The blurring of the lines: Children and bans on interracial unions and same-sex marriages

Fordham Law Review

Volumn 76, Issue 6, 2008, Pages 2733-2770

  Ball, Carlos A ^a,b  

^a PENNSYLVANIA STATE UNIVERSITY   (United States)

^b Lewis and Clark Law School

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EID: 46049106534     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (162)

1. Phyl Newbeck, Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving 10-11 (2004).
2. Id. at 15.
3. Id.
4. Loving v. Virginia, 388 U.S. 1 (1967).
5. See infra Part I.
6. The term "sex" is usually understood to capture what can be thought of as the natural (or biological) differences between men and women, while "gender" is usually taken to refer to those cultural norms and expectations that accompany (and constitute) a male or female identity. See Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 Cal. L. Rev. 1, 21 (1995) ("[S]ex denotes bio-physical aspects of personhood associated with 'man' and 'woman' while gender denotes the social constructions understood as 'male' and 'female' or 'masculine' and 'feminine.'"). I agree, however, with those commentators who argue that the disaggregation of "sex" from "gender" often helps to shield sex-based distinctions from critique and analysis.
7. As Professor Katherine Franke eloquently writes, In many cases, biology operates as the excuse or cover for social practices that hierarchize individual members of the social category "man" over individual members of the social category "woman." In the end, biology or anatomy serve as metaphors for a kind of inferiority that characterizes society's view of women. Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 3 (1995);
8. see also David B. Cruz, Disestablishing Sex and Gender, 90 Cal. L. Rev. 997, 1008 (2002) ("Too often . . . the history of sex/gender classification in the United States has been marked by the displacement of human responsibility for normative judgments to 'facts' of Nature.").
9. My discussion in this essay of questions related to sex and gender revolve around the intersection of marriage and parenting. In my estimation, it is unhelpful in this context to disaggregate "sex" from "gender" because the distinct cultural expectations of mothers and fathers (i.e., issues of "gender") are inextricably linked to what are largely taken to be natural or intrinsic differences (i.e., issues of "sex") between men and women. In fact, I have elsewhere explained how opponents of parenting by lesbians and gay men often conflate supposedly sex-specific and natural parenting attributes of men and women with externally imposed social norms and expectations that assign distinct roles and responsibilities to male and female parents. See Carlos A. Ball, Lesbian and Gay Families: Gender Nonconformity and the Implications of Difference, 31 Cap. U. L. Rev. 691, 708-20 (2003); see also infra note 100 (explaining how the frequent and simultaneous deployment of procreation-based arguments and dual-gender parenting-based arguments against same-sex marriage conflates the concepts of "sex" and "gender"). It is for this reason that in this essay I use the term "sex/gender" rather than (1) use "sex" and "gender" interchangeably, or (2) use both words separately to capture potentially different meanings.
10. The way in which society treats and regulates transgendered and intersexed individuals also contributes to the reification of sex/gender labels as essentialized, natural, and predetermined categories. In fact, Marie-Amèlie George has analogized between the ways in which mulattoes in the American antebellum South challenged an essentialized and binary understanding of race and the ways in which intersexed individuals in contemporary America challenge an essentialized and binary understanding of sex/gender. See Marie-Amèlie George, The Modern Mulatto: A Comparative Analysis of the Social and Legal Positions of Mulattoes in the Antebellum South and the Intersex in Contemporary America, 15 Colum. J. Gender & L. 665, 679 (2006) ("Similar to mulattoes, the intersex are not accepted as a third or variant category, but rather are altered so as to fit within preconceived notions of what sex is and should be."). George suggests that [o]ne of the reasons why race [today] may be accepted as constructed, while sex continues to be seen as fixed, is that racial fluidity is more visible. Variations in skin color and tone are readily perceptible, while ambiguities in genitalia are easily hidden. This helps explain why sexual binaries have not been questioned until recently, while racial categories have been suspect for decades. Id. at 666 n.3.
11. See infra notes 99-113 and accompanying text.
12. See infra note 86 and accompanying text.
13. See infra notes 99-101 and accompanying text.
14. See infra notes 99, 106 and accompanying text.
15. Andrew Koppelman has noted the psychological and sociological similarities between racism and the antimiscegenation taboo, on the one hand, and sexism and the homosexuality taboo, on the other. See Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 220-73 (1994). Although Koppelman's analysis is extensive and sophisticated, he does not, as I do in this essay, explore the ways in which the purported links between marital bans (both interracial and same-sex) and children have been used to reify essentialized and dualistic understandings of race and sex/gender.
16. See Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage, and Law - An American History 15 (2002).
17. There is evidence of public condemnation of those who engaged in fornication prior to 1662 in Virginia. It is unclear, however, whether racial factors added to the intensity of that condemnation. See A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 Geo. L.J. 1967, 1989 (1989) (noting that "[i]n Virginia before the 1660s . . . [t]here were several instances of public condemnation of couples who engaged in interracial sex, but the importance of the race factor was unclear").
18. Id. at 1990-92 (providing several examples of the equal treatment).
19. Negro Womens Children to Serve According to the Condition of the Mother [hereinafter Negro Womens Children], in 2 The Statutes at Large; Being a Collection of All the Laws of Virginia 170 (William Waller Hening ed., 1823) [hereinafter Laws of Virginia]. "Whereas some doubts have arisen whether children got by any Englishman [i.e., white man] upon a negro woman should be slave or ffree, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shalbe held bond or free only according to the condition of the mother . . . ." Id. (emphasis omitted). Higginbotham and Kopytoff note that "[t]he law of the inheritance of slave status was a response to the question of how to classify the children of white men and slave women." Higginbotham & Kopytoff, supra note 14, at 2006.
20. Higginbotham & Kopytoff, supra note 14, at 1971 n.20.
21. Joel Williamson, New People: Miscegenation and Mulattoes in the United States 8 (1980) (noting that children of slave mothers constituted "a large proportion (perhaps more than half) of the mulattoes in Virginia"). Williamson suggests that, unlike in later centuries, the majority of interracial children born in Virginia in the seventeenth century were conceived as a result of sexual contact between white male servants (both voluntary and involuntary) and black female slaves, as opposed to as a result of sexual relationships between white men and their slaves. Id. at 7; see also Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America 44-45 (1998) ("Bastardy lists suggest that the largest source of mixed-race children in the seventeenth-century Chesapeake was not the imposition of white planter men on black slave women but the relations of black slaves and white servants."). But see Charles Frank Robinson II, Dangerous Liaisons: Sex and Love in the Segregated South 3 (2003) (noting that, in seventeenth-century Virginia, "most interracial sexual relations involved intercourse between white masters and slave women").
22. See Higginbotham & Kopytoff, supra note 14, at 1996 (noting the concern of white Virginians with "the dangers in the possible alliances of free negroes and mulattoes with slaves").
23. See id. at 1994 n.127 ("The early uncertainty over the status of blacks was being resolved in ways that kept increasing numbers of them in lifetime servitude and sealed the same fate for most of their children.").
24. See id. at 2006 (noting that the 1662 statute "provided slaveowners with easy and cheap ways to increase the number of slaves they held"). In addition, as a result of the enactment of the 1662 statute, "[w]hite men could now be certain that their sexual behavior across the color line would not threaten the institution of slavery." Robinson, supra note 18, at 3.
