage, or procreation on the one hand and
homosexual activity has ever been demonstrated...29
Whites assertion in Bowers that the law is based on moral beliefs
remained paramount for the seven years after Bowers. It was not effectively
challenged until the Baehr v. Lewin case in Hawaii. It has become an
example of a classic judicial blunder akin to Pace and Plessys separate but
equal. White rejected Blackmuns analogy with Loving. In so doing, he
conveniently ignored the parallel of traditional condemnations of sodomy
with historical slavery, whose ancient roots go back to 8000 BC.30
Supreme Court rulings began to turn away from the Bowers ruling in 1996
with Romer v. Evans. The Court returned to the principle laid down in United States
Department of Agriculture v. Moreno, which held it unconstitutional under the Equal
Protection clause to single out specific groups, in this case,hippie communes.
If the constitutional conception of'equal protection of the laws' means
anything, it must at the very least mean that a bare congressional
desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest.31
The Lawrence Decision
Bernard Harcourt, Professor of Law at the University of Chicago,
stated about the Lawrence decision:
29 Ibid, 650-653.
30 Thomas, 25.
31 "Litigating the Defense of Marriage Act," 2696.
For the first time in the history of American criminal law, the United
States Supreme Court has declared that a supermajoritarian moral
belief does not necessarily provide a rational basis for criminalizing
conventionally deviant conduct. The Court's ruling is the coup de
grace to legal moralism ... Henceforth or at least until further notice
- majoritarian morality no longer automatically trumps liberal
argument... in defining the reasonable and permissible contours of
the penal code. ... Asa matter of federal due process, courts
reviewing penal legislation must now deploy some other principle
[emphasis his] to distinguish between permissible and impermissible
majoritarian moral opprobrium.32
In Lawrence, Justice Kennedy embraces the principle outlined in Planned
Parenthood v. Casey: "At the heart of liberty is the right to define one's own concept
of existence, of meaning, of the universe, and of the mystery of human life." Justice
Kennedy states in Lawrence:
"[pjersons in a homosexual relationship may seek autonomy for these
purposes [of defining 'one's own concept of existence, of meaning, of the
universe, and the mystery of human life'], just as heterosexual persons do."
Homosexuals are persons too, and persons first: "[p]ersons in a homosexual
There are several dangers in the Lawrence ruling: It seems to legitimize only
homosexual relationships that are similar to heterosexual marriage. It does not
endorse homosexual marriage, the Court having carefully avoided that issue. It does
not even endorse homosexuality, merely decriminalizing the act of sodomy under
privacy grounds. As Harcourt puts it,"the symbolic message of Lawrence is not
32 Harcourt, 503.
33 Spindelman, 1625.
'We're on board with homosexuals, it sounds more ofWe're against surveillance in
adult bedrooms."34 35
States today have been uncomfortable basing anti-gay discrimination
solely on the basis of moral principles. Opposition to government
interference in and regulation of private acts remains a basic part of liberal
ideology. States began to attempt to justify interference on other grounds,
especially protection of children, which I will go into more detail later.
If the Supreme Court now forbids the use of a moral principle in determining
the criminalization of conduct, and removes the onus of sodomy as a criminal
offense from gays and lesbians, why analyze moral justifications for discrimination?
For one thing, the Lawrence ruling is new and still dependent on the goodwill of
judges. As I said, states have also begun looking for reasons other than morality to
prevent gay marriage. Finally, there Justice Scalias slippery slope argument, that
moral beliefs are the only reason we still outlaw incest, polygamy, and bestiality. I
will analyze this argument further in the conclusion. Scalia's objections emphasize
why the moral beliefs of the majority still remain highly relevant for gays and
34 Harcourt, 511.
35 Keane, 520.
CRIMINALIZATION OF THE SEXUAL ASPECT OF THE MARRIAGE
Void Ab Initio
Both interracial marriages and same-sex marriages have a history of being
simply void ab initio, with the law treating them as if they had never existed.36
Because the marriages legally did not occur, miscegenous couples could be charged
with a felony for violating the marriage ban, with a misdemeanor for fornication if
they claimed they were not married, or with a misdemeanor for adultery if there was
an allegation that one of the participants was still legally married. The marriage ban
thus had the practical effect of increasing the severity of the offense, while not allow
the couple to escape criminal charges under the umbrella of marriage.37 Criminal
penalties for same-sex sexual acts remained in force until Lawrence. Advocates of
the analogy argue same-sex rights remain in the same gray area today between
decriminalization and marriage as interracial rights were between McLaughlin v.
Florida and Loving.
