Excerpted From: Randall Kennedy, Marriage and the Struggle for Gay, Lesbian, and Black Liberation, 2005 Utah Law Review 781 (2005) (121 Footnotes) (Full Document Requested)


RandallKennedyMay 17 is a notable date on the calendar of progressive reform in the United States. On May 17, 1954, in Brown v. Board of Education and Bolling v. Sharpe, the Supreme Court of the United States broke with tradition in holding that the Federal Constitution prohibits states and the federal government from racially segregating students in public primary and secondary schools. Fifty years later, on May 17, 2004, a ruling by the Supreme Judicial Court of Massachusetts took effect that broke with another fiercely defended tradition. In Goodridge v. Department of Public Health, the supreme judicial court held that the Constitution of the Commonwealth of Massachusetts prohibits that state from barring matrimony to a couple solely because the couple is of the same sex. Brown and Goodridge share more than a coincidental date. The former nourished the soil from which the latter emerged. This should not be surprising. Struggles for justice on behalf of racial minorities have often generated benefits that have enhanced the quality of life for America as a whole. Federal judicial monitoring of police practices arose from efforts to deter racist police from beating confessions out of black suspects. The legal standards that provide substantial breathing room to publications even when they make mistakes in criticizing government officials emerged from efforts to safeguard newspapers against crippling libel actions brought by angry segregationists. Many of the key legal rules that protect demonstrators against arbitrary or discriminatory suppression were established by efforts to shield black activists who demanded “Freedom Now.”

This pattern has continued with struggles to free matrimony of invidious exclusions. In 1967, the Supreme Court belatedly invalidated so-called antimiscegenation laws that prohibited people of different races from marrying one another. The Court announced this ruling in the most aptly titled decision in all of American law: Loving v. Virginia. The case arose from the prosecution of Richard and Mildred Loving. Their crime? Marrying one another. The Virginia Racial Integrity Act declared it a felony for a “white” and “colored” person to marry. Richard Loving was white; his betrothed, Mildred Jeter, was colored. The law that condemned, punished, and voided their marriage had old roots. It stemmed from legislation dating back to the 1600s. This law, moreover, was by no means aberrational. At one time or another, forty-one states prohibited interracial marriage. Such prohibitions were among the most jealously guarded of all of the white supremacist laws that used to festoon America's statute books. As Gunnar Myrdal observed in An American Dilemma, the ban on interracial marriage occupied “the highest place in the white man's rank order of social segregation and discrimination.” White supremacists cited fear of interracial marriage as a basis for segregating schooling and excluding blacks from juries and ballot boxes. Condemning Brown, a judge in Mississippi, Tom P. Brady, complained that desegregation in public schools would mean that “little white and negro children . . . will sing together, dance together, eat together and play together. They will grow up together and the sensitivity of the white children will be dulled. Constantly the negro will be endeavoring to usurp every right and privilege[,] which will lead to intermarriage.”

When reformers charged that antimiscegenation laws violated the Federal Constitution's Equal Protection Clause, judges responded by concluding that such laws satisfied the dictates of the Fourteenth Amendment inasmuch as they “equally” restricted whites and blacks (or other people of color). Whites could not marry blacks, and blacks could not marry whites. Voila! Everyone was being treated the same.

Behind this formalistic but highly serviceable doctrinal defense resided various rationales that were once passionately asserted and widely believed, but that are now so thoroughly discredited that they no longer warrant extended rebuttal. One was the claim that antimiscegenation laws gave voice to the will of God. “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” a judge declared in 1959 as he imposed punishment upon two people deemed to have committed felonies by marrying one another across the race line. “And but for the interference with [God's] 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.” Maintaining order was another justification invoked to support antimiscegenation laws. As a party in a Tennessee case put it, such legislation is socially useful to “prevent violence and bloodshed which would arise from such cohabitation, distasteful to our people.”

The claim that interracial marriages would give rise to tainted offspring was long relied upon as a rationale for legislation barring interracial matrimony. The proslavery propagandist Henry Hughes advanced this notion in a particularly vivid form, declaring: “Hybridism is heinous. Impurity of races is against the law of nature. Mulattoes are monsters. The law of nature is the law of God. The same law which forbids consanguineous amalgamation[] forbids ethnical amalgamation. Both are incestuous. Amalgamation is incest.”

