CSP 19 Final Paper First Draft

Note to readers: I changed my choice of essay at the very last minute. Please excuse my very rough draft with several grammar mistakes. Concepts I chose for this essay include: marriage, law as a social construction, historical events (will need further work on) and constitutional jurisprudence. Have not met word count yet.

Marriage as a Social Construction Medium

Marriage, the unity of two people in a consensual and contractual relationship by law, carries with it legal, economic and social responsibilities. In the case of miscegenation and same-sex marriages, it is clear that matrimony between two people becomes an institutional weapon of hegemony to further discriminate against particular groups in society and amplify dominant ideologies. Marriage has always been used as a medium in the construction of race and sexuality; it is both a producer and a product of imbalanced power to discriminate against racial and sexual minorities.

Prior to the elimination of all race-based discrimination, anti-miscegenation laws were used as a tool for perpetuating white supremacy. Race is a human construction, and it has always remained a question of whether it is biological or simply created by our prejudices. However, throughout the history of anti-miscegenation discrimination, biological characteristics were the key determinant for race and often used to scout racial hierarchies. In the case of Estates of Monk, biological determinacy was the crucial factor in the court’s decision. Marie Antoinette Monks, widow of Allan Monks, was ruled as a Negro due to a surgeon’s assumption based on her physical features such as the contour of her calves. Relying on the surgeon’s testimony, the judge declared Mrs. Monks was indeed a descendent of a Negro and therefore her marriage to Allan Monks was invalidated. The concept that race is merely biological was “consonant with the racial categories built into laws, seemed supportable by clear and unequivocal expert testimony, and fit comfortably within popular notions of race” (Pascoe 60). Although biological determinacy had played the key role for anti-miscegenation arguments, the argument had shifted its focus onto the violation of equal rights based on racial discrimination. In the case of Loving vs. Virginia, Richard and Mildred Loving, a white and black couple, tried to evade Virginia’s Racial Integrity Act by attaining a marriage license in the District of Columbia. The couple was later prosecuted in their home state Virginia for violating the state’s anti-miscegenation statute. The Lovings decided to file a motion to vacate the conviction on the ground that the anti-miscegenation law violated the Fourteenth Amendment. In the end, the United States Supreme Court, with a 9-0 vote, finally declared Virginia’s and fifteen other states’ anti-miscegenation statute unconstitutional. This landmark civil rights case was a significant milestone, for it ended all race-based legal discrimination in the country. The court wrote that the statute violated both the Due Process Clause and Equal Protection Clause and concluded by stating the statute was an instrument implicated to perpetrate white supremacy (Eskridge 799). The Loving decision spelled the formal end to America’s anti-miscegenation laws. Regulations against miscegenation marriages were at the very heart of white domination; they were established to promote white hegemony but with much more liberal perspectives in modern society, they are no longer restriction and a weapon of supremacy.

Same-sex marriage, however, still remains a controversial issue today because it conflicts with the traditional concept of a marriage between a man and woman. One of the central arguments surrounding same-sex marriage is its discrimination classification (whether it is sex-classification or sexual-orientation-classification). Sex-discrimination violates the Equal Protection Clause of the Fourteenth Amendment and, as a result, is classified as heightened scrutiny. This was illustrated in the case of Baehr vs. Lewin. Three same-sex couples from Hawaii applied for marriage licenses, which were all denied due to their sex. Consequently, the plaintiffs filed a suit on the grounds that prohibition of same-sex marriage violated the state constitution. The Hawaii Supreme Court found that Hawaii’s constitution’s right to privacy did not include the fundamental right to same-sex marriage (Eskridge 811). However, the Court did find that the suit constituted a discrimination based on sex under the state’s Equal Rights Amendment, thus subjected the state’s marriage law to strict scrutiny. The court ruled the law was unconstitutional by a vote of four to one, with only Judge Heen in dissenting the decision. The impact of this ruling echoed throughout the nation, for it was the first time that a state Supreme Court ruled that same-sex couples have the right to marry. There are still many existing faulty assumptions and arguments on same-sex marriages, including the perceived slippery slope argument that legalizing same-sex marriage will inevitably lead to other social minorities seeking marriage equality. Same-sex marriage entails many social and political issues that challenge the conservative idea of marriage; although it is currently one of most controversial subjects in our modern society, it will surely be a long time before same-sex marriage is fully accepted both constitutionally and socially.

Drawing parallel qualities between the two, elimination of anti-miscegenation ban in US’s history has always been used as an analogy to the recent controversy over same-sex marriage. On common grounds, both policies shared the same effect of stigmatizing a group of citizens, excluding them from substantive protection and benefits offered to others, as well as labeling them as ineligible to exercise the fundamental right to marry. Furthermore, a common argument between both policies is the equal application theory, which argues that as long as discrimination accounts for all minorities, it is valid to implicate it. Virginia had applied this argument in Loving vs. Virginia, arguing that the Equal Protection Clause contained the application of punishment for both whites and blacks (both parties of an interracial marriage are punished to the same degree) thus it does not constitute discrimination based upon race. In the case of Baehr vs. Lewin, Judge Heen found that it is not unconstitutional to ban same-sex marriages, for Hawaii Revised Statute § 572-1 applied to both sexes (neither male or female may obtain a marriage license with a partner of the same sex). Of course, the analogy is not without its flaws. For example, the ban on same-sex marriage was never identified as an instrument to impose heterosexual supremacy, whereas the ban on interracial marriage was clearly established to perpetuate and develop white supremacy. There are still numerous contrasts between the two policies, including the procreation argument (interracial couples may reproduce whereas same-sex couples cannot). Nonetheless, the triumph over eliminating the ban on miscegenation provides a foundation to legalize same-sex marriage, proving that there is hope for equality. The campaign for same-sex marriage is not pushed forward solely by gay activists but also from the influence from precedent civil rights advocates, which laid the foundation and accomplished a milestone for marriage equality.

Marriage is an engagement to legislations and limitations bounded by society’s standards and continues to battle for equality. Through the lens of interracial and same-sex marriages, it is clear that the matrimony of two human beings is “an institution that apes the oppressive market, with its assumptions of ‘ownership’ and ‘exclusivity’” (Eskridge “Sexuality”, 795). Gay rights supporters today still live in the hopes of marriage equality and continue to fight for it every day. Illinois has recently passed the legislature’s approval of a bill to create same-sex civil unions and if succeed, it will become the sixth state to grant the right to civil union. These small changes and improvements are fundamental to seek marriage equality for same-sex couples and they act as stepping stones to victory. While this outcome may take years to achieve, the history of miscegenation marriage can serve as a map of the developmental process that is occurring in same-sex marriage now. It will continue to be a battle against ignorance and faulty assumptions, but there is light in the search for “liberty and justice for all.”

References

Eskridge, William. "The Constitutional Case: Discrimination." The Case For Same-Sex Marriage. New York: The Free Press, 1996. 153-182.

Eskridge, William and Nan Hunter. Sexuality, Gender and the Law. New York: The Foundation Press, 1997 and 2009.

Pascoe, Peggy. "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America." Journal of American History 83 (June 1996):44-69.