The McLaughlin Case
The Supreme Court in McLaughlin decriminalized interracial relationships
but did not legalize interracial marriage. Like Lawrence, the Court specifically
avoided addressing marriage bans. Dewey McLaughlin and Connie Hoffman were
charged with violating section 798.05 of the Florida Statutes, which criminalized a
36 Browning, 31.
37 Novkov, "Racial Constructions," 232.
range of sexual behaviors categorized as "Adultery and Fornication." Section 5 made
it a crime for "[a]ny negro man and white woman, or any white man and negro
woman, who are not married to each other" to "habitually live in and occupy in the
nighttime the same room."38 Although the couple claimed to be married, it was only
by common law and they could not produce a marriage license. Defense lawyers
attempted to make the McLaughlin case about interracial marriage instead of co-
habitation but were hampered by this legal snag. Ruling only on interracial
cohabitation and sexual crimes, the Court agreed that the state may regulate illicit
sex such as adultery. But it ruled there is nothing particularly or uniquely illicit
about interracial sex that justified its heightened criminal penalties.39
McLaughlin allowed regulation of illicit sex as long as the law did not
specifically target interracial couples. Marriage bans themselves were finally ruled
upon in Loving. Both Loving and McLaughlin repudiated Pace as a limited view of
Equal Protection, and went on to declare Virginias marriage ban in violation of the
Due Process clause. The Court in Loving declared that marriage was a fundamental
right, one that can not be criminalized or infringed upon without a compelling
38 Dubler, 1165.
39 Ibid., 1175.
40 Koppelman, 155.
Evasion and Domiciliary States
Married couples assume that they remain married when they cross state lines.
States can ignore marriage contracts made in other states if those marriages violate
an important public policy of the enforcing state. Before Loving, an interracial
couple who lived in a state forbidding interracial marriage could go to another state
condoning it, marry, then return to their home state. If miscegenation was
considered an important public policy to the enforcing state, the interracial couple
would face criminal charges in their domiciliary state for cohabiting illegally, and
the marriage would have no legal standing 41 42
By 1950,29 states had passed interracial marriage bans. Six states had the
prohibitions written into their state constitutions. 18 of the states had statutes dealing
with marriage evasion, the act of getting married in another state that permitted
interracial marriages and then returning to a state that did not. Six states allowed
their anti-miscegenation laws to be evaded by one who has carfare, thus keeping
anti-miscegenation laws strictly for moral statements without legal effect.
In 1993, Hawaii became the first state to allow same-sex marriage. The
Hawaii Supreme Court held that denying marriage licenses to same-sex couples
constituted gender discrimination in violation of the equal protection provision of
Hawaiis constitution. Although voters approved a state constitutional amendment
nullifying the decision, after this case in Hawaii the Lambda Legal Defense and
41 Browning, 31; Ruskay-Kidd, 1438.
42 Browning, 37.
Education Fund began a campaign to extend same-sex marriage rights nationwide.
Congress responded by passing the Defense of Marriage Act.43
DOMA was unique in being a national, federal response to what had
been a single state issue. DOMA has two parts: Section 2 holds no state has
to honor any public act, record, or judicial proceeding of any other State
regarding a relationship between two people of the same sex that is treated as
a marriage. Section 3 defines marriage for any Act of Congress or the Federal
Government as only a legal union between one man and one woman.44
Sodomy laws and miscegenation laws, other than the obvious criminal
penalties imposed, also have a civil effect. This was called the categorical inequality
principle by Nan Hunter, professor of Law at Brooklyn Law School,: [BJecause gay
people presumptively violated criminal prohibitions against sodomy, the government
could properly deny them employment or custody or visitation rights with their
children.45 Social stigma in this case could be as damaging as criminal prosecution,
because gay couples could be denied housing and employment merely by being
outed even if they were not formally convicted of a crime.46
43 "Litigating the Defense of Marriage Act," 2685.
44 Ruskay-Kidd, 1437.
45 Arroyo, 1531.
46 Franke, 1405.
Miscegenation laws had a more duplicitous use. Violation of anti-
miscegenation laws was a criminal offense. Criminal offenses could be used to deny
the right to vote. Mississippi adopted into its constitution an amendment requiring
voters to be of good character, with good character determined by the county
registrar.47 Moral crimes such as common-law marriage and giving birth to an
illegitimate child could result in disenfranchisement. One senator attempted to curb
county registrars' power so that a man wont be deprived of the vote because [of] a
hostile registrar... If he thinks you look like an illegitimate child he saw recently, he
can strike you from the rolls for siring an illegitimate child.48 Other proposed
amendments would have struck from voter lists anyone with a misdemeanor.
Voting rights of homosexuals came under attack by ant-gay rights groups.
Voting rights for homosexuals came under fire in the early 1990s. Homosexual-
rights groups around the country were trying to pass anti-discrimination laws. Anti-
gay groups accused gays of trying to obtain special rights. Amendment 2 was an
unusual piece of legislation, barefacedly repealing any city ordinances banning
discrimination against gays and not allowing any branch of government to prevent
48 Walker, 419.
49 "Litigating the Defense of Marriage Act," 2696.
