FYS Final Paper: Marriage Rights In the United States

Themes:

hybridity 

intersectionality

citizenship/legitimacy

historical events affecting the LGBT community

marriage

social construction(of race and gender)

    Historically, the institution of marriage in the United States has been malleable, with the definition of marriage and who can get married changing over time. The United States federal government did not even recognize marriage in legal terms until the Revenue Act of 1913, where it outlined a tax-break applicable to married couples (Levy). The regulation of marriage is left to the states as a reserved power, outlined by the Tenth Amendment of the Constitution’s Bill of Rights as any power not delegated to the federal government. The result of this is the absence of an early federal definition or regulation of marriage. Outside of federal jurisdiction, however, marriage is defined as “a legal union between a man and a woman for life”(Webster’s Dictionary) given “(1) the parties' legal ability to marry each other, (2) mutual consent of the parties, and (3) a marriage contract as required by law”(Cornell Law). Today, Supreme Court cases and federal legislation delineate the parameters of marriage in the United States. Landmark case Loving v. Virginia (1967) expanded the right to marry to interracial couples while Obergefell v. Hodges (2015) expanded the right to marry to same-sex couples. Much more recently, the Respect for Marriage Act, published on December 13, 2022, requires all states to recognize same-sex marriages performed in other states (Radde). While redundant now, this act is meant to protect existing same-sex marriages in the event that Obergefell v. Hodges is overturned. In this essay, I will argue that despite access to the institution of marriage, same sex couples still exist outside of the social definition of marriage and are inherently deprived of rights associated with citizenship as a result.

        From examining the evolution of antimiscegenation sentiment prior to and following the Loving v. Virginia decision, we can deduce the trajectory of same-sex marriage sentiment. The early 20th century saw an uptick in marriage (miscegenation) legislation. In particular, Virginia’s Racial Integrity Act of 1924 “prohibited interracial marriage and defined as white a person ‘who has no trace whatsoever of any blood other than Caucasian’”(Wolfe). This ban was rooted in Eugenicist ideas of race purity, positing races outside of whiteness as inherently inferior. The abovementioned doctrine sought to weaponize marriage as means of social control by denying the oppressed and the oppressor the right to lie together, thus reaffirming the distinction between oppressed(black) and oppressor(white). Additionally, this sanction on interracial couples ensured that no mixed or hybrid children could result from miscegenation and therefore blur the distinct line between whites and nonwhites, thus undermining the social hierarchy with whites as the hegemon. This was the foundation on which interracial couples were denied the right to marry. This ideology prevented Mildred and Richard Loving, who were legally married in the District of Columbia, from being recognized as a married couple when they moved to Virginia. In 1958, after being charged with violating the Racial Integrity Act, the couple was given the choice to leave the state or face jail time, of which they chose the former (Cornell Law). However, the Lovings sued in Virginia state court until they reached the Supreme Court as appellates in 1967, where the court decided “it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend on the race of the actor”(United States). Employing strict scrutiny, the Supreme Court found that the state of Virginia did not have a compelling interest in criminalizing interracial marriage, thus legalizing it nationwide. 

    While this legal stride provided interracial couples with the right to marry, Supreme Court opinion did not align with that of the nation. Sixteen states had anti-miscegenation laws as of 1967. In defense of its statute, Virginia argued that its Racial Integrity Act “‘punish[es] equally both white and the [black] participants in an interracial marriage’ fruitlessly as the court decided state efforts to ‘preserve the racial integrity of its citizens’…prevent the ‘corruption of blood’…[and mitigate] the obliteration of racial pride… endorse[d] the doctrine of White Supremacy”(Eskridge and Hunter). While Virginia argued the equal enforcement of their statute and the faulty line of reasoning it followed, the court identified Eugenicist sentiment embedded within the fallacious argument for race purity. The court’s decision, while regarded as the law of the land, didn’t align with popular thought. In fact, Virginia’s oral argument against miscegenation echoed majority sentiment. Additionally, circuit judge James R. Browning shares about the sentiment of miscegenation across the nation:

“...the absence of anti-miscegenation statutes in some states should not be considered as evidence that such marriages are approved there or that there is a popular indifference to them. Rather, the lack of such laws frequently reflects the fact that Negroes and Orientals are a negligible part of the population in these states, and that [sic] intermarriages are so few that the question can be ignored”(Browning).