25. The statute stated "that if any christian [i.e., white person] shall committ ffornication with a negro man or woman, hee or shee soe offending shall pay double the ffines imposed by the former act." Negro Womens Children, supra note 16, at 170. The fine called for by "the former act" was five hundred pounds of tobacco. Higginbotham & Kopytoff, supra note 14, at 1993. Notice that the statute punished the white party but not the black one. For the next two hundred years, Virginia law sought to punish only the white person for engaging in sexual intimacy with a black person. It was not until 1878 that Virginia punished both the white and the black parties for violating its antimiscegenation law. See Wallenstein, supra note 13, at 100. To a certain extent, it makes sense that the law did not punish slaves for engaging in intimate relationships with whites. As Higginbotham and Kopytoff note, [i]t might have been seen as bad policy or unreasonable to punish a slave for acquiescing to the demands of his or her master, even to demands for illicit behavior. In addition, many of the usual punishments were meaningless when imposed on slaves or would result in punishing their masters. Years could not be added to life-long servitude; slaves could not be fined if they owned no property; and imprisonment would have deprived their masters of their work. Higginbotham & Kopytoff, supra note 14, at 2000 (footnote omitted). It is less clear why the law would not have sought to punish free blacks and mulattoes for engaging in sexual relationships with whites. Higginbotham and Kopytoff suggest that [p]erhaps whites were so secure in their position of power and superiority that they assumed such relations would not occur unless initiated by whites. After the early years of the colony, as the lines of the racial caste system hardened, the freedom of choice of blacks was ignored in this as in so many other areas of life. Id. at 2001.
26. Higginbotham & Kopytoff, supra note 14, at 1994; see also Jason A. Gillmer, Suing for Freedom: Interracial Sex, Slave Law, and Racial Identity in the Post-revolutionary and Antebellum South, 82 N.C. L. Rev. 535, 559 (2004) ("If interracial intimacy was troubling to many because of its sheer physical aspects, . . . it also was troubling because of the inevitable product.").
27. See supra note 16 and accompanying text.
28. As Martha Hodes notes, When white women had children with black men, two important social categories were eroded: racial categories were eroded because the children would be of mixed European and African ancestry, and categories of slavery and freedom were eroded because free people of African ancestry endangered the equation of blackness and slavery. Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South 4 (1997).
29. See Higginbotham & Kopytoff, supra note 14, at 1997 ("Black women who produced mulatto children were not seen as making the same direct assault on white racial purity; they were unable to produce white children and thus did not affect the white race. There was no comparable concern over their 'lightening' of the Negro race.").
30. See id. at 2007 ("Once Virginians had made the decision to classify mulattoes with blacks, the mulatto child of a white mother was an assault on racial purity.").
31. See Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption 221 (2003) ("White women were anointed as the primary gatekeepers of white racial purity, and as such, they became the members of the white community who could, with self-evident justice, be most severely penalized for racial transgressions.").
32. See Robinson, supra note 18, at 8 ("On Virginia's eastern shore between 1664 and 1677, five of the ten households headed by free black men seem to have also had white women present as wives.").
33. 388 U.S. 1 (1967). The antimiscegenation provision was part of a broader statute - called "An Act for Suppressing Outlying Slaves" - that sought to deter alliances between free and enslaved blacks. Another provision of the statute, for example, imposed on owners who wanted to free their slaves the obligation of paying for the costs of transporting them beyond the boundaries of the colony. See Higginbotham & Kopytoff, supra note 14, at 1996. As Higginbotham and Kopytoff note, however, "[W]hite Virginians seemed not to realize . . . that they had greatly increased the danger of alliance by classifying most mixed race individuals with blacks rather than with whites in terms of their legal rights." Id. at 1996-97.
34. An Act for Suppressing Outlying Slaves, in 3 Laws of Virginia, supra note 16, at 86, 86-87 (emphasis added). In 1705, the legislature amended the statute in order to permit the marriage between a white person and a Native American. See id. at 453. In the eighteenth and early nineteenth centuries, some legislators proposed bills - most of which were not enacted - to try to encourage marriages between whites and Native Americans. "The motivation behind these bills was probably a desire to mitigate the danger of Indian attacks on the frontier." Higginbotham & Kopytoff, supra note 14, at 1996 n.133 (citation omitted).
35. Higginbotham & Kopytoff, supra note 14, at 1995. In 1705, the Virginia Assembly changed the punishment for entering into an interracial marriage from lifetime banishment to six months in prison for the white party. Wallenstein, supra note 13, at 18. It has been suggested that this new penalty was a "more effective deterrent to racial intermarriage among ordinary people," and one that did not, after the period of incarceration was completed, deprive the colony of laborers. Edmund S. Morgan, American Slavery American Freedom: The Ordeal of Colonial Virginia 335 (1975). The 1705 statute also protect[ed] the economic investment of slave owners and denied the human rights of the slave. If a master killed his slave during correction, it would not be a felony; any Negro, mulatto, or Indian who struck a white person would get 30 lashes. Slaves could not travel, own cattle, or bear arms. In order to make an example of them, runaways could be dismembered. Karen Woods Weierman, "For the Better Government of Servants and Slaves": The Law of Slavery and Miscegenation, 24 Legal Stud. F. 133, 137 (2000). The 1705 amendment, then, like its 1691 counterpart, see supra note 31, was part of a broader statute that sought to entrench and protect the institution of slavery.
36. 3 Laws of Virginia, supra note 16, at 87. "Be it enacted . . . that . . . whatsoever English or other white man or woman being free shall intermarry with a negroe, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever . . . ." Id. (emphasis omitted).
37. See Kathleen M. Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia 199 (1996) ("Very few white men were prosecuted for interracial sexual misconduct [between 1680 and 1710], and none was punished.").
38. As Wallenstein notes, "If the bride in the interracial couple was white, then she would vanish from Virginia, and her mixed-race child would be born and raised outside Virginia." Wallenstein, supra note 13, at 16.
39. Robinson, supra note 18, at 2 (internal quotation marks omitted).
40. See Koppelman, supra note 12, at 225 ("The [antimiscegenation] taboo connoted a narrative in which black men represented a dangerous, predatory, uncontrollable sexuality, and white women represented a fragile, asexual purity, the protection of which was the special duty of white men."); see also Robinson, supra note 18, at 6 ("[Male colonists] felt it necessary to control women sexually, for by doing so, they believed that they curtailed the likelihood of rampant societal sexual deviance.").
41. Morgan, supra note 32, at 336; Robinson, supra note 18, at 6.
42. Higginbotham & Kopytoff, supra note 14, at 1997.
43. See supra note 31 and accompanying text.
44. 3 Laws of Virginia, supra note 16, at 87. The law did not punish black women who bore mulatto children, suggesting once again that white Virginians were not particularly troubled by the idea of sexual intimacy between white men and black women. White women who had illegitimate children as a result of having sexual contact with white men were also subject to criminal penalties, but they were considerably less harsh than those that applied when the fornication led to the birth of an interracial child. For example, a law enacted in 1696 provided that if an indentured servant woman had a bastard (presumably not a mulatto), she had to give only one extra year of service to her master, in addition to a fine for fornication, which was "five hundred pounds of tobacco and casque" or 25 lashes. Higginbotham & Kopytoff, supra note 14, at 1996 n.138 (citing An Act for Punishment of Ffornication and Seaverall Other Sins and Offences, in 3 Laws of Virginia, supra note 16, at 137, 139-40). Higginbotham and Kopytoff add that "[i]f a free white woman bore a white bastard, there was no punishment beyond that for fornication until 1769, when she had to pay 20 schillings." Id. (quoting An Act for the Relief of Parishes from Such Charges as May Arise from Bastard Children Born Within the Same, in 8 Laws of Virginia, supra note 16, at 376.
45. Wallenstein, supra note 13, at 16 ("[If the mother] was an indentured servant, the law did not mean to punish her owner by denying him her labor (and thus his property). If she was a servant and thus not the owner of her labor at the time of the offense, her sale for five years would take place after she had completed her current indenture.").