The Lawrence Decision and Sodomy Laws
While Baehr broke with Bowers on the issue of marriage, Amendment 2 in
Colorado broke with Bowers in terms of gay rights. Amendment 2 was passed in
1993. In the subsequent case Romer v. Evans, the Supreme Court stated that the
political rights of a minority could not be unduly burdened by the legal system to the
exclusion of all others. As Justice Stevens put it:
Even if, as the State contends, homosexuals can find protection in
laws and policies of general application, Amendment 2 goes well
beyond merely depriving them of special rights. It imposes a broad
disability upon those persons alone, forbidding them, but no others, to
seek specific legal protection from injuries caused by discrimination
in a wide range of public and private transactions.50
The Court held that Amendment 2 lack[ed] a rational relationship to
legitimate state interests" because it "seem[ed] inexplicable by anything but animus
toward the class it affect[ed]."51
The majority in Lawrence overruled Bowers on due-process grounds.
Lawrence decriminalized sodomy using wider reasoning than McLaughlin.
McLaughlin allowed the state to regulate illicit sexual conduct such as adultery as
long as interracial couples were not treated differently from White or Black couples.
Lawrence ruled consensual sexual intimacies are a fundamental right as part of a
51 Ibid., 2696.
Lawrence found the categorical inequality principle violated the right to
dignity, ruling that homosexuals "are entitled to respect for their private lives. The
State cannot demean their existence or control their destiny by making their private
sexual conduct a crime."
Even after Lawrence, courts still gave gay couples convicted of crimes more
severe punishments than straight couples convicted of the same crimes. In Kansas v.
Limon, two males, 14 and 18, engaged in consensual oral sex. The case would still
have been prosecutable had one of the participants been female because minors
regardless of sex cannot give consent. The statute created a special category for two
opposite-sex participants less than four years apart in age, a Romeo and Juliet
provision. Under that category, the 18-year old would have received 13 to 15
months in prison. Instead, the provision excluded same sex partners and he
received a sentence of 17 years and two months. Instead of arguing a morality claim
that would have been found unconstitutional under Lawrence, prosecutors used the
goal of shielding children from exposure to homosexuality. 52
52 Hunter, 1543.
The equal-application theory gained Supreme Court acceptance in 1883 with
Pace v. Alabama. Julie Novkov refers to Pace as an example of the law of
symmetry: because the punishment of blacks and whites was the same, the
declaration that interracial intimacy was a felony did not violate equal protection.53
History of the Theory
Republicans after the Civil War saw no inconsistency in granting former
slaves civil rights while simultaneously denying them the right to marry a person of
the White race. While debating the Freedmans Bureau bill, the Chairman of the
Senate Judiciary Committee argued that the bill would not violate the anti-
miscegenation laws of Indiana with an equal-application argument.
One of its objects is to secure the same civil rights and subject to the
same punish-ments persons of all races and colors. How does this
interfere with the law of Indiana preventing marriages between whites
and blacks? ... Does not the law make it just as much a crime for a
white man to marry a black woman as for a black woman to marry a
white man, and vice versa?... If the negro is denied the right to marry
a white person, the white person is equally denied the right to marry
the negro. I see no discrimination against either in this respect that
does not apply to both. Make the penalty the same on all classes of
people for the same offense, and then no one can complain.54
/Inti-miscegenation laws were constitutional from 1882 until 1964. The
Supreme Court in Pace reviewed two sections of the Code of Alabama. Section
53 Novkov, "The Miscegenation/Same-Sex Marriage Analogy," 5.
54 Avins, 1232.
4184 punishes the crime of adultery or fornication with a fine of at least one hundred
dollars and imprisonment or sentence to hard labor for not more than six months.
Section 4189 declares that if any white person and any negro... intermarry or live in
adultery or fornication with each other, each of them must, on conviction, be
imprisoned in the penitentiary or sentenced to hard labor for the county for not less
than two nor more than seven years.55
Tony Pace, a Negro, and Mary J. Cox, a white woman, were indicted and
convicted on charges of adultery and fornication, and each was sentenced to two
years imprisonment. The Supreme Court of Alabama affirmed, and the case was
brought before the Supreme Court on writ of error. Tony Pace's lawyer claimed
Section 4189 violated the equal protection clause of the Fourteenth Amendment by
sentencing an interracial couple to harsher punishment than a couple of the same
race for the same offense.
Logic Behind the Theory
In Pace the justices declared
The two sections of the code cited are entirely consistent The one
prescribes, generally, a punishment for an offence committed between
persons of different sexes; the other prescribes a punishment for an
offence which can only be committed where the two sexes are of
different races.... Indeed, the offence against which this latter section
is aimed cannot be committed without involving the persons of both
races in the same punishment. Whatever discrimination is made in the
punishment prescribed in the two sections is directed against the
offence designated and not against the person [emphasis mine] of any
55 Pace v. Alabama.
particular color or race. The punishment of each offending person,
whether white or black, is the same.56
The justices regarded adultery committed by an interracial couple as a
different crime from adultery by a same-race couple.. To the Court, the same-race
couple was violating adultery laws. The interracial couple was violating adultery
laws as well as anti-miscegenation laws prohibiting interracial intimacy, with anti-
miscegenation charges trumping adultery ones. The justices saw these as two
entirely different types of offenses, one maritally based and the other racially based.
