HPRgument Blog, United States — February 10, 2010 8:50 am

Perry: The New Loving?

By Sam Barr

In today’s Crimson, Avishai Don argues that, if California’s voter-approved gay marriage ban is upheld in the courts, it will “legitimize the concerns of the segregationists four decades ago.”

But the correlation between Perry v. Schwarzenegger and Loving v. Virginia is, legally speaking, less than one-to-one, even though the comparison makes for a compelling emotional argument. Yes, it’s true that the only recourse for defenders of Prop 8 is to say that, while marriage is a fundamental right, gay marriage is not really marriage. But their argument, while not persuasive to me, is at least marginally more plausible than that of the anti-miscegenationists.

As always, the most fundamental issue, underlying all the others, is what one takes to be the purpose of marriage. There are basically two schools of thought: you might call them the procreationist and the emotionalist schools. For the former, marriage can only be between a man and a woman because only that coupling can naturally produce children, and thereby create a family, which is understood as the main purpose of marriage. For the latter, marriage is a social and emotional union, an agreement to provide mutual support, and all it requires, therefore, is two people who love each other.

Notice that, no matter which school you belong to, anti-miscengenation laws are totally unjustifiable. Blacks and whites are of course capable of reproducing together, and all the evidence provided by the wonderfully named Loving couple was that they are capable of emotional bonds as well.

But this doesn’t hold for gay marriage. Only one school of thought regarding marriage’s purpose can underlie support for gay marriage. So, while it is true, as Don says, that supporters of miscegenation cited natural-law arguments, and while this fact should color one’s response to the natural-law arguments currently being put forward to deny gays the right to marry, it is not true that there’s a one-to-one correspondence between the two cases.

The federal courts could uphold Proposition 8 (a result I abhor) without “tossing into the dustbin the reasoning that the Supreme Court used in Loving.” In Loving, the Court recognized that single-race couples and mixed-race couples were in perfectly analogous situations, and like cases ought to be treated alike. It’s less obvious that heterosexual and homosexual couples are also analogues of one another. It all depends on what you think marriage is for.

Photo credit: Flickr stream of Dave Schumaker

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Author: Sam Barr '11, a government concentrator, was the Editor-in-Chief of the Harvard Political Review in 2010.
  • Jeremy Patashnik

    I think affording civil rights based on “perfectly analogous” conditions is a dangerous precedent. Suppose a man and a woman wanted to marry, but the woman is physiologically incapable of having children. This situation is clearly no longer perfectly analogous to a marriage between an ordinary man and woman, so if a state passed a law banning such a union, would it be constitutional? Would you need the Americans with Disabilities Act to legally justify such a marriage?

  • Sam Barr

    I should have said “relevantly analogous” instead of “perfectly analogous.” There are going to be many ways in which people’s situations differ, but the question is whether they are relevantly different such that you don’t have to abide by the principle “treat like cases alike.”

    So, according to the traditionalist/procreationist conception of marriage, the straight couple that can’t conceive is not relevantly different from the straight couple that can conceive — they both are fulfilling the purpose of marriage, which is the union of people who are, in principle if not practice, capable of forming a family.

    Obviously this whole “in principle if not practice” thing makes the whole procreationist point of view suspect. But notice also that the two couples are relevantly analogous when you look at it from an emotionalist or modern standpoint towards marriage.

    My only point is that we have to wrestle with these definitions and purposes of marriage before we can really identify which people are and are not in relevantly analogous situations.

  • Jeremy Patashnik

    And my point was that “analogous”–regardless of the modifier that precedes it–is itself ambiguous. Now, of course we can see that an interracial couple is analogous to a same-race couple, but I’m sure there were many people who would have disagreed with that in 1967. In 43 years, society may look back on us and wonder why we didn’t consider same-sex couples analogous.

    Here’s what I’m really trying to say: There are a lot of things that society (or some component thereof) frowns upon for no legitimate reason. Gay marriage is one of those things. Plenty of people try to rationalize their opposition to it, but in the end, they really just think it’s wrong. You hint at this yourself when you point out that the “in principle if not practice” thing makes the whole argument suspect.

    In general, I don’t think it’s a problem for societal norms that exist for no good reason to dictate behavior, but once a movement starts that brings to light the fact that a certain norm is nonsensical, society ought to recognize this and get out of the way.

    I think ultimately, the gay marriage question just requires society to gradually come to this conclusion.

  • Sam Barr

    I’m just saying, this is how lawyers and judges think. It’s a very structured sort of analysis. They don’t just say “well, this is sort of like that, and we said this about that, so I guess we have to conclude this.” They try to be very explicit, when they’re doing their jobs right, about the premises and criteria that they are using to make legal analogies.

    And one of the premises for the Loving comparison HAS to be the emotionalist, modernist view of marriage. So it’s not right to make the comparison, as if it were obvious to anyone with a brain, without also making the argument for that conception of marriage. Which I think is the right one, by the way.

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