Final Paper

 Law and The Fight for Marriage Rights

Word Count: 1636

The legislative and political history of marriage in America has been marked by numerous turbulent court cases driven by religion and other hegemonic forces seeking to maintain their societal influence. The hegemon, comprised of the White, Christian, Straight, and middle-class population, has used its power and societal standing to write and pass legislation infringing on the rights of people of color and sexual minorities in order for their demographic to remain at the top of society and with the most political and legal power. Notably, the fight for interracial marriage preceded the push for same-sex marriage, enabling the pro-LGBTQ+ movement to incorporate rhetoric from the interracial marriage debate to bolster their efforts in securing rights for same-sex marriage. Ultimately, the key determinant of “victory” in both fights revolves around whether the government can dictate or control what happens in the privacy of one’s home. Utilizing scholarly perspectives presented by Cott, Pascoe, and Eskridge, this paper will examine the repercussions of, and legal parallels between, the struggle to legalize interracial and same-sex marriages and how political and cultural obstacles make it likely that the LGBTQ+ community will remain excluded from full recognition as “equal citizens" in the United States for the foreseeable future.

The right to marry whomever one desires, a seemingly straightforward yet intensely contentious and debated aspiration, served as the basis for two highly polarized legal battles: the quest for interracial marriage rights and the pursuit of marriage rights for same-sex couples. According to Cott in her essay “Injustice for All,” “Marriage has been a means of social ordering, an instrument that keeps in place the social order sanctioned by public authority. In the United States, the institution of marriage has been a powerful instrument of gender order and racial ordering” (Cott 78). Since marriage serves as a way to maintain social order, it should not come as surprising to learn the demographic who opposed progress towards marriage equality: the hegemon –who sought to restrict interracial marriage with the intention of maintaining their position in the highest echelon of societal power. Racial purity and the preservation of superficial societal dominance served as the reasons why interracial marriage was highly disputed. The battle to eliminate anti-miscegenation laws from state regulation became actualized in the monumental court case Loving v. Virginia (1967), which witnessed the overruling of Pace v. Alabama (1883), a case that criminalized interracial adultery. Loving’s lawyers argued and emphasized two key points: “Miscegenation laws violated both the constitutional guarantee of equal protection under the laws and the constitutional protection of the fundamental right to marry” (Pascoe 66). The Supreme Court declared anti-miscegenation laws unconstitutional, asserting that the fundamental right to marry is protected for all individuals regardless of race. Furthermore, the ruling marked a significant step toward restricting government intrusion into private life. Subsequent advocates for same-sex marriage invoked similar arguments to those of Loving’s lawyers, asserting that marriage is a fundamental right and laws restricting it are inherently unconstitutional, regardless of one’s morals. Despite the idea of marriage bans being unconstitutional, cultural ideologies continue to preserve the social hierarchy in regard both race and sexuality. As my peer and colleague point out in their essay titled “Marriage isn’t the Problem, “While interracial marriage bans were invalidated, the specific way they did so encourages [idealizing] marriage as a system that upholds [social] hierarchies. By controlling who gets married, the law effectively diminished the citizenship of people of color, denying them the ability to remove wrongful stereotypes pushed upon them, something that will repeat later with anti-LGBT laws” (Wells). 

After weathering a series of tumultuous legal battles, with the opposition motivated by “religious morality,” the LGBTQ+ community succeeded in their quest for equal representation within the legal system concerning marriage. However, sociocultural ideologies of the LGBTQ+ community continue to pose obstacles, perpetuating a sense of inequality to this day. Just as racism fueled the campaign against interracial marriage, religion played a pivotal role in the opposition to same-sex marriage. Despite the notion of the Church and State being separate, America has seen religion successfully being used as reasoning behind explicitly homophobic legislation, with many of the religiously devout population “deeply concerned” about private affairs. Eskridge adds, “Judaism and Christianity could not possibly sanction any marriage between persons of the same sex because of the vehement condemnation in the scriptures of both religions of all homosexual relationships” (Eskridge 805). One could attribute the thousands of casualties resulting from the AIDS crisis directly to the strong grasp religion had on American politics in the 1980s. Prior to Griswold v. Connecticut, contraceptives were viewed as morally wrong due to religious teachings—these same teachings would result in collective ignorance on how sexually transmitted diseases spread, in turn, contributing to the death of thousands of homosexual men in the 80s. In addition, the legalization of contraceptives underscored the importance of accessibility to private healthcare and privacy from the government altogether. However, despite this step in the right direction, many states still have laws and regulations that inhibit progress for the LGBTQ+ community. For instance, Tennessee enforces a “lifetime registration as a ‘violent sex offender’ if convicted of engaging in sex work while living with HIV,” as reported by NBC News in an article titled “Tennessee’s penalties for HIV-positive people are discriminatory, DOJ says.” In a statement from the Assistant Attorney General at the Justice Department’s Civil Rights Division, it was emphasized that “Tennessee’s aggravated prostitution law is outdated, lacks a basis in science, discourages testing, and further marginalizes people living with HIV. Individuals with HIV should not be branded as violent sex offenders for life solely due to their HIV status.” Efforts are currently underway to eliminate this oppressive regulation, with the American Civil Liberties Union and the Transgender Law Center filing a lawsuit to overturn the law in federal court. Outdated regulations like this one, persist in many states, disproportionately affecting LGBTQ+ individuals and perpetuating otherness. Sex work is already a highly stigmatized career path that will likely remain frowned upon in the foreseeable future. In an essay titled “Alcohol, Drug, and Criminal History Restrictions in Public Housing,” it is pointed out that “Prostitution, along with all the associated mechanisms, is fully criminalized in every state. As LGBTQ communities face disproportionately higher levels of policing, prostitution laws often play a significant role in this over-policing and incarceration. For youth, LGB young women are twice as likely, and LGB young men are ten times as likely, to be incarcerated in juvenile detention for prostitution charges compared to their peers.”