McLaughlin and Loving
The Pace logic amounts to finding that there is no suspect classification done
by the Alabama statutes.57 McLaughlin disagreed because the two statutes require)
the proscription of the specified conduct when engaged in by a white person and a
Negro, but not otherwise.58 The Court here and in later cases found Pace's equal-
inconsistent with the text of the Equal Protection Clause, which states
that [n]o State shall... deny any person ... the equal protection of
the laws. 147 The use of the word person in the amendment has led
the Supreme Court to hold that the Fifth and Fourteenth
Amendments to the Constitution protect persons, not groups.59
The McLaughlin Court began to apply Shelley v. Kraemers famous
formulation reached 16 years prior:
56 Pace v. Alabama.
57 McLaughlin v. Florida.
59 Arroyo, 26.
The rights created by the first section of the Fourteenth Amendment
are, by its terms, guaranteed to the individual. The rights established
are personal rights. 29 It is, therefore, no answer to these petitioners
to say that the courts may also be induced to deny white persons
rights of ownership and occupancy on grounds of race or color. Equal
protection of the laws is not achieved through indiscriminate
imposition of inequalities.60
McLaughlin suffered from several deficiencies. It did not block state
regulation of adultery and fornication laws, but only blocked heightened
punishments for interracial couples. It would take Lawrence for the Court to rule on
state criminalization of certain types of illicit sex.
Koppelman states that the Loving court reached a milestone when it
discerned at last the purpose behind the equal-application theory: that of maintaining
There is patently no legitimate overriding purpose independent of
invidious racial discrimination which justifies this classification. 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. ... There can be no doubt that restricting the freedom to
marry solely because of racial classifications violates the central
meaning of the Equal Protection Clause.61
Koppelman argues that Loving and McLaughlin should be read more
generally. McLaughlin stands for the proposition [that}... if a statute
60 Shelley v. Kraemer, 15.
61 Loving, 6.
defines prohibited conduct by reference to a characteristic, then the statute is
not neutral with respect to that characteristic.62
In the case of same-sex marriage, courts again compare two couples, but now
a mirror image of those in Loving. Instead of an interracial couple and a couple of
the same race, the same-sex marriage analogy is between a heterosexual couple and
a same-sex couple.
Baker v. Nelson and Singer v. Hara
The Supreme Court in Baker v. Nelson and the state of Washington in Singer
v. Hara, rejected arguments that limiting marriage to different-sex couples was an
abridgement of equal protection and due process, and/or constituted unlawful sex
discrimination.63 The Singer and Baker courts repeated the same two mistakes in
logic that the Pace court did: the justices compared the rights of groups instead of
the rights of individuals, and the justices divided marriage into separate institutions.
Again, the courts in effect found there was no facial discrimination in the state
laws.64 In actuality, the court did not compare how the law affected one individual
when compared with another individual, but how the law affected the rights of
heterosexuals as a group against the rights of homosexuals as a group. As with Pace,
the ruling facially appears fair because the rights of homosexuals, to this mindset, do
not include a right to marriage. For the court, marriage by definition is heterosexual.
62 Koppelman, 151.
Because homosexual couples, by definition, do not have a right to marriage, they are
not disadvantaged by this ruling.
The separation of marriage into marriage and civil unions continues today in
the legal system as a kind of cognitive dissonance, taking the same actions of couples
engaged in relationships, and segregating them based on group identities instead
individual ones. As the court puts it in Singer
Marriage is so clearly related [emphasis mine] to the public interest
in affording a favorable environment for the growth of children that
we are unable to say that there is not a rational basis upon which the
state may limit the protection of its marriage laws to the legal union
of one man and one woman.65
The Singer court asserted that state protection of procreation and
children is sufficient reason for the discrimination. At the time in 1972 this
could not be disputed because an insufficient number of studies on the effects
of homosexual parents on children had been done.
The Supreme Court of Hawaii reversed the findings of Baker and
Singer in Baehr v. Levin. Sent back to the lower court to determine whether
the state had a compelling justification under intermediate scrutiny, the
court ruled that the state did not have such a justification.66
Equal Application and Facial Discrimination Today
Jeffrey Williams in his analysis of the of the Equal Application theory
declared it invalid because it prematurely halted the two step Equal
66 Ibid., 61.
Protection analysis determining the nature of the discrimination and the level
of scrutiny that must be applied to that discrimination. He believes that the
Pace court simply sidestepped the issue by finding there was no
discrimination in the first place.
