Skip to main content Accessibility help
×
Home

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

  • Julie Novkov

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.

Copyright

References

Hide All
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.
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.
Blasius, Mark, ed. 2001. Sexual Identities, Queer Politics, and the Status of Knowledge. In Sexual Identities, Queer Politics. Princeton, NJ: Princeton University Press.
Canaday, Margot. 2003. Building a Straight State: Sexuality and Social Citizenship under the 1944 G.I. Bill. