The Civil Rights Clinic at the Howard University School of Law, the oldest law school at any historically black college in the country, has filed a brief in the Prop 8 case before the Supreme Court. The brief notes how similar the arguments against same-sex marriage are to the arguments against interracial marriage.
In the Jim Crow era, the denial of marriage rights to interracial couples served as one of the most potent symbols of the less-than-equal status of African-Americans. As recently as 1967, sixteen states still had anti-miscegenation statutes on their books; the last such statute was not officially repealed until 2000. Opponents of interracial marriage justified criminal prohibitions against such unions by pointing to the purported detrimental effect of interracial births and parentage, the supposed destruction of society if people marry between the races, and the so-called natural law rationale for keeping the races separate.
While public debate over interracial unions has generally died since Loving v. Virginia, today the opposition to marriage for same-sex couples relies on arguments strikingly similar to those raised in opposition to interracial marriage. Without acknowledging the racial provenance of these discredited arguments, opponents of marriage equality have attacked same-sex couples as a threat to American society, American families and heterosexual marriage, as an affront to the laws of God and nature, and as a menace to their children.
The brief goes on to note five similarities in the arguments used by opponents of marriage equality 45 years ago (when it involved race) and today. Like the “threat to the social order” argument:
Like the identical argument that is presently used to oppose marriage for same-sex couples, past opposition to interracial marriage regarded interracial marriage as threats to social order and the institutions of marriage and family. The chief argument being used to oppose same-sex marriage is a recycled claim that was used to oppose interracial marriage and revolves around the assertion that extending marriage rights to same-sex couples risks weakening one of our most important tools for transmitting social values and maintaining social order.
For interracial marriage, the social order argument relied on the premise that “the underlying assumption … that the union of a man and woman of different races did not fit the concept of marriage.” Then, as now, traditionalists defended marriage as the fundamental building block of American society and feared the purported evil of extending marriage equality to those long denied its benefits. One court explained that it is through marriage that “the homes of a people are created,” that these homes “are the true officinæ gentium — the nurseries of States,” and that interracial marriages would introduce “into their most intimate relations, elements so heterogeneous that they must naturally cause discord, shame,disruption of family circles and estrangement of kindred.”…
Identical to the interracial argument, now, those who oppose same-sex marriage point to marriage and the family as the main social device to transmit values and beliefs across generations, and argue that value transmission can only be successfully accomplished in two-parent, mixed-gender households because marriage for same-sex couples does not fit the concept of marriage. The social order argument used by those who oppose same-sex marriage is just pervasive insidious discrimination and baseless stereotypes that are camouflaged as social order.
And the religious arguments against both:
Judeo-Christian theological interpretations often have been invoked to challenge marriage for both interracial and same-sex couples.
The Bible served as a primary source in the debate against interracial marriage. Petitioners Amicus, Life, Liberty, and Law, invokes not only the Bible but centuries of religious teachings that it claims are contrary to same sex-intimacy.
Similar arguments were presented by anti-miscegenationists who insisted that the Bible directly addressed the mixing of the races in Leviticus 19:19: “You shall not let your livestock breed with another kind. You shall not sow your field with mixed seed. Nor shall a garment of mixed linen and wool come upon you.” In 1867, a white supremacist clergyman wrote “a man can not commit so great an offense against his race, against the country, against his God, in any other way, as to give his daughter in marriage to a negro — a beast — or to take one of their females for his wife.
To justify reinstatement and expansion of miscegenation laws, legislators, policymakers, and judges declared interracial marriage unnatural and contrary to God’s will. One court explained: “The natural law which forbids their intermarriage and that social amalgamation which leads to a corruption of races, is as clearly divine as that which imparted to them different natures.” Another court declared that interracial marriages are “not only unnatural, but also productive of deplorable results. … They are productive of evil, and evil only, without any corresponding good.” Still another court asserted, “[t]he natural law which forbids their intermarriage and that social amalgamation which leads to a corruption of races,is as clearly divine as that which imparted to them different natures.” But perhaps the most famous religious apology for anti-miscegenation laws was articulated by the trial judge in
Loving. Judge Leon Bazile of the Circuit Court of Caroline County, Virginia, explained the reason for Virginia’s law prohibiting interracial marriage thusly:
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.
Even though reliance on religious doctrine as the basis for public policy is as improper today as it was in the days of anti-miscegenation laws, today opponents of marriage between two persons of the same sex use (their) Biblical interpretations to suggest that homosexuality is unnatural because it is against God’s will. Indeed, like their anti-miscegenationist counterparts, opponents of marriage for same-sex couples almost always attempt to clothe their arguments in literal and selective interpretations of the Bible. Opponents of marriage for same-sex couples often quote Leviticus 18:22—“You shall not lie with a male as with a woman; it is an abomination”—as Biblical support for anti-homosexual campaigns against marriage equality.
Focus on the Family, perhaps the most vocal organization opposing both marriage and civil unions between persons of the same sex, argues that“[m]arriage is the first institution ordained by God and served from the beginning as the foundation for the continuation of the human race.” Referencing Adam and Eve, “God’s destruction of the city of Sodom for alleged homosexual depravity, … [and]Leviticus, opponents of marriage by same-sex couples assert that those who engage in homosexual sexual activity are sinners, [and] marriage should be constrained to Biblical description of marriage as between a man and a woman.”
Similarly, Proposition 8 proponent William Tam stated that if Proposition 8 were defeated states would then one-by-one to fall into Satan’s hands, and there would be “social moral decay.” A Proposition 8 ad even warned that “the devil wants to blur the lines between right and wrong when it comes to family structure”; “marriage is the symbol of our salvation and the symbol of our relationship with Christ”; that God is “giving America a second chance”; and implored voters to“stand up for Jesus Christ” and not deny Jesus like Peter did.
This is a very compelling and strongly argued brief. But the one person on the court that it should speak to more than any other — Clarence Thomas, who is in a marriage that would have been illegal 50 years ago — will dismiss it out of hand.