Williams also believes that the equal-application defense fails
because it is substantially underinclusive. He argues that Supreme Court
cases have found both positive and negative discrimination to be
unconstitutional, so finding any facial discrimination alone may warrant
In a sense, this is to say that facial classification alone is sufficient to
warrant whatever scrutiny attaches to the classification system. ... It
may be that strict scrutiny is appropriate because of a harm associated
with a traditionally empowered group, because of the illusory or
paternal benefit offered the marginalized group,'" or perhaps both. It
is difficult to do one without the other: preferring one often translates
into harming another, yet this translation stymies the logic of the
asserted flaw. If both penalties and preferences are unconstitutional,
and preferring difference is as presumptively unconstitutional as
penalizing similarity, then it follows that penalizing similarity is
unconstitutional too. 67
Under this logic, any law that discriminates would have to be held under
scrutiny. Simply relying upon static models such as strict, intermediate, and rational
basis promotes a past-oriented view of the law. New minorites such as terrorists,
polygamists, cultists, and others with a variety of motives emerge all the time and do
not neatly fall into one of these three categories. It is to redress this fault that I
67 Williams, 1224.
suggest finding common elements between groups such as the miscegenation
EVOLUTION OF DISCRIMINATION FROM OVERT TO MORE SUBTLE
METHODS, ESPECIALLY STEREOTYPED IMAGES OF FAMILIES,
WOMEN, AND CHILDREN
Proponents of interracial and same-sex marriage bans follow repetitive and
long-standing patterns of discrimination. These include de-humanizing blacks and
gays, enshrining the virtues of women, and the protection of children.
Common themes can be distinguished in both racial stereotyping and sexual-
orientation stereotyping. The image of the sexual predator has been applied both to
black males and gay males. Black males were portrayed as overtly sexual and
predatory.68 Stereotypes dating back to slavery continued to prevail well into the 20th
century. Black males, it was felt, could not be trusted around white women for a
variety of reasons. They were looked upon as promiscuous, rude, and ruthless in
raising their social status through association with whites. Mississippi Circuit Court
Tom Brady delivered a speech to the Sons of the American Revolution shortly after
Brown v. Board.
If trouble is to come, we can predict how it will rise.... The fulminate
which will discharge the blast will be the young negro school- boy, or
veteran, who has no conception of the difference between a mark and
a fathom. The supercilious, glib young negro... will perform an
obscene act, or make an obscene remark, or a vile overture or assault
upon some white girl.69
68 Walker, 402.
69 Ibid., 403.
White women, subject to their own form of gender discrimination,
were put on a pedestal forever to be protected from avaricious black men.
[T]he loveliest and the purest of God's creatures, the nearest thing to
an angelic being that treads this terrestrial ball is a well-bred, cultured
Southern white woman or her blue-eyed, golden-haired little girl.70 71
Gay men have of course been portrayed as equally promiscuous, rude, and
avaricious by anti-gay groups. Studies of rather dubious scientific value have placed
the average number of lovers for promiscuous gay men between 50-300 per year.
Black Discrimination by Pseudo-Science
Another common element of the analogy is discrimination based on myths of
physical inferiority. The court in Scott v. State held:
The amalgamation of the races is not only unnatural, but is always
productive of deplorable results. Our daily observation shows us, that
the offspring of these unnatural connections are generally sickly and
effeminate, and that they are inferior in physical development and
strength, to the full blood of either race.72 73
Racial stereotypes of black physical inferiority began to change
around 1910 when anthropologists, sociologists, and other social scientists
beginning to study race scientifically. Segregationists began to use the
pseudo-scientific concept of "blood" to explain race and heredity. The
amount of black blood a person had in their ancestry determined that
person's rank in the social order. Black blood was supposed to be weaker
70 Ibid.,, 402.
71 Conservapedia, "Homosexuality Statistics."
72 Perez v. Sharp, 6.
73 Novkov, "Racial Constructions," 246.
physiologically and mentally than White blood, while simultaneously more
corrupting, even in very small quantities. Pure blacks were believed to be
childlike and easily led. Mulattos with some white blood became were
thought to be naturally stronger and smarter. Mulattos were considered more
dangerous because they were supposedly always eager to improve their
standing by taking white wives to create children with more white blood.74
Myths of Black inferiority lost their eugenic slant after World War II.
America had fought a war against the racist philosophy of the Nazis.
