SSM AND INTERRACIAL MARRIAGE: Eugene Volokh

...I oppose bans on interracial marriage because I think that race is literally only skin deep (with a very few exceptions, such as certain hereditary diseases that are more common in certain racial situations). A black-white couple is no different, morally or practically, from a white-white couple or a black-black couple. There is no inherent, either biological or very deeply rooted social, difference between a black parent and a white parent.

This is why almost all the possible justifications for bans on interracial marriage have to do with claims of racial superiority, or the felt need to maintain racial purity, which is impossible to justify without some judgments of racial superiority. The one potentially decent justification for such bans is that children of interracial marriage might be ostracized or even attacked by racist outsiders. But fortunately, over time this effect has substantially diminished, and in any event I think that usually (with some narrow exceptions that I might blog about in another context) the way the law should deal with the risk of racist reaction is to fight against it, not to give in to it.

But people's sex is not skin deep. Men and women are different biologically. To my knowledge, this difference reflects itself in substantial biologically driven differences in parenting styles, behaviors, emotional interactions, and the like; certainly there are at least some very deeply rooted social differences there, but I suspect that they're biological, too. Certainly given the current state of biological knowledge, the claim that there's a biological difference in men's and women's parenting styles is much more plausible than there's any such difference in blacks' and whites' parenting styles. ...

...I do think that it will probably be good for society to allow same-sex marriage; and I'm pretty sure it will be good for gays and lesbians. But the real differences between men and women (differences that aren't duplicated as to race) give me pause. So does the fact that the male-female marriage model has been broad, deep, and longstanding in our legal system in a way that bans of interracial marriage were not (see this post by Clayton Cramer; I often disagree strongly with him on issues related to homosexuality, but on the historical point I think he makes a lot of sense).

Constitutional: But, people say, what about Loving v. Virginia, the 1967 case in which the Supreme Court struck down bans on interracial marriage? Loving held that a law which considers a partner's race in deciding whether a marriage is allowed is a form of unconstitutional race discrimination (even if both whites and nonwhites are equally covered by the law). Later Supreme Court cases held that sex classifications are similar to race classifications. Therefore, a law which considers a partner's sex in deciding whether a marriage is allowed is a form of unconstitutional sex discrimination (even if both men and women are equally covered by the law). QED.

Not so fast: Analogies between race discrimination and sex discrimination are sometimes helpful, but often not. This is one case where I think they aren't.

To begin with, let me just make some observations that should remind us that race and sex discrimination are not the same. Consider these pairs of case: * Racially segregated restrooms; Men's rooms and women's rooms
* Racially segregated schools; Boys' schools and girls' schools
* Whites-only basketball teams; Girls-only basketball teams ...

What's more, though Loving did rest partly on the formal race-consciousness of bans on interracial marriage, it also stressed what was obvious to all the participants in the case: Bans on interracial marriage, like segregated restrooms or segregated schools, were part of an attempt to maintain white social and legal supremacy. Limitation of marriage to male-female couples is not an attempt to maintain the supremacy of any one sex.

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posted by Eve at 10:25 AM VOTE

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