46. Id. at 16-17. In 1705, the assembly added a year to the period of servitude for the interracial children of white mothers born out of wedlock. Id. at 18. In 1723, the legislature sought to regulate the status of the children of the interracial daughters of white mothers. These grandchildren of the original violator of the law also had to serve an indenture period of thirty or thirty-one years (depending on how many years were served by their mothers). Id. "In effect, a third category had been established with reference to the 1662 law, and just as slave women bore slave children, and free women bore free children, these mixed-race long-term servants bore mixed-race long-term servants." Id. Virginia was by no means alone in enacting these types of laws. In 1664, Maryland became the first colony to adopt a law condemning interracial marriage, although that provision only applied to unions between white women and black men. See Weierman, supra note 32, at 141. The statute expressed the legislature's disapproval of "freeborne Englishwomen [who were] forgettful of their free Condition and to the disgrace of our Nation doe intermarry with Negro slaves." Peter W. Bardaglio, "Shameful Matches": The Regulation of Interracial Sex and Marriage in the South Before 1900, in Sex, Love, Race: Crossing Boundaries in North American History 112, 114 (Martha Hodes ed., 1999). The law decreed that a white woman who married a slave had to become a servant of her husband's owner (for as long as the husband was alive) and that her children "shall be slaves as their fathers were." Weierman, supra note 32, at 141. In 1692, the Maryland legislature also prohibited marriages between white men and black women, id. at 142, and required that white women who had illegitimate interracial children be indentured as servants for seven years, Bardaglio, supra, at 114. As for the interracial children of white women, Maryland law called for their indenture until the age of thirty-one. Weierman, supra note 32, at 142. It was not just southern colonies that enacted laws regulating interracial sexuality and the children resulting therefrom. Under a Pennsylvania law dating to the 1720s, for example, a free black man who married a white woman could be sentenced to serve as a slave for the rest of his life. Wallenstein, supra note 13, at 40. And, as in Virginia and Maryland, children of unmarried interracial couples could be sold as servants for the first three decades of their lives. Id. Although Pennsylvania repealed its antimiscegenation law shortly before Independence, Massachusetts reenacted the colonial version of its antimiscegenation law after it became a state. Id. at 41. The original antimiscegenation law enacted by colonial Massachusetts in 1705 echoed the language used by the Virginia statute of 1691, see supra note 31 and accompanying text, calling for the prevention of "a Spurious and Mixt Issue," Wallenstein, supra note 13, at 42. For its part, North Carolina's antimiscegenation law of 1741 quoted verbatim from the Virginia law of 1691, condemning interracial marriages because they led to an "abominable Mixture and spurious issue." Id.
47. Kathleen Brown has documented the increase in prosecutions for interracial bastardy after the enactment of the 1691 statute. In a study of court records from three Virginia counties, Brown found that such prosecutions went from less than ten percent of the cases in the 1680s, to seventeen percent in the 1690s, to nearly thirty percent by the 1700s. Brown, supra note 34, at 198-99.
48. Wallenstein, supra note 13, at 17. The Virginia antimiscegenation statute remained largely unchanged during the eighteenth century and the first half of the nineteenth century. In 1849, however, the Virginia legislature for the first time declared that all interracial marriages were void ab initio. See Higginbotham & Kopytoff, supra note 14, at 1996 n.135 (citing Va. Code ch. 109, § 1 (1849)). Prior to 1849, while the white spouse in an interracial marriage was subject to incarceration and a fine, the marriage itself was not invalid. The fact that the marriage remained valid was important not only for the couple, but also for the children, who were spared the additional social and legal disabilities associated with illegitimacy. Beginning in 1849, however, all of the children of interracial couples in Virginia were deemed illegitimate as a matter of law.
49. Higginbotham & Kopytoff, supra note 14, at 2005 (footnote omitted).
50. See id. ("[T]he idea of a racially based system of slavery depended on a clear separation of the races."); Winthrop D. Jordan, White over Black: American Attitudes Toward the Negro, 1550-1812, at 178 (1968) ("For the separation of slaves from free men depended on a clear demarcation of the races, and the presence of mulattoes blurred this essential distinction.").
51. For example, the number of so-called mulattoes in the United States the year that the Civil War began was "more than a half million people - or twelve percent of the people of color . . . . Fifteen percent of the people of color in Virginia were listed [in the 1860 census] as mulattoes, and the number rose as high as twenty percent in Missouri and Kentucky." Gillmer, supra note 23, at 558-59 (footnotes omitted).
52. In 1806, the Virginia Supreme Court held that the burden of proof in slave freedom suits would be allocated according to racial appearance. Hudgins v. Wrights, 11 Va. (1 Hen. & M.) 134, 140 (1806). If the plaintiffs appeared to be white or Native American, they were presumed to be free. On the other hand, if they appeared to be black, they were presumed to be slaves. Id. This was not an easy rule to apply, however, leading one of the judges on the court to complain that "[w]hen . . . these races become intermingled, it is difficult, if not impossible, to say from inspection only, which race predominates in the offspring." Id. at 141 (Roane, J., concurring); see also Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 Yale L.J. 109, 111-12 (1998) ("Despite the efforts of legislatures to reduce racial identities to a binary system, and of judges to insist that determining race was a matter of common sense, Southern communities harbored disagreement, suspicion, and conflict . . . over who was black and who was white . . . .").
53. Wallenstein, supra note 13, at 19. The legal definition of a white person was an implied one. The 1785 law explicitly defined a "mulatto" as someone who had at least one-fourth African ancestry. Higginbotham & Kopytoff, supra note 14, at 1978. By implication, therefore, anyone with less than one-fourth of such ancestry was considered legally white. An earlier statute, enacted in 1705, defined a "mulatto" as someone who was of mixed-race and had at least one-eighth African ancestry. Wallenstein, supra note 13, at 17. Virginia was one of two colonies (the other was North Carolina) that sought to assign racial identity through a statute. Higginbotham & Kopytoff, supra note 14, at 1976 & n.42.
54. Wallenstein, supra note 13, at 137. As with the 1785 law, the 1910 statute provided a legal definition of a white person by implication, that is, through a codification of who qualified as a "mulatto."
55. Id.
56. Id. at 139.
57. The 1924 statute constituted the first time that the Virginia legislature explicitly defined who qualified to be white as a matter of law. Higginbotham & Kopytoff, supra note 14, at 1980 n.61. The law exempted from the "one-drop" rule those who had one-sixteenth or less of Native American ancestry. This exception, known as the "Pocahontas exception," was an effort to accommodate those "white Virginians [who] had long admitted, even celebrated, their descent from the seventeenth-century union between Pocahantas and John Rolfe." Wallenstein, supra note 13, at 139 (internal quotation marks omitted). For a discussion of the Pocahontas exception and, more generally, of the regulation (and sometimes promotion) of intimate relationships between whites and Native Americans, see generally Kevin Noble Maillard, The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law, 12 Mich. J. Race & L. 351 (2007).
58. Randall Kennedy explains the motivation behind the adoption of the "one-drop" rule as follows: The one-drop rule at once precluded the formal recognition of intermediate racial castes, assuaged anxieties about the perceived loss of racial purity, facilitated racial-group solidarities, and stigmatized any form of white-black amalgamation. It also vividly reflected and animated Negrophobia by suggesting, essentially, that no matter how white a person might appear, even the tiniest dab of Negro ancestry was sufficiently contaminating to make him a "nigger." Kennedy, supra note 28, at 223.