Members of the Supreme Court followed suit. Justice Black in the
conferences for Sweatt v. Painter and McLaurin v. Oklahoma State argued
segregation was "Hitler's creed he preached what the South believed.75
Attempts to prove inferiority scientifically continued after World War
II, although even in 1949 these were being refuted. Allegations of Black
mental inferiority included widespread allegations that Blacks scored
consistently lower on the Armys Alpha Test. These allegations did not hold
up in tests given in different areas of the country. In many cases, Black
children scored as high or higher in IQ than their white classmates. Black
physical inferiority was refuted by anthropological studies comparing White
and Black males. Susceptibility to disease, except for a high rate of
74 Novkov, "Racial Constructions, 244.
75 Balkin, 1540.
tuberculosis which was gradually lowering to White levels, also was not
borne out. Mulatto sterility was also alleged but found unsupportable.76
Opponents of interracial marriage feared the white race would be
subsumed into an amalgamation of the white and black races. Instead of a
pseudo-biological theory centering around blood, modem anti-gay groups
focus on a pseudo-psychological theory of conversion. Opponents of gay
marriage fear heterosexual identity is equally fluid. Anti-gay groups have
typically believed that homosexuality is not an immutable characteristic but a
choice, and an immoral one. Homosexuals to them are not bom gay, and find
other gays. Instead homosexuals convert those who were heterosexual into
choosing to become homosexual. They fear the conversion of heterosexuals
either by seduction, lowering of moral standards, or simple exposure to gay
lifesetyle at too young an age to make an intelligent choice. Conversion
serves the same purpose for anti-gay groups that blood did for anti-Black
groups. The fear of has spread in American culture as far as the idea of black
blood or the separation of the races spread for miscegenation bans. Fear of
being hit on by gay men became such a concern that the gay-panic defense
76 "Constitutionality of Anti-Miscegenation Statutes," 474-476.
arose in 1995 during the trial for murder of Johnathan Schmitz, eventually
gaining national notoriety during the Matthew Shepard trial of 199977
Conversion of children to homosexuality has been a primary fear.
Homosexuals were believed to be corrupting vulnerable youth, leading them
inexorably into degeneracy, immorality, and criminal behavior just as
"amalgamated" children would have no choice but to be degenerate, immoral
There was the fear that homosexual parents would raise their
children to be homosexual. It would also supposedly endanger a childs
emotional development due the lack of an opposite-sex parent to provide a
proper "role model" for a traditional family. Improper parenting and a lack of
a role model would lead to effeminate physiques and mannerisms in boys and
masculine ones for girls. For years, judges considered a parents
homosexuality grounds for denying custody, a homosexual lifestyle being
considered a danger to that childs moral development.
Concerns about gay teachers began even before Bowers, with the
belief that children would emulate the teachers lifestyle, influencing students
to become gay themselves. As Chauncey states in Perry:
the emergence of these stereotypes is the creation and then
reenforcement of a series of demonic images of homosexuals that stay
with us today. This fear of homosexuals as child molesters or as
recruiters continues to play a role in debates over gay rights, and with
particular attention to gay teachers, parents and married couples --
people who might have close contact with children.78
An example is the Briggs Initiative in California in 1978 which would
have banned gays and lesbians from working in California public schools.
Opponents of same-sex marriage have also sought to "protect"
children from being ostracized by society for being brought up in gay
households.79 If this fails, "converted" homosexuals can be re-educated in
"Ex-Gay" programs. Christian groups have taken out full-page ads claiming
homosexuals can be cured of their immoral choices and lifestyle.80
Fear of conversion rose again in the California Constitutional
Amendment Proposition 8 being debated in Perry v. Schwarzenneger. The
ballot argument in favor of Proposition 8 submitted by its proponents during
the 2008 campaign feared not direct conversion by teachers but the teachers
simply suggesting to the children the gay lifestyle was acceptable. It warned:
Proposition 8 is about preserving marriage. It protects our children
from being taught in public schools that "same-sex marriage" is the
same as traditional marriage. While death, divorce, or other
circumstances may prevent the ideal, the best situation for a child is to
be raised by a married mother and father. If the gay marriage ruling
[of the California Supreme Court] is not overturned, TEACHERS
COULD BE REQUIRED to teach young children there is no
difference between gay marriage and traditional marriage. We should
78 Perry v. Schwarzenegger, 43.
79 Keane, 521
not accept a court decision that may result in public schools teaching
our own kids that gay marriage is ok.81
81 Perry v. Schwarzenegger, 11.
CRITICISMS OF THE ANALOGY
Basing same-sex marriage on the miscegenation analogy limits same-sex
activism to the courts when it should be engaged in a much wider arena. Jack
Balkin, Professor of Constitutional Law at Yale Law in his essay "What 'Brown'
Teaches Us about Constitutional Theory" argues courts are more likely to help
minorities for one of three reasons:
All other things being equal, the most effective way for minorities to
secure protection by courts and legislatures is for the minority group
to demonstrate that protection of its rights is in the interest of
majorities, is required by values that majorities hold dear, or is
necessary to maintain a positive self-image for majorities. Minorities
must articulate their demands in ways that show that their interests
and values converge with the interests and values of majorities. Then
courts, which tend to reflect the views of the dominant national
political coalition, will follow suit. They will protect minority rights
to the extent that they do not conflict too much with the interests of
majorities. Conversely, to the extent that the minority group's
interests diverge significantly from the interests of majorities, the
minority group will face real limits to significant further reform.
