Sunday, January 12, 2014

Same-Sex Marriage: Have We Been Here Before?

Comparing States’ Approaches Toward Same-Sex Marriage Bans
& Pre-Loving Anti-Miscegenation Statutes

By Grace Burhyte Atwater
Grace Atwater is a May 2013 graduate of Albany Law School She currently lives and works in Buffalo.
During law school, she served as Executive Managing Editor of the Albany Law Review, and as a Senior Editor for the Center. Grace also interned at the Office of the New York State Attorney General in the Consumer Frauds and Protection Bureau, worked as a Research Assistant for Professor David Siegel, and was Professor Bonventre’s Teaching Assistant for Criminal Law.
Grace received a Bachelor’s Degree from DePauw University in Greencastle, IN, where she majored in History, and minored in Latin American & Caribbean Studies.
She wrote this paper for the State Constitutional Adjudication seminar in Spring 2013.

The marriage equality debate is not new. Discriminatory practices in granting marriage licenses are a longstanding tradition of the American social order, despite marriage having been repeatedly referred to as a “fundamental right."

In Loving v. Virginia, the U.S. Supreme Court stated, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Of most recent controversy is the debate over same-sex marriage.

Litigants in same-sex marriage cases have made analogies to the anti-miscegenation cases of the 1950s and 60s by using the U.S. Supreme Court’s holding in Loving that marriage is a fundamental right to challenge state statutes limiting marriage to heterosexual couples. Nevertheless, many state courts have rejected these arguments without much explanation, compelling a comparative analysis of the underlying laws and court decisions.

This paper examines judicial opinions and compares the justifications provided for state statutes and constitutional provisions that banned interracial marriage before Loving with those that currently ban same-sex marriage. The language used by the courts to rationalize these holdings reveals a mindset strikingly similar to the mentalities behind the enactment and continued support of these statutes.

By comparing the underlying rationales of these decisions as well as the social movements running concurrently to states overturning these bans, it becomes clear that the unconstitutionality of same-sex marriage bans is not one of “if,” but instead, simply a question of “when.”
To read the paper, open HERE.