Hostname: page-component-cd9895bd7-mkpzs Total loading time: 0 Render date: 2024-12-25T21:44:46.385Z Has data issue: false hasContentIssue false
  • English
  • Français

The Miscegenation/Same-Sex Marriage Analogy: What Can We Learn from Legal History?

Published online by Cambridge University Press:  27 December 2018

Julie Novkov
Get access Rights & Permissions [Opens in a new window]

Abstract

It has become commonplace among historically inclined legal scholars to look to the history of the United States’ elimination of bans on mixed-race sexual relationships for guidance about the recent controversy over same-sex marriage. This article argues that, while the analogy is helpful, it is not perfect because of the particular historical circumstances of the battle over antimiscegenation laws. Because regulations against interracial marriage were at the heart of defining and perpetuating the political and institutional system of white supremacy, they served a different purpose than the bans on same-sex marriage. The analogy can be pursued, however, to promote a critical consideration of the history of marriage as a heteronormative institution, generating a broader agenda for empowering change. Such a use of history takes the experience of the struggle against the antimiscegenation regime as a cautionary tale rather than a guidepost.

Type
Articles
Information
Law & Social Inquiry , Volume 33 , Issue 2 , Spring 2008 , pp. 345 - 386
Copyright
Copyright © American Bar Foundation, 2008 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Andersen, Ellen Ann. 2004. Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Ann Arbor: University of Michigan Press.Google Scholar
Bank, Steven. 1995. Anti-Miscegenation Laws and the Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of 1875. University of Chicago Law School Roundtable 2:303–44.Google Scholar
Blasius, Mark, ed. 2001. Sexual Identities, Queer Politics, and the Status of Knowledge. In Sexual Identities, Queer Politics. Princeton, NJ: Princeton University Press.Google Scholar
Canaday, Margot. 2003. Building a Straight State: Sexuality and Social Citizenship under the 1944 G.I. Bill. Journal of American History 90:935–54.Google Scholar
Chomsky, Daniel, and Barclay, Scott. 2006. Shaping the Same Sex Marriage Discussion: Mass Media, Government Action, Social Demographic Factors, and Public Opinion in the States. Paper presented at the annual meeting of the American Political Science Association (APSA), August 31–September 3, Philadelphia, PA.Google Scholar
Cohen, Cathy. 2001. Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics? In Sexual Identities, Queer Politics, ed. Blasius, Mark. Princeton, NJ: Princeton University Press.Google Scholar
Colker, Ruth. 1996. Hybrids: Bisexuals, Multiracials, and Other Misfits under American Law. New York: New York University Press.Google Scholar
Cott, Nancy. 2000. Public Vows: A History of Marriage and the Nation. Cambridge, MA: Harvard University Press.Google Scholar
Dubler, Ariela. 1998. Governing Through Contract: Common Law Marriage in the Nineteenth Century. Yale Law Journal 107:1885–920.Google Scholar
Egan, Patrick, and Sherrill, Kenneth. 2005. LGBT People and Same-Sex Marriage. PS: Political Science and Politics 38 (2): 229–32.Google Scholar
Eskridge, William. 1999. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, MA: Harvard University Press.Google Scholar
Fields, Barbara J. 1982. Ideology and Race in American History. In Region, Race, and Reconstruction: Essays in Honor of C. Vann Woodward, ed. Kousser, J. Morgan and McPherson, James M. New York: Oxford University Press.Google Scholar
Frymer, Paul. 2005. Racism Revised: Courts, Labor Law and the Institutional Construction of Racial Animus. American Political Science Review 99:373–87.Google Scholar
Goldberg, David Theo. 2002. The Racial State. Malden, MA: Blackwell Publishing.Google Scholar
Grossberg, Michael. 1985. Governing the Hearth: Law and the Family in Nineteenth Century America. Chapel Hill: University of North Carolina Press.Google Scholar
Hale, Grace Elizabeth. 1998. Making Whiteness: The Culture of Segregation in the South, 1890–1940. New York: Pantheon Books.Google Scholar
Hodes, Martha. 1997. White Women, Black Men: Illicit Sex in the Nineteenth-Century South. New Haven, CT: Yale University Press.Google Scholar
Kaplan, Sidney. 1949. The Miscegenation Issue in the Election of 1864. Journal of Negro History 34 (3): 274–343.Google Scholar
Kennedy, Randall. 2003. Interracial Intimacies: Sex, Marriage, Identity, and Adoption. New York: Pantheon Books.Google Scholar
Kull, Andrew. 1992. The Color-Blind Constitution. Cambridge, MA: Harvard University Press.Google Scholar
Luker, Kristin. 1984. Abortion and the Politics of Motherhood. Berkeley and Los Angeles: University of California Press.Google Scholar
MacKinnon, Catharine. 1989. Toward a Feminist Theory of the State. Cambridge, MA: Harvard University Press.Google Scholar
Marcosson, Samuel. 1998. Colorizing the Constitution of Originalism: Clarence Thomas at the Rubicon. Law and Inequality 16:429–91.Google Scholar
McConnell, Michael. 1995. Originalism and the Desegregation Decisions. Virginia Law Review 81:947–1140.Google Scholar
McGrew, Jannell, and Davis, John. 2005. Same-Sex Marriage Ban Clears Hurdle. Montgomery Advertiser, February 9.Google Scholar
Novkov, Julie. 2002. Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890–1934. Law and History Review 20:225–77.Google Scholar
Novkov, Julie. 2006. Pace v. Alabama: Interracial Love, the Marriage Contract, and Post-bellum Foundations of the Family. In The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersch, Kenneth. Lawrence: University of Kansas Press.Google Scholar
Pascoe, Peggy. 1996. Miscegenation Law, Court Cases, and Ideologies of “Race” in Twentieth-Century America. Journal of American History 83:44–69.Google Scholar
Pascoe, Peggy. 2000. Sex, Gender, and Same-Sex Marriage. In Is Academic Feminism Dead? Theory in Practice, ed. Group, Social Justice at the Center for Advanced Feminist Studies, University of Minnesota. New York: New York University Press.Google Scholar
Pinello, Daniel. 2006. America's Struggle for Same-Sex Marriage. New York: Cambridge University Press.Google Scholar
Ritter, Gretchen. 2006. The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order. Stanford, CA: Stanford University Press.Google Scholar
Robinson, Charles F. 2003. Dangerous Liaisons: Sex and Love in the Segregated South. Fayetteville: University of Arkansas Press.Google Scholar
Robson, Ruthann. 1992. Lesbian (Out)Law: Survival Under the Rule of Law. Ann Arbor, MI: Firebrand Books.Google Scholar
Romano, Renee. 2003. Race Mixing: Black-White Marriage in Postwar America. Cambridge, MA: Harvard University Press.Google Scholar
Sherrill, Kenneth. 1996. The Political Power of Lesbians, Gays, and Bisexuals. PS: Political Science and Politics 29:469–73.Google Scholar
Siegel, Reva. 2002. She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family. Harvard Law Review 115:947–1046.Google Scholar
Siegel, Reva. 2004. Equality Talk: Anti-subordination and Anti-classification Values in Constitutional Struggles over Brown . Harvard Law Review 117:1470–1547.Google Scholar
Stanley, Amy Dru. 1998. From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation. Cambridge: Cambridge University Press.Google Scholar
Strach, Patricia. 2007. All in the Family: The Private Roots of American Public Policy. Stanford, CA: Stanford University Press.Google Scholar
Stychin, Carl. 1998. A Nation By Rights: National Cultures, Sexual Identity Politics, and the Discourse of Rights. Philadelphia: Temple University Press.Google Scholar
Wallenstein, Peter. 2002. Tell the Court I Love My Wife: Race, Marriage, and the Law—An American History. New York: Palgrave MacMillan.Google Scholar
Yamin, Priscilla. 2005. Nuptial Nation: Marriage and the Politics of Civic Membership in the United States. PhD diss., Department of Political Science, New School University, New York, NY.Google Scholar