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Gay Marriage Uses Race Laws

By April 1, 2013September 6th, 2013No Comments

In June, the U.S. Supreme Court will decide the fate of same-sex marriage. Attorneys for marriage equality have argued same-sex marriage is the same as interracial marriage. There is a tricky relationship between same-sex marriage arguments today and Civil Rights-era race cases.

Gay marriage advocates want racial justice cases like Loving v. Virginia to apply to them. Richard Loving, White, fell in love with Mildred Jeter, African-American. They married in Washington, D.C. because it was illegal for interracial couples to marry in Virginia. The Lovings were arrested for miscegenation or race-mixing. In 1967, the U.S. Supreme Court struck down anti-miscegenation laws.

DOMA, the Federal Defense of Marriage Act, and Proposition 8, a California law created by public referendum, define marriage as only between a man and a woman. Advocates for same-sex marriage want the Court to strike down DOMA and Prop 8 just as it struck down anti-miscegenation laws.

While arguing his case before the U.S. Supreme Court, Attorney Charles Cooper, a proponent of Prop 8, was left stuttering. Justice Ruth Bader Ginsberg had asked him about McLaughlin v. Florida. Cooper admitted he had never heard of the case. In McLaughlin, an interracial couple was sent to prison for violating Florida’s anti-miscegenation law. Cooper was unfamiliar with that case because it pre-dated Loving.

Justice Ginsberg was trying to get Cooper to see how cases lay a foundation. It took many legal challenges before the Lovings’ success. Meaning, there would be more same-sex marriage cases to come. However, Justice Ginsberg’s question to Cooper uncovered the fact that hundreds of racial justice cases pre-date Loving. Most are unknown to present-day attorneys.

References to racial justice cases were raised throughout the same-sex marriage case. Justice Sonia Sotomayor referred to Plessy v. Ferguson. In 1896, Plessy v. Ferguson reduced people of color to second-class citizens. In Court, a proponent of gay marriage, attorney Theodore Olson, a former U.S. Solicitor General, compared same-sex partners challenging DOMA to parents in Brown v. Board of Education who challenged racially segregated schools. Olson argues that, like Blacks, the inability of same-sex couples to marry makes them second-class citizens.

Marriage equality advocates would not be the first to successfully use racial justice cases to further their cause. Advocates for women’s rights, the disabled, and immigrants rely on Civil Rights-era cases and legislation. Racial justice cases resulted in protections for voting rights, criminal justice, public accommodations, employment, property ownership as well as marriage for all people; not just Blacks.

However, defeating DOMA and Prop 8 using racial justice cases does not mean sexual orientation is just like race. During the oral argument, the Supreme Court, in particular Justice Sotomayor appeared to be wrestling with whether prejudice against a spouse’s skin color is the same as prejudice against a spouse’s sexual orientation. The Court questioned whether race is indistinguishable from sexual orientation.

However, race, in America, is based on a continent of origin. African-American means people of African descent. Africa is a physical place with its own unique culture, history, and legacy. African-Americans, as a race of people descending from Africa, are part of that culture, history, and legacy. Setting aside religious contentions and social constructions, interracial marriage differs from same-sex marriage.

The legal standards for race and sexual orientation are different. Lawsuits alleging racial discrimination are held to strict scrutiny, the highest, legal standard while sexual orientation cases are judged using a rational basis test. Just as race, age, and gender discrimination have different legal standards.

Comparing same-sex marriage and inter-racial marriage is not a matter of narrow-mindedness or envy. Gays have advanced with relative speed compared with this long and treacherous road toward racial justice. But, umbrage is rightfully taken when brilliant strategies are copied; but rarely given attribution. The ongoing struggle with its innumerable sacrifices for racial justice is ignored unless it results in more stepping stones for others.

The Black activists who created these works of legal art are disregarded. Few know the African-American attorneys like Charles Hamilton Houston, James Nabrit, and Constance Baker-Motley who devoted their genius to the cause of equal justice for all. Those master carvers created the cornerstone of equal protection under law.

Upon that rock others now stand; similar but different.


Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in New York City, is author of “Race, Law, and American Society: 1607 to Present,” and a legal correspondent covering major trials and the U.S. Supreme Court. Twitter: @GBrowneMarshall

Gloria Browne-Marshall