59. In 1927, the Georgia legislature amended the definition of "persons of color" for purposes of its antimiscegenation law. The previous statutory provision had defined such persons as those who were at least one-eighth black. The new law defined such persons as "having any ascertainable trace of nonwhite ancestry." Wallenstein, supra note 13, at 137 (internal quotation marks omitted). In order to qualify as "Caucasian," individuals needed to have "no ascertainable trace of Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins." Id. (internal quotation marks omitted). For its part, Alabama in 1907 changed the definition of a "mulatto" from someone who had at least one-eighth African ancestry - a definition that had been on the books for half a century - to someone who had at least one thirty-second of such ancestry. Id. at 141. Twenty years later, Alabama changed the law again to define a "negro" as a person who "descended on the part of the father or mother from negro ancestors, without reference to or limit of time or number of generations removed." Id. (internal quotation marks omitted).
60. Id. at 140.
61. 388 U.S. 1, 6 n.5 (1967) (listing the states). More than half the states still had antimiscegenation laws in the mid-1950s. Naim v. Naim, 87 S.E.2d 749, 753 (Va. 1955).
62. The trial judge in Loving upheld the constitutionality of the antimiscegenation statute by noting, Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. Loving v. Virginia, 388 U.S. 1, 3 (1967) (internal quotation marks omitted). Almost a century earlier, another Virginia judge defended the antimiscegenation law in strikingly similar terms: The purity of public morals, the moral and physical development of both races, and the highest advancement of our cherished southern civilization, under which two distinct races are to work out and accomplish the destiny to which the Almighty has assigned them on this continent - all require that they should be kept distinct and separate, and that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion. Kinney v. Virginia, 71 Va. (30 Gratt.) 858, 869 (1878); see also State v. Gibson, 36 Ind. 389, 405 (1871) ("The natural separation of the races is . . . an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature.").
63. 347 U.S. 483 (1954).
64. The constitutionality of Virginia's antimiscegenation law came before the Court in 1955. The Virginia Supreme Court had rejected a constitutional challenge to that law in a case involving an interracial couple from Virginia who had traveled to North Carolina to get married and then returned. Naim, 87 S.E.2d at 750. In a highly unusual move, the U.S. Supreme Court, after hearing oral arguments, ruled that the record in the case was inadequate because it was unclear whether the couple were Virginia domiciliaries. Naim v. Nain, 350 U.S. 891, 891 (1955). The Court vacated the Virginia Supreme Court's decision, sending the case back to that court and ordering it to remand the case to the trial court. Id. The Virginia Supreme Court refused to do so, ruling that it could not, under Virginia procedural rules, send the case back to the trial court. See Naim v. Naim, 90 S.E.2d 849, 850 (Va. 1956). The litigation came to an end when the U.S. Supreme Court denied a motion to recall the remand. See Naim v. Naim, 350 U.S. 985, 985 (1956). It seems clear that the Court, dealing with the southern states' political backlash and resistance to Brown, was in no mood to tackle an issue (interracial relationships) that was even more controversial than that of the racial integration of schools. See Philip Elman, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 Harv. L. Rev. 817, 846 (1987) (noting that, after the strong resistance to Brown in southern states, "the last thing in the world the Justices wanted to deal with at that time was the question of interracial marriage").
65. This seemed particularly clear after the Court struck down as unconstitutional a Florida statute that prohibited interracial cohabitation. See McLaughlin v. Florida, 379 U.S. 184, 196 (1964).
66. After Loving, it took the Court another seventeen years to make it clear that not only are race-based marital restrictions unconstitutional, but also that, upon the dissolution of a marriage, it is unconstitutional for courts to award custody on the basis of race. See Palmore v. Sidoti, 466 U.S. 429, 434 (1984). The trial judge in Palmore relied on the social stigma that accompanied the mother's relationship with a black man to justify taking custody away from her. Id. at 431. The Supreme Court rejected that reasoning, noting famously that although "[t]he Constitution cannot control . . . prejudices[,] . . . neither can it tolerate them. Private biases may be outside of the reach of the law, but the law cannot, directly or indirectly, give them effect." Id. at 433. Interestingly, some courts have denied gay and lesbian parents custody on the ground that third parties are likely to stigmatize the children because of the parents' sexual orientation. For example, the North Dakota Supreme Court in Jacobson v. Jacobson held that in light of society's disapproval of homosexuality, it was not in the best interests of the children to be placed with their lesbian mother. 314 N.W.2d 78 (N.D. 1981), overruled by Damron v. Damron, 670 N.W.2d 871, 875-76 (N.D. 2003). As the court put it, [W]e cannot lightly dismiss the fact that living in the same house with their mother and her lover may well cause the children to "suffer from the slings and arrows of a disapproving society" to a much greater extent than would an arrangement wherein the children were placed in the custody of their father with visitation rights in the mother. Id. at 81. Other courts, however, have relied on Palmore to reject the proposition that the stigma that society attaches to homosexuality is a valid ground for denying lesbians and gay men custody of their children. See, e.g., Jacoby v. Jacoby, 763 So. 2d 410, 413 (Fla. Dist. Ct. App. 2000) ("[E]ven if the [lower] court's comments about the community's beliefs and possible reactions [to homosexuality] were correct and supported by the evidence in this record, the law cannot give effect to private biases." (citing Palmore, 466 U.S. at 433)); Inscoe v. Inscoe, 700 N.E.2d 70, 82 (Ohio Ct. App. 1997) (holding that "[w]hen determining an allocation of parental rights and responsibilities, a trial court must disregard adverse impact on the child that flow from society's disapproval of a parent's sexual orientation." (citing Palmore, 466 U.S. at 429)).
67. Brief for Professors of History George Chauncey et al. as Amici Curiae Supporting Petitioners at 7, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102), 2003 WL 152350 [hereinafter Brief for Professors of History] ("[W]ith one brief exception [sodomy laws in colonial America] applied exclusively to acts performed by men, whether with women, girls, men, boys, or animals, and not to acts committed by two women. Only the New Haven colony penalized 'women lying with women,' and this for only ten years.").
68. Id. at *2 ("[In colonial America] [s]odomy was not the equivalent of homosexual conduct. It was understood as a particular, discrete, act, not as an indication of a person's sexuality or sexual orientation." (internal quotation marks omitted)); see also John D'Emilio, Making and Unmaking Minorities: The Tensions Between Gay Politics and History, 14 N.Y.U. Rev. L. & Soc. Change 915, 917 (1986) ("[In colonial America] [s]odomy was not an offense unto itself, a category that demarcated one type of individual from another. Instead, it represented a capacity for sin inherent in everyone.").
69. Brief for Professors of History, supra note 64, at *10 ("Only in the late nineteenth century did the idea of the homosexual as a distinct category of person emerge . . . .").
70. The classic account of this process is Michel Foucault, 1 The History of Sexuality: An Introduction (Robert Hurley trans., Vintage Books 1990) (1978).
71. See William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 39 (1999) (noting that "many Americans in the period between the World Wars . . . [were] nervous about the alarming number of Americans acknowledging their attraction to people of the same sex and forming visible subcultures in cities all across the country" (footnote omitted)).
72. See Robinson, supra note 18, at 105-07 (discussing several cases in which the government sought to link an interracial couple to interracial children as a way of proving violations of antimiscegenation law).
73. See Lillian Faderman, Odd Girls and Twilight Lovers: A History of Lesbian Life in Twentieth-Century America 11-36 (1991) (describing female romantic friendships in early twentieth-century America).
74. See Koppelman, supra note 12, at 224 ("[T]he barest hint . . . of a black man's desire for a white woman often sufficed to bring out the lynch mob.").
75. See Jonathan Ned Katz, Gay American History: Lesbians and Gay Men in the U.S.A. 129 (1976) ("Lesbians and Gay men have long been subjected to a varied, often horrifying list of 'cures' at the hands of psychiatric- psychological professionals, treatments usually aimed at asexualization or heterosexual reorientation.").
76. Eskridge, supra note 68, at 64 (describing police tactics after World War II aimed at investigating and arresting gay people).
77. See id. at 77 (describing efforts by postmasters to prevent the distribution of gay materials).
78. See id. at 67-74 (describing efforts to purge the military and the civil service, at both federal and state levels, of gay employees).
79. Nancy Cott has written that pre-Civil War efforts by state legislators to codify marriage rules were limited to only "a few, known boundaries - solemnization took a certain form; marriages could not be bigamous or incestuous or terminated at will; adultery and fornication were crimes." Nancy F. Cott, Public Vows: A History of Marriage and the Nation 28 (2000).
80. This has all changed, of course, in the last few years with the enactment of dozens of so-called Defense of Marriage Acts, laws that have no purpose other than to deny legal recognition to same-sex relationships. See Carlos A. Ball, The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and its Aftermath, 14 Wm. & Mary Bill Rts. J. 1493, 1524 (2006) (noting the passage of Defense of Marriage Acts by many state legislatures).
81. See Eskridge, supra note 68, at 25 ("By 1921 all of the states containing big cities, except Texas, had updated their criminal laws to make consensual oral sex a felony."). The first state to amend its sodomy law to include oral sex was Pennsylvania, which did so in 1879: [T]he terms sodomy and buggery . . . shall be taken to cover and include the act or acts where any person shall willfully and wickedly have carnal knowledge, in a manner against nature, of any other person, of penetrating the mouth of such person; and any person who shall wickedly suffer or permit any other person to wickedly and indecently penetrate, in a manner against nature, his or her mouth by carnal intercourse. Id. (citing Act of June 11, 1879 Pa. Laws 156, § 1).
82. See id. at 66 (estimating that between forty and eighty-five percent of the arrests for sodomy in five large American cities between 1946 and 1965 "were for consensual same-sex adult intimacy" (footnote omitted)).
83. The eight states that amended their sodomy laws to make them applicable only to same-sex sexual conduct - a process known as the " specification" of sodomy regulations - were Montana and Texas (1973); Kentucky (1974); Arkansas, Missouri and Nevada (1977); Kansas (1983); and Tennessee (1989). William B. Rubenstein, Carlos A. Ball & Jane S. Schacter, Cases and Materials on Sexual Orientation and the Law 147 (3d ed. 2008). Professor Nan Hunter has noted, The specification trend coincided with the emergence of the contemporary versions of both the lesbian and gay rights movement and a renewed movement for religious fundamentalism in American politics . . . . For states revising their criminal codes, the specification of homosexual acts as a crime marked both the greater visibility of homosexuality in a positive sense and the tremendous social anxiety which that visibility generated. Nan D. Hunter, Life After Hardwick, 27 Harv. C.R.-C.L. L. Rev. 531, 539-40 (1992).
84. See generally Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of federal question, 409 U.S. 810 (1972); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974).
85. See Jones, 501 S.W.2d at 589 ("It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the [county clerk] to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined."); Singer, 522 P.2d at 1192 (concluding that plaintiffs are not being denied entry into marriage because of their sex, but instead they "are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex").
86. See Jones, 501 S.W.2d at 590 ("In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.").
87. Patrick Lee and Robert George explain the argument as follows: In reproductive activity the bodily parts of the male and the bodily parts of the female participate in a single action, coitus, which is oriented to reproduction (though not every act of coitus is reproductive), so that the subject of the action is the male and the female as a unit. Coitus is a unitary action in which the male and the female become literally one organism. In marital intercourse, this bodily unity is an aspect - indeed, the biological matrix - of the couple's comprehensive marital communion. Patrick Lee & Robert P. George, What Sex Can Be: Self-Alienation, Illusion, or One-Flesh Union, 42 Am. J. Juris. 135, 144 (1997) (footnotes omitted).
88. See id. at 150 ("The lack of complementarity in homosexual couples is a condition which renders it impossible for them to perform the kind of act which makes them organically one."); see also John M. Finnis, Law, Morality, and "Sexual Orientation, " 69 Notre Dame L. Rev. 1049, 1066 (1994) (arguing that lesbians and gay men cannot, through sexual intimacy, become "a biological (and therefore personal) unit").
89. Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833, 857-58 ("[F]ather love and mother love are different kinds of love.");
90. see also Lynne Marie Kohm, The Homosexual "Union": Should Gay and Lesbian Partnerships Be Granted the Same Status as Marriage?, 22 J. Contemp. L. 51, 61 (1996) ("States have an enormous interest in supporting and protecting the validity of marriage . . . [to] ensur[e] that children are socialized and supported by responsible, committed adults. . . . Statistics continue to show that the most stable family for children to grow up in is that consisting of a father and a mother." (footnote omitted)).
91. See supra notes 82-83 and accompanying text.
92. See George Chauncey, Why Marriage? The History Shaping Today's Debate over Gay Equality 105-11 (2004) (describing the "lesbian baby boom" that began in the early 1980s).
93. Baehr v. Lewin, 852 P.2d 44, 68 (Haw. 1993).
94. Transcript of Trial at 5, Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. Sept. 10, 1996) (No. 91-1394-05).
95. Id. at 8.
96. Id.
97. Id. at 8-9.
98. The court concluded that the "[d]efendant has failed to establish a causal link between allowing same-sex marriage and adverse effects upon the optimal development of children." Baehr, 1996 WL 694235, at *18.
99. Id. at *4-5 (summarizing the testimony of Dr. Kyle Pruett).
100. Id. It is more than a little ironic that the state relied on broad generalizations regarding the differing abilities of male and female parents, as well as the differing effects of those capacities on children, in a case in which the Hawaii supreme court concluded that the ban against same-sex marriage constituted a suspect sex-based classification. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). I return to the question of the constitutional vulnerability of the dual-parenting justification as a basis for continuing to ban same-sex marriages in infra notes 134-47 and accompanying text.
101. Rubenstein et al., supra note 80, at 612.
102. See infra notes 99, 106 and accompanying texts.
103. In the state of Washington's same-sex marriage litigation, for example, the government argued "that rearing children in a home headed by their opposite-sex parents is a legitimate state interest furthered by limiting marriage to opposite-sex couples because children tend to thrive in families consisting of a father, mother, and their biological children." Andersen v. King County, 138 P.3d 963, 983 (Wash. 2006). The Washington Supreme Court accepted this argument, noting that "the legislature was entitled to believe that providing that only opposite-sex couples may marry will encourage procreation and child-rearing in a 'traditional' nuclear family where children tend to thrive." Id.; see also id. at 990 ("The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State's legitimate interests in procreation and the well-being of children."). The New York Court of Appeals has reached a similar conclusion. See infra note 106 and accompanying text.
104. Brief of Appellant King County at 37, Andersen v. King County, 138 P.3d 963 (Wash. 2006) (No. 75934-1) (omission in original) (quoting testimony provided to the state legislature by Jeff Kemp of the Washington Family Council). This argument is closely linked to the notion that male-female relationships are unique because of their procreative capabilities. As the government argued in the Washington same-sex marriage case, "Most opposite-sex couples have the ability to create, without the involvement of a third party, a child who is biologically related to both of them. No other relationship has this potential. The unique and profound biological relationship between mothers and fathers and their children provides a rational basis to treat relationships that can create children differently than other relationships." Reply Brief of Appellant King County at 17, Andersen, 138 P.3d 963 (No. 75934-1). The fact that the procreation argument against recognizing same-sex relationships is usually deployed alongside the dual-gender parenting argument is an example of the conflation between "sex" and "gender" that frequently accompanies discussions of same-sex marriage and parenting. For a further discussion of this conflation, see supra note 6. The procreative argument, which is based on what one court characterized as "a function of biology" that results from the "innate, complementary, procreative roles [of men and women]," Hernandez v. Robles, 805 N.Y.S.2d 354, 360 (App. Div. 2005), aff'd, 855 N.E.2d 1 (N.Y. 2006), would seem to go to issues of "sex," that is, to the seemingly natural differences between men and women. That argument, however, is almost always followed by the seemingly gender-based notion that mothers and fathers care for children in fundamentally different ways. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 962 (Mass. 2003) (noting that the government's "first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the 'optimal' setting").
