SSM AND INTERRACIAL MARRIAGE: Gabriel Rosenberg replies to Eugene Volokh

Eugene Volokh has written an interesting post on why refusals to recognize same-sex marriage [are not the same as] refusals to recognize interracial marriage. He first distinguishes between race and sex by noting that race is only skin deep while there are deep biological and social differences between men and women. Eve Tushnet has recently made the same claim, and for the most part I agree with both of them on that matter. That still doesn't answer whether one should be able to use these differences as a basis to refuse to recognize one's marriage. For example, consider the case of religious faith. One's religion can certainly affect one's parenting style. Would Professor Volokh think it was legitimate for society to set up same-faith couples as the preferred, most legally and socially sanctioned mode and refuse to recognize interfaith marriages?

Professor Volokh also details the problems he has with the legal comparison. He notes that while "separate but equal" is not allowed in racial contexts, it is acceptable in some gender contexts. He notes that when there has been a problem with sex-based segregation it was because the schools or teams were viewed as unequal. Again I agree with this for the most part, but that does not end the matter. Volokh refers quite a bit to Loving v. Virginia, but I would be very interested in his views on Perez v. Sharp. Unlike Loving, Perez was decided in 1948 while "separate but equal" was still permitted for race. Yes, it was only a California Supreme Court decision, but I'm more interested in how persuasive Volokh finds the court's reasoning. The court reasoned that while two train cars could be equal, to a person desiring to marry their loved one no other person could serve as an equal replacement. Why wouldn't this logic carry over to gender?

In fact, the idea that what is "equal" should be viewed in terms of the person seeking equality and not as group judgments is quite important when it comes to sex discrimination. ...I find it hard to reconcile the belief that it's unacceptable to dictate one's professional opportunities based on sex with the view that it's somehow all right to dictate one's most intimate choice of spouse on this basis.

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posted by Eve at 10:29 AM VOTE

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