IS SSM LIKE INTERRACIAL MARRIAGE?: David Wagner on Loving v. Virginia

Why Loving does not mean a right to same-sex marriage:

Virginia, and other states that had anti-miscegenation statutes, had layered onto marriage an additional requirement (race-sameness) that is not part of it, not only abstractly speaking, but also within our legal tradition. That tradition had/has a very clear notion of what it takes to make a marriage legally valid and non subject to annulment at will: things like consent, proper age--and penile-vaginal intercourse. Race sameness was not part of that pack of elements. It was never part of what common-law judges, applying common-law principles, considered to be part of marriage, in the absence of special anti-miscegenation laws.

(Cites supporting the above claims about the elements of marriage can be found in Robert George's essay "Marriage and the Liberal Imagination," published as ch. 8 of his book In Defense Of Natural Law (Oxford, 1999), and previously published in the Georgetown Law Review.)

Loving, therefore, did nothing to alter the nature of marriage; it merely removed an extraneous and unconstitutional add-on. Goodridge, by contrast, takes an element of marriage consistently treated as such in American (not to say Western; not to say universal) legal history, and characterizes it is an extraneous add-on.

Even Virginia, pre-Loving, did not deny that bi-racial marriages were marriages; it simply considered them illegal marriages (and in so doing, violated the Constitution). By contrast--this is something that may vary state by state, but in general--states that are loosely said to "ban" SSM by failing to issue marriage licenses to same-sex couples are actually denying that such unions are marriages. Virginia did not do this in regard to the marriage of Richard Loving and Mildred Jeter Loving. What it did do--and what the Court found to be unconstitutional--had to do with racial discrimination, not with marriage.
posted by Eve at 6:13 PM | link

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