Hughes was by no means alone. A substantial number of judges also embraced this pseudoscientific myth. “The amalgamation of the races,” the Supreme Court of Georgia once intoned, “is always productive of deplorable results. . . . [T]he offspring of these unnatural connections are generally sickly and effeminate . . . [and] they are inferior in physical development and strength, to the fullblood of either race.”

An implicit rationale for antimiscegenation laws, moreover, was the notion that interracial unions simply did not fit the definition of marriage in states which envisioned matrimony as a status that would exclude relationships involving people of different races. As opponents of same-sex marriage today assert that such unions are simply ineligible definitionally for matrimony, so too, previously, did opponents of interracial marriage assert that mixed-race unions should be deemed ineligible for matrimony.

The antimiscegenation regime received a jolt in 1948 in Perez v. Lippold when the Supreme Court of California invalidated that state's antimiscegenation law. In the court's main opinion, Justice Roger Traynor held that the state law prohibiting marriage across racial lines contravened the Federal Constitution. Insisting that marriage is a fundamental right that cannot properly be impinged upon except for an important social objective and by reasonable means, Justice Traynor concluded that in both its goal and its means, California had failed to meet federal constitutional standards, especially insofar as race restrictions must be viewed with great suspicion.

The Supreme Court of California found itself consigned to splendid isolation for nineteen years. No other court followed its lead until the United States Supreme Court did so, in 1967, in Loving v. Virginia. Not until thirteen years after Brown and Bolling did the Court apply the methods and ethos of those decisions to the last segregationist barrier: Jim Crow at the marriage altar. In Loving, the Court struck down the Virginia Racial Integrity Act, which criminalized interracial marriage. In doing so, the Court implicitly invalidated the antimiscegenation laws of fifteen other states. The Court held that antimiscegenation laws violated both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Maintaining that “[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies” racial segregation in matrimony, the Court concluded that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” The Court then asserted that because

the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men[,] . . . [t]o deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes . . . is surely to deprive all the State's citizens of liberty without due process of law.

Efforts by gay and lesbian couples to attain access to legally recognized marriage are rather recent, partly because of conflicted attitudes towards marriage and largely because, for a long time, repression made the very idea of same-sex marriage literally unthinkable. In the early 1970s, however, a few pioneering same-sex couples began to demand access to marriage on the same terms as different-sex couples. “Whatever rights straight people have, I want too,” asserted Jack Baker, a plaintiff in Baker v. Nelson, the first lawsuit challenging the heterosexual monopoly on marriage. From the outset, such couples analogized their plight and their right to those of interracial couples that states had long barred from marrying. Indeed, because of the pervasiveness of analogical rhetoric in legal argument and the usefulness of the Loving precedent to champions of same-sex marriage, it is difficult to imagine a campaign to permit such marriages in which the analogy to interracial marriage would be absent. As Janet Halley observed, asking advocates of gay and lesbian rights “to abandon ‘like race”’ analogies “would be like asking them to write their speeches and briefs without using the word ‘the.”’

The central claim of those who invoke Loving on behalf of the right to same-sex marriage is that prohibiting same-sex couples from marrying is as illegitimate as prohibiting different-race couples from marrying. It is this use of Loving that I refer to as the Loving analogy. This analogy, however, is conceptualized in a variety of ways.

[. . .]

Throughout history and around the world, one encounters this dreary scenario of victims victimizing--whether it is Jews or Palestinians, Serbs or Bosnians, Hutus or Tutsis. It should come as no surprise, then, that some blacks, including persons active in struggles against white supremacy, would be among those hostile to equality for gays and lesbians. After all, given the virulence and prevalence of homophobia generally, it would be hard to imagine it not infecting to some substantial extent the culture of African Americans. Indeed, many African American communities have been infected by a variety of sources, including certain conservative Christian teachings as well as certain Afrocentric dogmas. The consequences have been disastrous, ranging from opposition to lifesaving programs directed against the AIDS epidemic to vocal opposition to reforms that would permit gay marriage. Perhaps the low point thus far in black opposition to the advancement of gays and lesbians was a statement made by Reverend Gregory Daniels of the United Truth and Change Church of Chicago. After making the lamentable comment that he did not think that “the suffering [of homosexuals] compares to the brutality that our people have suffered,” he despicably remarked that “if the KKK was opposing same-sex marriage, Reverend Daniels would ride with them.”