Moreover, because courts in the long run tend to hew to the wishes of
national majorities -and particularly national elites- retrenchment in
the political process will usually be accompanied by retrenchment in
Balkin argues courts do base equal protection on analogical reason,
specifically the guidelines they set up in United States v. Carolene, that of "discrete
and insular" minorities. The court is supposed to protect those minorities that are
politically powerless. Balkin argues the Court extends equal protection not to the
S2 Balkin, 1553.
truly politically powerless but to those groups that have already "shown a fair degree
of clout in the political process." The truly politically powerless will be ignored by
the courts. His states
[B]y themselves, courts are relatively slow to act and ineffective when
social movements ask them to vindicate their rights. When they work
in tandem with other branches of government, however, their
contributions in shaping legal doctrine are amplified by the work of
others and often become quite important.
This suggests several disturbing flaws in using analogical reasoning.
Rights Dependent on Toleration of the Majority
First, it makes all minority rights dependent at the sufferance or tolerance of
the majority. Minority rights can be voted up or down as gay marriage rights were in
California by Proposition 8. Protesters of Proposition 8 objected to this concept
strongly, often with signs reading "Did we vote on your marriage?" Tossing aide
Madisonian democratic principles, Californians took the extraordinary step of voting
whether to grant constitutional rights to a sizable minority of its populace, virtually
guaranteeing it to be declared unconstitutional at some point, whether in Perry or a
later case. Balkin covers himself with his statement about national elites, leaving
open possible objections of his conclusions such as "activist judges" and the
influence of the "liberal media."
White, Heterosexual Rights as the Basis for Equal Protection
Analogical reasoning is inherently limiting. Are heterosexual, white rights to
be considered the baseline for equal protection? Is the right to same-sex marriage
only protected by how closely it mirrors white, heterosexual marriage?
Franke argues that the Court has already based homosexual rights in
Lawrence on a like-straight rule, as evidenced by Justice OConnor's statement that
gay people "in the same manner as everyone else."83 OConnor is basing such rights on
analogical argument. However, the open analogy O'Connor uses is signification limited by
Justice Kennedy significantly limited in his statement" "[pjersons in a homosexual
relationship may seek autonomy for [sex], just as heterosexual persons do." Kennedy is
limiting the sodomy ruling not only to homosexuals in relationships, but to homosexuals in
relationships that are like straight couples.84
Limiting Application to Only Marriage
The miscegenation analogy risks becoming only about marriage, just as Loving was
initially ready to be ONLY about interracial marriage, with no application to marriage in
general. Lawrence and Perry run the same risk with gay marriage that Singer v. Hara did
with Loving. They risk becoming only about gay marriage. The Singer court declared
Loving was only about interracial marriage and so had nothing do with gender
discrimination applied to gay marriage. "[Ajppellants were not denied a marriage license
because of their sex; rather, they were denied a marriage license because of the nature of
marriage itself." The Baehr court rejected this argument as "tortured and conclusory
83 Hunter, 1531.
84 Franke, 1408.
sophistry." Lawrence and Perry run the risk of excluding all other groups, inclusing
homosexuals not in couples, homosexuals who do not wish to be married but wish to have
their unions recognized, and homosexuals who do not wish to be married at all but wish for
all legal protections in general.
Incorporation into Existing Equal Protection Law
The Lawrence decision may indicate that the court is beginning to accept the
idea of orientation blindness, just as it once had to push for color blindness in
McLaughlin and Loving. The question becomes how the Court would incorporate the
Analogy into existing Equal Protection law. If the Miscegenation Analogy is true,
equal protection must logically be extended beyond racial and sexual discrimination
to include other minorities that are analogous to them.
Equal-protection analysis of laws involves two parts, the determination of the
standard of scrutiny to be applied and the consideration of possible state interests in
the application of the standard.85 The Supreme Court has created a three-tiered
scheme of suspect classifications. Those that receive "strict" scrutiny generally
involve fundamental rights. In strict scrutiny, the state must demonstrate that the
classifying statute is narrowly tailored to achieve a compelling state interest. This
classification is generally fatal to any legislation, either as overly broad or lacking
sufficient reason to encroach on a fundamental right. For those that receive
"intermediate" scrutiny, the state must show only that the legislative means are
85 "Constitutional Status of Sexual Orientation," 1298.
substantially related to an important state goal. Intermediate classification has
generally involved sexual-discrimination classifications. The lowest level is rational-
basis classification, in which the state must show only a rational basis between the
classification and a state interest.86
If the Miscegenation Analogy is true, the same protections that apply to
interracial marriage would have to be applied to gay marriage. The Supreme Court
has declared marriage a fundamental right in several cases. Therefore, strict scrutiny
would have to be extended to gay rights as they have been to racial rights.