105. The state of Vermont argued in its brief to the state supreme court defending its ban against same-sex marriage that only children raised by different-sex couples can "see and experience the innate and unique abilities and characteristics that each sex possesses and contributes to their combined endeavor." Ball, supra note 6, at 711 (quoting State of Vermont's Brief at 54, Baker v. State, 744 A.2d 864 (Vt. 1999) (No. 98-032)). The brief added that the state's interest in limiting marriage to different-sex couples is "grounded upon the rich physical and psychological differences between the sexes that exist to this very day." State of Vermont's Brief, supra, at 51; see also Brief for the Commonwealth of Massachusetts at 118, Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (No. SJC-08860) ("In limiting marriage to opposite-sex couples, the Legislature could believe that father[s] and mother[s] each have something special to offer their [s]ons or daughter[s], and that children and families develop best when fathers and mothers are partners in parenting." (alterations in original) (internal quotation marks omitted)).
106. The arguments in favor of antimiscegenation laws and those in favor of bans against same-sex marriage do differ in one respect: while the former call for racial segregation in marriage, the latter call for sex/gender integration in marriage. Antimiscegenation laws, in other words, aim to keep the races separate when it comes to marriage, while the bans against same-sex marriage (ostensibly) seek to maintain and protect those intimate relationships that bring together individuals of different sexes/genders. The important point, however, is that both marital restrictions are grounded in the idea that individuals have certain natural, essential, and predetermined characteristics and attributes that (should) render them ineligible to marry someone of a different race (in the case of antimiscegenation laws) or of the same sex/gender (in the case of same-sex marriage bans).
107. Andersen, 138 P.3d at 1005.
108. Supporters of the notion that dual-gender parenting is an essential element of optimal parenting frequently point to studies which show that children who do not have fathers participating in their lives do not do as well as those who do. See id. at 1006 (noting that "[s]tudies summarized in the record before one trial court demonstrated that an absent father is associated with quantifiable deficits in children at every stage of the lifecycle, persisting not only in the adulthood of the child, but even into the next generation" (internal quotation marks omitted)). Those studies, however, usually compare households headed by heterosexual single mothers with families headed by different-sex spouses. See id. at 1006 n.47 (citing to three studies that compared children raised by single mothers with children raised by married heterosexual parents). The studies do not compare households headed by two different-sex spouses with households headed by two lesbian mothers to determine whether the lack of a male parent in the latter negatively affects children. This point has been acknowledged by the Institute for Marriage and Public Policy, an organization that opposes same-sex marriage. See Maggie Gallagher & Joshua K. Baker, Inst. for Marriage and Pub. Policy, Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-Being 2 (2004), available at http://www.marriagedebate.com/pdf/ Do%20Mothers%20and%20Fathers%20Matter.pdf ("Most of the research on family structure . . . does not directly compare children in intact married homes with children raised by birth by same-sex couples."); see also Varnum v. Brien, No. CV5965, slip op. at 30 (Iowa Dist. Ct. Aug. 30, 2007) (finding that studies which conclude that children benefit from being raised by a married mother and father have not compared the well-being of such children with those raised by same-sex couples).
109. See Wardle, supra note 86, at 860-61 ("Parents are important as role models for their children of the same gender because [c]hildren learn to be adults by watching adults." (internal quotation marks omitted)); see also Brief for the Alliance for Marriage as Amici Curiae Supporting Appellants-Intervenors at 16, Andersen, 138 P.3d 963 (No. 75934-1) ("[Fathers] provide protection and economic support and male role models. They have a parenting style that is significantly different from that of mothers, and the difference is important in healthy child development.").
110. Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (emphasis added). These types of arguments associated with the quality and distinctiveness of sex/gender-based parenting were once used to justify the so-called "tender years" doctrine, which presumed, in custody cases, that mothers were better able to care for young children than fathers. That doctrine has been repudiated by most jurisdictions. See Alexandra Selfridge, Equal Protection and Gender Preference in Divorce Contests over Custody, 16 J. Contemp. Legal Issues 165, 174 (2007) (discussing the law on this point in several jurisdictions). One of the courts that rejected the maternal preference presumption is the Maryland Court of Appeals. See Elza v. Elza, 475 A.2d 1180, 1183-84 (Md. 1984). Several years after Elza, a trial court granted a mother's petition requesting that custody of her daughters be taken away from the father and given to her because the younger of the two girls in particular had "a need for a female hand." Giffin v. Crane, 716 A.2d 1029, 1033 (Md. 1998) (emphasis omitted). The Maryland Court of Appeals rejected that view, holding that "[t]he trial court erred [when] it assumed that the [mother] necessarily would be a better custodian solely because she has a female hand, and that a girl child of a certain age has a particular and specific need to be with her same sex parent." Id. at 1040.
111. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 983 (Mass. 2003) (Cordy, J., dissenting).
112. Id. at 1000 n.29 (citation omitted). The same judge determined that it is rational for the legislature to conclude that a family environment with married opposite-sex parents remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm. Id. at 999-1000 (footnote omitted). The judge added that the fact that Massachusetts law allows same-sex couples to adopt does not undermine the rationality of the same-sex marriage ban because "adoption presupposes that at least one of the child's biological parents is unable or unwilling . . . to participate in raising the child. In that sense, society has 'lost' the optimal setting in which to raise that child - it is simply not available." Id. at 1000.
113. The state of Florida, in defending the constitutionality of a law that prohibits lesbians and gay men from adopting, not only argued that dual-gender parenting plays a "vital role . . . in shaping sexual and gender identity," but that it is also crucial "in providing heterosexual role modeling." Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004). This latter argument posits that heterosexual parents are better able to provide their children with the education and guidance needed to date members of the opposite sex. The U.S. Court of Appeals for the Eleventh Circuit found this argument to be rational, concluding that heterosexuals "are better positioned than homosexual individuals to provide adopted children with education and guidance relative to their sexual development throughout pubescence and adolescence" given that the majority of adopted children will eventually manifest a different-sex sexual orientation. Id. at 822 (footnote omitted). The court did not explain what might be in the best interests of those children who will eventually manifest a same-sex sexual orientation. Judge Rosemary Barkett, in a dissent from the denial of en banc review in Lofton, ridiculed the panel's reasoning on this point: There is certainly no evidence that the ability to share one's adolescent dating experiences (or lack thereof) is an important, much less essential, facet of parenting. The difficult transition to adulthood is a common human experience, not an experience unique to human beings of a particular race, gender, or sexual orientation. It is downright silly to argue that parents must have experienced everything that a child will experience in order to guide them. Lofton v. Sec'y of the Dep't of Children & Family Servs., 377 F.3d 1275, 1299 (11th Cir. 2004) (Barkett, J., dissenting from denial of en banc review).
