A critical look at marriage and its implications (1721)
Marriage is inherently and intrinsically connected with race and sexuality. Current bans on same sex marriage are reminiscent of anti-miscegenation laws as both test the fundamental right granted by the Constitution. The minority groups in both cases are marginalized as they are denied the right to choose their significant other, and in the current same sex instances, civil unions and domestic partnerships are used to mitigate this inequality. Although these “remedies” provide significant aid to same sex couples, the full benefits of marriage for them still remain unrealized. Marriage and socially constructed laws have been used as a suppressive tool by white supremacists and heterosexists against both interracial and same sex couples to legitimize and maintain power in society and politics in their respective groups.
Law is commonly mistaken as “solid” and “constant,” but in actuality, law is much more amorphous and is utilized to benefit and uphold those in power. Law is, in fact, subject to change over time and should not be viewed as a concrete concept. The fact that the laws in the Constitution can either be examined loosely, or strictly gives innate power to the judges to reflect their own values into law. In the case of same sex marriage, many judges manipulate the implications of laws by simply using the “tautological” or definition of marriage to oust same sex marriage out of the question. Denouncing same sex marriage from strict scrutiny on the account of the inability to accidentally procreate is an explicit example of judges abusing their power to loosely interpret or take the literal translation of the Constitution. In doing so, they inevitably self-perpetuate their own morals since judges and higher-ranking officials are primarily white heterosexuals. Naturally, they either consciously or subconsciously replicate their own ideals into law. An interesting article from the “Oxford journal of Legal Studies” explores and scrutinizes not only law as a social construct, but the concept of law as one as well. The author Schauer states, “understanding of the concept of law included, inter alia, the claim that such an understanding—an understanding that morality was a necessary condition for legality” (Schauer 493). In a sense, Schauer is trying to allude to the idea that morals cannot be separated from laws and that it is almost a prerequisite for establishing them. Schauer further investigates, “a society might, for example, create its understanding of law such that it understood law in an inextricably morally soaked way, with morality being a condition for legality in all possible legal systems in all possible worlds” (Schauer 501). This relates specifically as laws were and still are constructed against the liberation of minority groups, such as African Americans and homosexuals respectively, not overtly to deprive freedom but rather to maintain a stronghold of power. The Defense of Marriage Act, which only recognizes a marriage between a man and woman, is an example of a law inhibiting the progress of the marginal homosexual group. Paying close attention to the diction and syntax of the “Defense of Marriage Act,” it becomes apparent of the subliminal messages the government is trying to send. Utilizing the word “defense” gives a sense of protection against something detrimental; therefore, innately degrading homosexuality. “The inequality of marriage was one of the most potent weapons of bigotry used to prove apparent racial inferiority of non-whites, yet it is not only been utilized against minorities but homosexuals as well” (Pino 1). Having the ability to restrain and marginalize a group with the reinforcement of the law gives irrefutable supremacy and further accentuates the ascendency of those in control.White supremacists utilized marriage as an instrument of self-empowerment. As another case of “Defiant Ignorance” and “Compassion Deficit Disorder” the white hegemonic group alienates the subaltern blacks by disallowing their right to marry (Hancock 1). The fear of tainting and corrupting the white race fueled anti-miscegenation laws. Moreover, it was a loss of power resulting from blacks marrying into white families that terrified the white community as they saw it as an undoing of their dominance. Whites in power turned to outlawing interracial marriage to keep their race uncontaminated. In court, they argued that it was legitimate to uphold anti-miscegenation laws because it “preserved the racial integrity of its citizens [and] prevented the corruption of blood,” (Eskridge and Hunter 796). It was essentially, a plea to maintain white supremacy. The whites gain by prohibiting interracial marriage because it creates a sharper division between those in power and those without. In a sense, it is maintaining the socially constructed “common image” of whites. The white community viewed interracial marriage as a key or conduit for blacks to sabotage their supremacy and slowly disintegrate their hold of power. In Loving v. Virginia it became clearly evident that the racial classification imposed by white supremacists was unjust and illegitimate.
“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy” (Eskridge and Hunter 798).
It is important to recognize anti-miscegenation laws backed by white supremacist as not enacted against blacks, but rather a fissure that stratifies whites and inevitably is self-empowering. In the end, the Supreme Courts outweighed endorsing white supremacy with racial equality. “There can be no doubt that restricting the freedom to marry solely because of racial classification violates the central meaning of the Equal Protection Clause” (Eskridge and Hunter 798). Interestingly, the case of Loving v. Virginia can be perceived as a stepping-stone to same sex marriage equality, the barrier of anti-miscegenation has been broken and “just as old barriers have fallen, new groups long excluded from the institution want to join up” (Eskridge and Hunter 795). Racial exclusion in marriage was used as a medium of preserving and perpetuating white supremacy, but overcoming it sparked a rise to equality for same sex marriage.