Thus, popular sentiment surrounding miscegenation around and after the time of Loving v. Virginia was not in favor of racial integration. Momentum towards the preservation of racial purity was not halted or reversed by Loving v. Virginia as white Americans were “implicated

  in preserving the racially constructed status quo”(Haney Lopez). In the wake of Loving v. Virginia, legal protections and freedom to marry interracially were not synonymous with social acceptance and freedom to exist within interracial marriages. Today, society at large still views interracial marriage with a quizzical, watchful eye.  In 2017, Vice interviewed interracial couples for the 50th anniversary of Loving v. Virginia, asking them to reflect on their lives and experiences as interracial couples. While experiences varied from couple to couple and from person to person, every couple shared the same sentiment: they are always made aware of their choice to “miscegenate” in the outside world. They are ogled at and frowned upon, forced to make a social-political statement of their marriage or hide it in the shadows. For Former white Congressman William Cohen, this entailed waiting to marry his longtime black partner Janet Langhart Cohen until after his senate reelection, citing fears of racism costing him his Senate seat. Another couple shared the schism their extended family underwent as a result of their marrying: Gail’s black husband Vaughn is not allowed in her family’s home and her parents pray that they don’t conceive(Vice). The implications of these sentiments is troubling: despite access to marriage as a legal institution, interracial couples face repercussions for their marriage in the social realm. While the struggles of same-sex couples mirror these issues, they are unique in that same-sex marriage is viewed as contrary to the entirety of the traditional marriage institution(Lorber). 

    While same-sex couples face comparative discrimination to interracial couples, the very nature of their relationship is contrary to the gender binary upheld by marriage. In the case Bowers v. Hardwick, the Supreme Court upheld Georgia’s statute criminalizing oral and anal sex, arguing that protections of these inherently homosexual acts did not align with the “nation’s history and tradition” as outlined in the Syllabus of the judicial opinion. Justice Berger’s concurring opinion in Bowers v. Hardwick extrapolates on this stance: 

“Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law”(Bowers, Attorney General of Georgia v. Hardwick et Al..,).

Mentions of Western civilization, Judeo-Christian moral and ethical standards, and sodomy laws allude to marriage as a relic of religious traditions (Cornell Law). Marriage denotes a contract between a man and a woman. The relationship between a man and a woman is patriarchal in nature, modeled after traditional Abrahamic gender roles that in many ways still persist today. Although the gender categories of man and woman are socially constructed, the implications and pervasiveness of the abovementioned gender binary are far-reaching (Lorber). Expectations thrust upon men to be strong, emotionless, rational, breadwinners and women to be gentle, emotional, ditzy, homemakers scaffold current social and legal structures in the United States. These expectations and associations, termed “scripts,” are the foundation to the social institution of marriage that is widely regarded as occurring between a man and a woman for the purpose of procreation (Wideman). In 1996, the Defense of Marriage Act cemented this traditional view of marriage into law (signed by President Bill Clinton), asserting that states did not have to recognize same-sex marriages external to their state and echoing public sentiment that marriage occurred ”between a man and a woman for purposes of Federal law”(Legal Information Institute). It was not until 2013 that Section 3 of DOMA was repealed by the Supreme Court in the case United States v. Windsor, given that the “federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections”(NYCLU). The most recent and wide-reaching win for the gay and lesbian community in court was the Supreme Court case Obergefell v. Hodges that legalized same-sex marriage nationwide in 2015, citing state regulation and impediment on same-sex marriage was a violation of the Equal Protection Clause, while issue of a state not recognizing another’s marriages as a violation of the Due Process Clause (Cornell Law). Despite the magnitude of this expansion of gay rights, the plasticity of marriage remains in both legal and social arenas. 