114. Lynn Wardle, for example, has argued that "[h]omosexual parenting poses particular risks for the emotional and gender development of children" and that children "have stronger gender identity . . . when they are reared in two-parent, dual-gender families." Wardle, supra note 86, at 863; see also Paul Cameron, Homosexual Parents: Testing "Common Sense" - A Literature Review Emphasizing the Golombok and Tasker Longitudinal Study of Lesbians' Children, 85 Psychol. Rep. 282, 293 (1999) (noting that "common sense" tells us that "[c]hildren raised by homosexuals, lacking regular input from and experiences with both a father and a mother, should be more apt to exhibit gender confusion of various sorts" (emphasis omitted)).
115. Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 Am. Soc. Rev. 159, 168 (2001).
116. Id.
117. Id. I explore the conclusions and implications of the Stacey and Biblarz article in Ball, supra note 6, at 697-705.
118. See supra note 106 and accompanying text.
119. See supra notes 48-57 and accompanying text.
120. The Supreme Court first discussed the constitutional limitations on the ability of the state to interfere with the parent-child relationship in Pierce v. Society of Sisters, 268 U.S. 510, 518-19 (1925), and Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The same constitutional protections available to lesbian and gay parents who are biologically related to their children apply, of course, to lesbians and gay men who become legal parents through adoption.
121. See Rubenstein et al., supra note 80, at 148-54.
122. See supra note 103 and accompanying text (noting that the Washington Supreme Court concluded that men and women are " nonfungible" when they act as parents).
123. As the Massachusetts Supreme Judicial Court has noted, "Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure in which children will be reared, educated, and socialized." Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 964 (Mass. 2003).
124. Efforts to connect the well-being of the children of different-sex relationships to the ban on same-sex marriages can border on the absurd. The New York Court of Appeals defended the rationality of the ban by using the following curious reasoning: (1) different-sex relationships that produce children can be "casual or temporary" because of the ease with which those children can be created through heterosexual sex; (2) in contrast, same-sex couples who want to have children have to engage in considerable discussions and planning, and as a result, enjoy relationships that are more stable than those of different sex-couples; therefore (3) it is rational for the legislature to limit the stability and permanence provided by marriage to those couples (and their children) who need it most! See Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006); see also Morrison v. Sadler, 821 N.E.2d 15, 30 (Ind. App. 2005) (noting that "[e]ven accepting that many same-sex couples are successfully raising children in today's society, these couples are not at 'risk' of having random and unexpected children by virtue of their ordinary sexual activities"). The complete disconnect between permitting same-sex couples to marry and the promotion of responsible childrearing by different-sex couples makes the New York court's reasoning deeply flawed. For the court's argument to carry weight, we would have to be persuaded that some different-sex relationships will turn out to be less "casual or temporary" because of the fact that same-sex couples are not allowed to marry. Such a contention makes no sense. Chief Justice Judith S. Kaye in her dissent noted that "no one rationally decides to have children because gays and lesbians are excluded from marriage." Hernandez, 855 N.E.2d at 31 (Kaye, C.J., dissenting). Similarly, no one rationally decides to stay with one's different-sex partner after having children with that person because lesbians and gay men are excluded from marriage.
125. See Turner v. Safley, 482 U.S. 78 (1987) (holding that prisoners enjoy a constitutional right to marry); Zablocki v. Redhail, 434 U.S. 374 (1978) (holding that individuals who owe child support cannot be denied the opportunity to marry).
126. See, e.g., Conaway v. Deane, 932 A.2d 571, 619 (Md. 2007) (noting that gay litigants, in arguing that individuals have a fundamental right to marry the person of their choice, rely inter alia on Loving); Lewis v. Harris, 908 A.2d 196, 210 (N.J. 2006) ("Plaintiffs . . . rely on [Loving] to support their claim that the right to same-sex marriage is fundamental." (citation omitted)).
127. See, e.g., Conaway, 932 A.2d at 620; Lewis, 908 A.2d at 210; Hernandez, 855 N.E.2d at 9-10; Andersen v. King County, 138 P.3d 963, 989 (Wash. 2006) (en banc).
128. I have elsewhere addressed the relevance of the Supreme Court's marriage cases to the due process question of whether the fundamental right to marry includes same-sex couples within its ambit. See generally Carlos A. Ball, The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas, 88 Minn. L. Rev. 1184 (2004).
129. 852 P.2d 44 (Haw. 1993) (holding that the ban against same-sex marriage constitutes a sex-based classification that requires the state to establish a compelling interest).
130. See, e.g., Conaway, 932 A.2d at 585; Hernandez, 855 N.E.2d at 10; Andersen, 138 P.3d at 989. For scholarly elaborations on the argument that sexual orientation discrimination constitutes a form of sex/gender discrimination, see generally Koppelman, supra note 12, and Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187.
131. See, e.g., Conaway, 932 A.2d at 600-01 (explaining the "equal application" defense); Andersen, 138 P.3d at 989 (same).
132. Loving v. Virginia, 388 U.S. 1, 8 (1967).
133. See, e.g., Conaway, 932 A.2d at 619 (noting that gay litigants "rely principally on Loving" to counter the state's "equal application theory"); Andersen, 138 P.3d at 989 ("Plaintiffs maintain . . . that Loving supports their argument that [the Maryland Defense of Marriage Act] violates the [Maryland Constitution's Equal Rights Amendment]. Plaintiffs reason that in Loving the Court held Virginia's antimiscegenation statute invalid even though the law treated the races equally."). The Court in Loving reasoned as follows: "[W]e reject the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations. " Loving, 388 U.S. at 8.
134. See, e.g., Conaway, 932 A.2d at 601-02; Hernandez, 855 N.E.2d at 11; Andersen, 138 P.3d at 989. But see Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 971 (Mass. 2003) (Greaney, J., concurring) ("The equal protection infirmity at work here is strikingly similar to . . . the invidious discrimination perpetrated by Virginia's antimiscegenation laws unveiled in the decision of Loving v. Virginia . . . ."); Baker v. State, 744 A.2d 864, 906 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part) (concluding that "the sex-based classification contained in the marriage laws is unrelated to any valid purpose, but rather is a vestige of sex-role stereotyping that applies to both men and women, [and that therefore] the classification is . . . unlawful sex discrimination even if it applies equally to men and women"); Baehr v. Lewin, 852 P.2d 44, 63 (Haw. 1993) (analogizing to Loving in concluding that a same-sex marriage ban constitutes a sex-based classification).
135. See Loving, 388 U.S. at 11.
136. Hernandez, 855 N.E.2d at 10-11.
137. Conaway, 932 A.2d at 602; see also Goodridge, 798 N.E.2d at 992 n.13 (Cordy, J., dissenting) ("Unlike Virginia's antimiscegenation statute, neither the purpose nor the effect of the Massachusetts marriage statute is to advantage or disadvantage one gender over the other. This distinction is critical and was central to the Loving decision."); Baker, 744 A.2d at 880 n.13 (rejecting the argument that a same-sex marriage ban constitutes an impermissible sex-based classification given the absence of evidence showing purposeful discrimination).