Heterosexist society uses marriage to justify their power and delegitimize same sex marriage. In societal norms, a marriage is defined as having the potential to procreate between a man and a woman. Heterosexists believe that there is no unconstitutional sexual classification; involved, rather they deny the validity of homosexual marriages because “of the recognized definition of that relationship as one which may be entered into only by two persons who members of the opposite sex” (Eskridge and Hunter 801). Essentially, a same sex marriage is considered illegitimate because it does not fulfill the prerequisites that are molded and shaped by tradition and society. The government reflects these ideals “because both the state and the federal government tries to make marriage exclusively heterosexual, gays are forced to choose either civil unions or domestic partnership options in the states that allow them” (Pino 3). Statistically, the difference between civil unions and marriages is the benefits that coexist with specifically civil marriages, but there is an undermining motive, however, to utilizing civil unions. In the case Goodridge v. Department of Public Health heterosexist incentives became clear. The difference between civil unions and marriages, although seem rather semantic and meaningless, “the dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects demonstrable assigning of same-sex, largely homosexual, couples to second class status” (Eskridge and Hunter 124). Once again, the hegemonic heterosexist group is trying to maintain their “first class” position over homosexuals. The distinction between marriage and civil union seems to be intrinsically similar to the idea of “Separate but Equal.” Historically, “Separate but Equal” refers to the subtle oppression of having equality in “de jure” but in “de facto” they were marginalized and separated very similar to same sex couples. Furthermore, civil unions are indeed very similar to “opposite-sex” marriages, but the problem is that at the same time it further oppresses homosexuals by alienating and boxing them into different statuses. In the end, it seems that the “intangibles” of marriage seemed to lie within the realm of social recognition. Interestingly, the court in Goodridge v. Department of Public Health viewed marriage as a “function to create more stability and permanence in the relationship that cause children to be born” (131 Eskridge and Hunter). There were also studies that showed that growing up with both a mother and a father maximizes a child’s development and success, but although these problems might be true, the exclusion of gays does not further the heterosexists means of procreation and stability. “There are enough marriage licenses to go around for everyone” (135 Eskridge and Hunter). Proposition 8, or the California Marriage Protection Act, essentially limits marriage to opposite-sex couples, but the proposition does not affect domestic partnerships. This means that society, mainly heterosexists, is willing to give all the benefits of marriage to homosexuals except the social recognition of “the word.” Thus, it is evident that heterosexists are prejudice because they feel insecure and have a need to maintain their superiority.
Overcoming anti-miscegenation laws set a precedent for same sex couples to realize their oppression and strive for similar equality. In the case of interracial marriages, white supremacy and racial superiority tried to limit and enclose their own race from being blemished with any “impure blood.” Furthermore, “the institution of heterocentric and white supremacist ideology used marital inequality as a weapon of “defense” for traditional values concerning marriage.” (Pino 4) They utilized marriage as a conduit in which they could continuously suppress the advancement of minority groups. By keeping their own race untouched by others, there can be a clear separation between the white and non-white classes. Identification was essential to their supremacy. Laws were and continue to be bent, molded, constructed, and reconstructed to complement those in power. They justify, legitimize, and even legalize the oppression of marginalized groups. Similarly, marriage is used by heterosexists to identify and classify homosexual couples against heterosexual couples into a “first class” and “second class” basis. It can be perceived that both the white and heterosexist majorities feel a sense of anxiety and threat to their dominance as they try to use every means possible to sustain their hegemony or dominance. This injustice cannot continue, marriage is a fundamental right and this idea of “Separate but Equal” subtly imposed by heterosexists threatens history to repeat itself.
Work Cited
Eskridge, William. "The Constitutional Case: Discrimination." The Case For Same-Sex Marriage. New York: The Free Press, 1996. 153-182.
Eskridge, William. "A History of Same-Sex Marriage." The Case For Same-Sex Marriage. New York: The Free Press, 1996. 15-50.
Pascoe, Peggy. "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America." Journal of American History 83 (June 1996):44-69.
Eskridge, William. "Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive." 57 UCLA Law Review 1333. June 2010.
Hancock, Ange-Marie. "Intersectionality to the Rescue." Solidarity Politics for Millennials: A Guide to Ending the Oppression Olympics. 2011. 1-32.
Frederick Schauer
The Social Construction of the Concept of Law: A Reply to Julie Dickson
Oxford J Legal Studies (Autumn 2005) 25(3): 493-501 doi:10.1093/ojls/gqi024
Pino, David. "Elevation to Equality: A Critical Examination of Marriage Inequality Through Race and Sexuality." Web log post. The World of Pino. 6 Dec. 2010. Web. 12 Dec. 2010. <http://theworldofthepino.blogspot.com/2010/12/elevation-to-equality-critical.html>.