Same-sex marriages are not typically regarded with the same reverence as “traditional” marriages. For instance, the default term for same-sex married people as partners rather than husbands or wives speaks to the “othering” of same-sex marriage as a union or domestic partnership, less than a marriage (Lenhardt). Terming same-sex couples and spouses as partners is a relic of domestic partnerships and civil unions that were available to same-sex couples before they were given the right to marry in 2015, underscoring the implications of past inequality in current repercussions for members of the LGBTQ community. Even with access to the institution of marriage, lack of access to socially legitimizing factors prevents same-sex couples from establishing marriage and familial legitimacy, and therefore full citizenship. As the early fight for same-sex marriage fought the “ingrained belief within people that marriage was inherently something that occurred between a man and a woman,” the latter bargaining for social acceptance of same-sex marriage is inherently tied to these preconceived notions that live on in society at large (Stein-Alvarado). When it is necessary for same-sex marriages to commodify the legitimacy that is built into heterosexual marriages, largely by replicating the nuclear family, the intersections of other identities promote and/or discourage wealth, affecting the societal acceptance of same-sex marriage as “real marriage.” For instance, means of growing a family (a socially legitimizing feature of marriage), accessible by IVF or private/public adoption, can be expensive. Thus, same-sex couples’ proximity to whiteness, class, and participation in traditional gender roles determine who, of same-sex married couples, is deemed to be in a real marriage. Overwhelmingly, wealthy, white, gay men in same-sex marriages are most highly regarded in comparison to their marginalized counterparts, and are thus granted near full citizenship by society. However, there is a stipulation to this. Adjacent to this sentiment of buying your way into a legitimate marriage is the underlying sentiment that a same-sex married couple’s willingness and ability to fulfill the gender roles of a heterosexual marriage grants them a socially legitimate marriage. Filling the roles of top and bottom as relationship roles rather than intimate roles lends to this likening of same-sex marriage as like, but not quite, heterosexual marriage. Encapsulating this idea is the discussion within the syllabus of Obergefell v. Hodges, stating that “though [Bowers v. Hardwick] was eventually repudiated,  men  and  women  suffered  pain and  humiliation  in  the  interim, and  the  effects  of  these injuries no  doubt  lingered  long  after Bowers was overruled”(Supreme Court of the United States). Indeed, the injuries live on in gay people across the United States. However, these injuries, codified by Bowers v. Hardwick, are enacted daily by society at large. Despite the Supreme Court being revered as the law of the land, “law” created by the Supreme Court can be overturned. High turnover in the Supreme Court leaves the right to same-sex marriage vulnerable. 

    Within the past year, the overturning of the right to privacy case Roe v. Wade via Dobbs v. Jackson shows just how transient minority rights can be; here today and gone tomorrow. With a concurring opinion in the Dobbs v. Jackson judicial opinion(2022), Justice Clarence Thomas shared that gay marriage, codified by the landmark case Obergefell v. Hodges, may be on the chopping block just as Roe v. Wade was due to its judicial line of reasoning. The reasoning, rooted in substantive due process, or an implied right to protection from government interference by the Fifth Amendment and Fourteenth Amendment, is one he argues does not exist, and with a majority conservative court, this sentiment may soon become law. Given the amalgamation of factors mitigating the institution of marriage as a signifier of citizenship, the conditional and transient nature of same-sex marriage in both the legal and social sense is not indicative of full marriage equality and, thus, full legal citizenship. 

Works Cited

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Eskridge, William N., et al. Sexuality, Gender, and the Law. Fifth edition., Foundation Press, 2023.

Haney Lopez, Ian F. “The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice.” Harvard Civil Rights-Civil Liberties Law Review, vol. 29, no. 1, 1994, pp. 1-.

Judith Lorber. “Night to His Day: The Social Construction of Gender.” Paradoxes of Gender, Yale University Press, 1994, pp. 13-.

Lenhardt, Robin A. “Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage.” Fordham Law School, 2008.

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