138. I will concede for purposes of argument that marriage laws impact men and women equally in order to focus on the further conclusion reached by several courts that the sex/gender-based marital restriction is not based on prejudice. As many commentators have noted, however, the history of the institution of marriage is replete with examples of the ways in which it has contributed, in powerful ways, to the subordination of women by men. See Claudia Card, Against Marriage and Motherhood, 11 Hypatia 1, 4 (1996) ("Marriage and motherhood in the history of modern patriarchies have been mandatory for and oppressive to women . . . .");
139. Nancy D. Polikoff, Why Lesbians and Gay Men Should Read Martha Fineman, 8 Am. Univ. J. Gender Soc. Pol'y & L. 167, 170 (2000) (noting how for second-wave feminists "[m]arriage was the principal institution that maintained . . . patriarchy");
140. see also Susan Frelich Appleton, Missing in Action? Searching for Gender Talk in the Same-Sex Marriage Debate, 16 Stan. L. & Pol'y Rev. 97, 107 (2005) ("[A]ny temptation to assert that same-sex marriage bans do not discriminate because they apply equally to men and women alike must give way in view of males' traditional position of superiority in law, society, and family life." (footnote omitted));
141. Justin Reinheimer, Note, Same-Sex Marriage Through the Equal Protection Clause: A Gender-Conscious Analysis, 21 Berkeley J. Gender L. & Just. 213, 231 (2006) ("Women of all sexualities, as a group, are disproportionately impacted by marriage given the institution's role in maintaining and enforcing sex inequality . . . ."). One of the most important components of that subordination results from the indisputable proposition that the norm of dual-gender parenting, defended by states in the same-sex marriage litigation, has traditionally expected much more child care of mothers than it has of fathers. This unequal application of the norm of dual-gender parenting, in turn, has significantly restricted the social, political, and economic opportunities of women. Although I am persuaded by the critique of the traditional understanding of marriage as one that subordinates women to the interests of men, I wonder whether a majority of judges, in the foreseeable future, are likely to agree. My sense is that judges may be more open to the idea that the marital sex/gender restriction is ultimately grounded in stereotypes about the abilities and traits of both men and women than to the notion that the institution of marriage, as traditionally understood, is an intrinsically patriarchal one. The subordination argument and the stereotyping argument, of course, are not mutually exclusive. In fact, the institution of marriage has historically served to subordinate women precisely because of stereotypical understandings of the needs, interests, and capabilities of women/wives. Given the facial neutrality of sex/gender marital restrictions, however, it may be easier to persuade judges of the constitutional infirmity of those restrictions by exposing how arguments in support of same-sex marriage bans rely on stereotypes relating to both men and women rather than through a patriarchy-based critique that ultimately requires judges to conclude that the institution of marriage, as currently defined, promotes the subordination of women.
142. Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989).
143. Id. at 251 (internal quotation marks omitted); see also Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 730 (2003) ("Reliance on [gender] stereotypes cannot justify the States' gender discrimination in [the area of employment].").
144. United States v. Virginia, 518 U.S. 515, 540 (1996).
145. Id. at 522 (quoting United States v. Virginia, 766 F. Supp. 1407, 1421 (1991)).
146. Id. at 549.
147. Id. at 541 (internal quotation marks omitted).
148. Id. at 533.
149. Orr v. Orr, 40 U.S. 268 (1979).
150. Id. at 279. In Weinberger v. Wiesenfeld, the Supreme Court assessed the constitutionality of a Social Security Act provision that granted smaller survivors' benefits to widowers and their children than to widows and their children. 420 U.S. 636 (1975). In striking down the law, the Court noted that, although "the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support[,] . . . such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support." Id. at 645 (footnote omitted); see also Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) ("No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas."). Furthermore, the Court, in holding that Congress appropriately abrogated the states" sovereign immunity when it enacted the Family and Medical Leave Act, recognized the dialectical relationship between gender stereotypes in the family sphere and gender stereotypes in the employment sphere: Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 736 (2003).
151. Koppelman, supra note 12, at 218 (emphasis added). Susan Frelich Appleton has noted the extent to which "[s]tate and federal legislatures, as well as state courts, have followed the Justices' lead [in rejecting the promotion by the state of gender stereotypes by] developing gender-neutral rules about child custody, post-dissolution support, premarital contract enforcement, and age requirements for marriage - to name some representative illustrations." Appleton, supra note 134, at 113-14 (footnotes omitted). In fact, Appleton adds that "the requirement of one man and one woman for a valid marriage" is the last important sex/gender criterion that remains standing in family law, "even though the spouses' legal roles and responsibilities have become essentially interchangeable." Id. at 119.
152. For further discussion, see Ball, supra note 6, at 725-48.
153. Justice Antonin Scalia, in dissenting from a ruling in which the Court held that it is unconstitutional for the government to exercise peremptory challenges on the basis of a prospective juror's sex, contended that there can be no unconstitutional discrimination as long as both men and women are subject to such challenges. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 159 (1994) (Scalia, J., dissenting) ("Since all groups are subject to the peremptory challenge . . . it is hard to see how any group is denied equal protection."). The majority, however, rejected that argument, noting that [a]ll persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical
154. Professor Stephen Clark has noted that the equal application defense raised by the states in same-sex marriage cases has a "superficial appeal" because, at a broad level of generality, the marriage bans seem to represent a single policy that treats men and women equally. Stephen Clark, Same-Sex But Equal: Reformulating the Miscegenation Analogy, 34 Rutgers L.J. 107, 143 (2002). The defense, however, constitutes nothing more than a "semantic shell game," id. at 144, meant to hide the fact that the bans are "designed to simultaneously enforce both a male gender role and a female gender role, [thus] amount[ing] to a regime of dual discrimination injuring both sexes," id. at 140.
155. "Although fathers' engagement with children has increased in recent decades, mothers continue to do about two thirds of all child care." Daniel N. Hawkins et al., Parent-Adolescent Involvement: The Relative Influence of Parent Gender and Residence, 68 J. Marriage & Fam. 125, 125 (2006) (citation omitted).
156. Leslie D. Hall et al., Gender and Family Work in One-Parent Households, 57 J. Marriage & Fam. 685, 686 (1995).
157. It is interesting to note that the reports on the differences in parenting roles between men and women have for the most part studied intact families in which there is a mother and father present in the home. A recent study that compared single fathers with single mothers, however, found that they did not differ in either the time spent with their children or in the kinds of activities that they engage in with their children. Id. at 690 & tbl.4. This suggests that the differences reported in the literature on both of these criteria are not explained by natural differences between men or women, but are instead explained by the different expectations (both social and internal) that attach to being a male parent and a female parent in married, different-sex households. As the authors of the study note, Being the caretaker of family members is seen by women, and more broadly by society, as something women are rather than as something they do. Conversely, caretaking is something that fathers . . . do rather than something that they are. The meaning of the activity differs by virtue of the gender of the actor. Consequently, the family labor of women and men both shapes and is shaped by social constructions of gender. Id. at 691.
158. J.E.B., 511 U.S. at 140.
159. Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006). Given that the dual-gender parenting argument, at its core, is based on the notion that men and women have different abilities as parents that correlate directly to their sex/gender, the burden should be on the government to present evidence that the absence of a male parent in a household headed by a lesbian couple and the lack of a female parent in a household headed by a gay male couple negatively affects children. Relying on studies that compare households headed by single heterosexual mothers to those headed by different-sex spouses, see supra note 104, should not be enough in cases in which the government chooses to defend a law on the constitutionally suspect ground that men and women have "different talents, capacities, or preferences," United States v. Virginia, 518 U.S. 515, 533 (1996).
160. Michael E. Lamb & Catherine S. Tamis-Lemonda, The Role of the Father: An Introduction, in The Role of the Father in Child Development 1, 10 (Michael E. Lamb ed., 4th ed. 2004).
161. Even Dr. Kyle Pruett, who was the leading witness for Hawaii during the trial that assessed the constitutionality of that state's ban on same-sex marriage, see supra notes 95-96 and accompanying text, and whose work is frequently cited by those who view dual-gender parenting as essential to the well-being of children, see, e.g., Wardle, supra note 86, at 857 n.120, 858 nn.125 & 130, 860 n.151, 861 n.158, has more recently written that "I . . . now realize that most of the enduring parental skills are probably, in the end, not dependent on gender," see Kyle D. Pruett, Fatherneed: Why Father Care Is as Essential as Mother Care for Your Child 18 (2000).
162. See supra notes 99-114 and accompanying text.