The Harvard Law Review, in its "The Constitutional Status of Sexual
Orientation: Homosexuality as a Suspect Classification", argued that the Supreme
Court focuses on three factors when determining whether a classification is suspect:
1. The immutability of the group's defining quality. 2. The group's status as a
"discrete and insular minority." 3. The stigma and opprobrium attached to the group.
Ironically, in 1985, there was far less scientific evidence that homosexuality
was an inherited "immutable" trait, something generally accepted in Perry v.
Schwarzenegger. Perry found that "the vast majority of gays and lesbians have little
or no choice in their sexual orientation; and therapeutic efforts to change an
individual's sexual orientation have not been shown to be effective..."87
86 Ibid., 1293-8.
87 Perry v. Schwarzeneggger, 15.
Opponents of extending equal protection to homosexuals use the "discrete
and insular minority" argument. Gay and lesbian culture is far more open and public
today than it was in 1985 at the time the Harvard Law Review article was written, so
why extend them special equal protection status? The extent to which homosexual
culture is still insular is debatable. Certainly, homosexual political groups and
movements are more politically influential today. However, one has to take into
account that only five states allow any kind of gay marriage or civil unions at all, and
as of March 2011,41 states prohibit same-sex marriage via state statutes or state
constitutions. While still discrete if less insular, homosexual political power remains
tenuous in many "Red" states. The Defense of Marriage act, while President Obama
has stated he will no longer officially enforce it, remains Federal law and may be
taken up by a future President less friendly to gay rights.
The Harvard Law Review argues that stigma and opprobrium are the least
controversial of the criteria to extend suspect status.
Historical subjugation.... is evidence of a concrete harm that needs to
be remedied... it suggests that the pluralist democratic process is
malfunctioning... that substantive constitutional values are being
ignored... It is universally considered a warning signal that plays an
important role in triggering judicial intervention. Under the criterion
of historical and continuing discrimination, then, gays qualify for
consideration as a class deserving of heightened scrutiny.8*
To those who argue that discrimination against homosexuals and same-sex
marriage is not as severe or pervasive as those against interracial marriage or Blacks,
88 "Constitutional Status of Sexual Orientation," 1301.
my analysis of the Miscegenation Analogy disagrees. While admittedly not
suffering as long historically as Blacks, homosexuals and same-sex marriage have
suffered the same discrimination based on moral reasons, the same criminalization of
their behavior, the same hypocritical denial of rights under the Equal Application
argument, and the same evolution of discriminatory methods over time.
Same-sex and interracial couples today still both fear hate crimes. Both fear
discrimination in employment, in housing, and in education. Both today fear for their
children's self esteem because of their being raised in families so "different."
There are still obvious differences between the two groups. Interracial
couples generally do not fear having their children taken from them if the couple
gets divorced, something that is still a distinct possibility for same-sex couples in
many states. The interracial couple today has the traditional legal rights that come
with marriage automatically, something the same-sex couple has to spend many
hours with a lawyer doing paperwork to get even a shallow imitation of.
I have not discussed the phenomenon of "passing" that many same-sex and
interracial couples have to go through, as it was beyond the scope of this paper. It
remains a critical difference for many same-sex marriages that they can "pass" as
friends or roommates to outsiders, something that many interracial couples and their
children cannot do. Many opponents of the analogy would say that an important
difference is that same-sex couples can pass while interracial or same-race couples
have to deal with racial discrimination from the start, making racial discrimination
elements. With consent, adult status, and lack of physical harm, the only objection
that can be made against these three acts are they violate our concept of a "proper"
In such cases, the court must beware of making the equal application error.
For example, a court might see a consenting, adult incestuous marriage as only
incest, instead of a marriage. The objection will be raised, of course, that incestuous
marriages, unlike interracial or same-sex marriages, have verifiably negative genetic
effects. Recessive genes from both parents are more likely to combine and the
children exhibit autosomal recessive disorders. However, if one or both parents are
unable to have children, the situation becomes analogous to the same-sex couple
unable to have children.
A further objection is whether an adult incestuous, bigamous, or adulterous
relationship is psychologically healthy for the adults participating in it. The
miscegenation analogy perhaps serves its most useful function as a warning to
society not to judge the relationships of others too hastily. A truly healthy
incestuous, bigamous or adulterous relationship, where all participants are
independent, able to make decisions rationally, and free to leave at any time, is most
likely an idyllic fantasy never truly seen in reality. But such a situation, where the
participants seem happy and healthy, frustrates the moral judgments of those outside
the relationship. Judging the relationships of others leads to the dangerous precedent
that others may judge our affairs. While I do not personally endorse bigamy, adult
incest, or adultery, I am reminded of those Congressmen in 1866 who declared
interracial marriages unnatural and against the will of God, who believed
amalgamation would signal the end of White society, and I wonder how my personal
biases will look to others 150 years from now.
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