It is important to criticize the parochial side of advocacy on behalf of colored people--the camp which seems to believe that “Is it good for us?” is the only question worth asking. But it is also important to recognize another camp among those who have championed racial minorities--the cosmopolitan camp. This is the camp that has evinced a concern for justice in all its full, diverse, complex splendor, and that has, over time, provided support to a wide variety of causes including feminism, the labor movement, and anti-imperialist struggles. In the nineteenth century, one the foremost examples of the cosmopolitan wing of the black liberation struggle was Frederick Douglass. In the twentieth century, the foremost exemplar was Martin Luther King, Jr., who famously declared that “[i]njustice anywhere is a threat to justice everywhere.” Today, among the ideological successors to Douglass and King is Julian Bond, a hero of the civil rights revolution who remained an activist and is currently the President of the NAACP. Bond has supported unstintingly the right of gays and lesbians to marry, and has openly welcomed efforts to associate the struggle for racial justice with the struggle for justice on behalf of gays and lesbians. Eschewing the resentment voiced by some who object to what they see as rank exploitation of the goodwill created by the black civil rights movement, Bond declared: “[W]e ought to be flattered that our movement has provided so much inspiration for others, that it has been so widely imitated, and that our tactics, methods, heroines and heroes, even our songs, have been appropriated by or served as models for others.” Blacks, he continues, “are far from the only people suffering discrimination--sadly, so do many others. They deserve the law's protections and civil rights, too.”

The Brown decision of May 17, 1954, triggered all manner of repercussions, including a massive backlash that, in some locations, actually worsened, in the short run, the daily living conditions of African Americans. Despite that backlash and other subsequent reactions to advances by blacks, Brown and its progeny constituted one of the most praiseworthy reforms in American history. Similarly praiseworthy is Goodridge v. Department of Public Health.

Goodridge has been decried in some quarters on the ground that it foreseeably fed a conservative reaction that has moved all of American politics rightward. This viewpoint was voiced in an especially vulgar fashion in a letter to the gay columnist and sex advice specialist Dan Savage. Apparently believing that the gay marriage issue played an important role in the re-election of President George W. Bush in 2004, the writer declared: “I can't believe that you fucking faggots could fuck it up for everyone like this. If you faggots had just waited until after the election to start getting married, then we wouldn't have to put up with George W. Bush and Republican control of both houses of Congress.”

Savage replied sarcastically by reference to yet another analogy to the black civil rights movement:

I hear you . . . . And while we're apportioning blame for the current fucked up state o' the nation, let's not forget all those stupid, stupid African-Americans who fucked [up] the Democratic lock on the South by launching the civil-rights movement. Jesus, we'd have a Democratic Senate right now if it weren't for them! Remember what [President Lyndon Baines Johnson] said when he signed the Civil Rights Act of 1964? “We have lost the South for a generation.” Wrong! The Dems wound up losing the South for two, three, four more generations. All because selfish blacks wanted to vote, get educations, and sit wherever they damn well pleased on the bus. The nerve of some people!

Whether, or the extent to which, the struggle over gay marriage did actually tilt American politics rightward in the presidential election year of 2004 is sharply contested. But assuming that a backlash did play a significant role, one should remember that history unfolds in mysterious ways that are difficult (if not impossible) to anticipate. The ugliness of the reaction to Brown, the Civil Rights Act of 1964, and other progressive racial reforms helped to awaken the country to the need for a larger, more determined, and ongoing confrontation with past and present racial injustices. A similar chain of events may assist in prompting society to confront and overcome its deeply ingrained oppression of gays and lesbians.

B.A., Princeton University. J.D., Yale Law School. Professor, Harvard Law School. This essay is based on the William H. Leary Lecture that I delivered at the S.J. Quinney College of Law, at the University of Utah, on October 7, 2004.