These statistics highlight the disproportionate representation of LGBTQ individuals in sex work. In agreement with life-determining regulations punishing sex work, they further emphasize the sentiment that the LGBTQ+ community is not treated as equal.

The battle for same-sex marriage, to put it simply, was the overturning of blatantly oppressive legislation that was catalyzed by bigoted ideologies, paralleling the legal fight for interracial marriage. Utilizing the progressive rhetoric from the fight for interracial marriage, advocates for same-sex marriage equality eventually overcame opposition through numerous court victories. Some of the most influential and vital cases include Goodridge v. Department of Public Health, Lawrence v. Texas, and Obergefell v. Hodges; these cases argue that discrimination against same-sex marriage violates equal protection clauses. The case Obergefell v. Hodges (2015) marks the time in history when the LGBTQ+ community finally obtained legal recognition nationally and the freedom to marry whomever they wanted. It is noteworthy that laws and regulations reflect the socio-cultural landscape of a time; in Cott’s view, “The specific legal practices of a culture are simply dialects of a parent social speech and… studying the speech helps you understand the dialect and vice versa” (Cott 79). If, according to Cott, legal decisions reflect the social attitudes of a period, was 2015 really the first time LGBTQ+ people could be legally validated? Should we live life believing that all significant issues will eventually be resolved in due time? With recent rulings of cases such as 303 Creative LLC v. Elenis and Masterpiece Cakeshop v. Colorado Civil Rights Commission, it is reflected that LGBTQ+ discrimination still permeates America. A recent surge of anti-LGBTQ+, more specifically anti-Trans, legislation further defines LGBTQ+ standing in society. There is an evident population of people who, once again, are using religion and the accompanying morals to alienate sexual minorities further. The case 303 Creative LLC v. Elenis presents a highly nuanced and polarizing topic, as it is the intersection of “anti-discrimination law in public accommodations with the Free Speech Clause of the First Amendment to the United States Constitution.” The ruling, favoring 303 Creative LLC, resurfaces the argument between public and private regulation and ultimately allows explicitly discriminatory behaviors to be justified by the excuse of them simply being a part of someone’s morals. This setback in progress is dangerous for the LGBTQ+ Community, along with all other minorities, as it provides an excuse for oppressive rhetoric. It also furthers the sentiment that LGBTQ+ individuals remain unequal in society. Progress has made it possible for White, Cis LGBTQ+ individuals to live an “equal” life, but collectively, society still deems us as less-than. Will this reality ever shift in favor of the subaltern? To that, I answer: no, not in the near future. The way in which society is foundationally constructed forces the binary opposition of hegemon/subaltern, a reality that makes complete equality of a minority virtually impossible. For this reason, the LGBTQ+ Community, along with every other community that experiences systemic oppression, will never be fully “equal” in society.

In conclusion, the struggle for legalizing interracial marriage laid the legal groundwork subsequently employed in the fight for same-sex marriage. The current strides toward equality result from the pioneers in our history who fought for the LGBTQ+ community. However, this work remains incomplete and may never reach an entirely satisfactory state.

Sources Cited

Alex Wells (2023). "Marriage isn't the problem".  https://alexsverycoolblogfys6.blogspot.com/2023/12/final-essay.html 

Griswold v. Connecticut. (2023, September 19). In Wikipedia. https://en.wikipedia.org/wiki/Griswold_v._Connecticu 

Obergefell v. Hodges. (2023, November 9). In Wikipedia. https://en.wikipedia.org/wiki/Obergefell_v._Hodges

Goodridge v. Department of Public Health. (2023, October 4). In Wikipedia. https://en.wikipedia.org/wiki/Goodridge_v._Department_of_Public_Health 

Loving v. Virginia. (2023, November 17). In Wikipedia. https://en.wikipedia.org/wiki/Loving_v._Virginia 

303 Creative LLC v. Elenis. (2023, November 27). In Wikipedia. https://en.wikipedia.org/wiki/303_Creative_LLC_v._Elenis 

Curtis, M.A., S. Garlington, and L. Schottenfeld. (2013). “Alchohol, Drugs and Criminal History of Restrictions to Public Housing.” Cityscape: A Journal of Policy Development and Research

The Associated Press. “Tennessee’s Penalties for HIV-Positive People Are Discriminatory, DOJ Says.” NBCNews.Com, NBCUniversal News Group, 1 Dec. 2023, www.nbcnews.com/nbc-out/out-news/tennessees-penalties-hiv-positive-people-are-discriminatory-doj-says-rcna127706 

Pascoe, Peggy “Miscegenation Law, Court Cases, and Ideologies of "Race" in Twentieth-Century America” The Journal of American History; Jun 1996

Cott, Nancy F. “Justice for All? Marriage and Deprivation of Citizenship in the United States.” Justice and Injustice in Law and Legal Theory, 1998, 

William N. Eskridge, Jr. “The Expanding Right to Marry.” Sexuality, Gender, and The Law, 1997