The Blurring of the Lines: Children and Bans on Interracial Unions and Same-Sex Marriages
The Blurring of the Lines: Children and Bans on Interracial Unions and Same-Sex Marriages
Carlos A. Ball, 76 Fordham L. Rev. 2733 (2008) Available at SSRN: http://ssrn.com/abstract=1091586
The conservative critique of same-sex marriage is premised on the idea that men and women are different in essential and complementary ways and that these differences justify the denial of marriage to same-sex couples. One of the most important of these differences relate to the raising of children. The reasoning–which is found in the arguments of conservative commentators, in the briefs of states defending same-sex marriage bans, and in some of the judicial opinions upholding those bans–is that there is something unique to women as mothers and something (separately) unique to men as fathers that makes different-sex couples able to parent in certain valuable ways that same-sex couples cannot.
These arguments continue to resonate legally and politically because our laws and culture continue to think about sex/gender in essentialized and binary ways. In fact, one of the reasons why same-sex marriage is so threatening to so many is that the raising of children by same-sex couples blurs the boundaries of seemingly preexisting and static sex/gender categories in the same way that the progeny of interracial unions blur seemingly preexisting and static racial categories.
In Part I of this essay, I trace the historical roots of antimiscegenation laws with a particular focus on children. In doing so, I focus primarily on pre-revolutionary Virginia because that colony had the earliest and most comprehensive regulation of interracial intimacy and of the children that resulted from it. As I explain, the actual prohibition against interracial marriage in colonial Virginia was only one part of a complex and interlocking set of regulations that sought to cope with the growing number of individuals who did not naturally fit the category of either white or black.
In Part II, I draw a connection between the old arguments against interracial unions and contemporary arguments against same-sex marriages, again with a particular focus on children. My contention is that both antimiscegenation statutes and bans against same-sex marriage have been used to construct and reify essentialized and dualistic understandings of race and sex/gender.
Finally, in Part III, I critique the holding of many courts that Loving v. Virginia does not apply to the question of whether bans on same-sex marriage constitute impermissible forms of sex/gender discrimination. In particular, I question these courts’ conclusion that the old antimiscegenation statutes that applied equally to whites and blacks are distinguishable from the contemporary same-sex marriage bans that apply equally to men and women because, while the former laws were grounded in racial prejudice, the latter are not based on sex/gender prejudice. In doing so, I critique the contention, frequently advanced by states, that the bans against same-sex marriage are constitutional because they help provide children with optimal home environments.
2 Comments
It is no business of anyone when a male and female marry..regardless of their ‘race’ or ‘religion’ or even one being a red sox fan..Teddy Roosevelt ,upon visiting south america complimented the way the people down there accepted mariages by those of one ‘race’and another! The pc bit of male to male etc is totally diferent…for we then have a learned response to either an absent father etc when growing up and the boy has a mommy complex..he cant make it with a gal for his moms..or sisters .or aunts or teachers image interferes..lets face it..from birth to the 8th grade boys adore their mom and then have from K thru 8th female teachers…so its no wonder when the juices flow in the frosh year..he gets confused….inter-racial bias is a true hate crime and I say God bless any two that love each other and marry..I even married an Irish-American gal and me being Italo_American..now that took courage…Nino
Same sex marriage goes against the natural laws of nature. A species cannot thrive under these conditions. The global warming alarmists warn us about the perils from messing with nature. What about the same sex proponents… does nature count?
For as long as life existed on this planet, with few exceptions, life could not thrive unless at least one from each sex were involved.
Like global warming and polution, we are just not smart enough to know what the results will be from blurring the lines of nature. Race does not play a part in this.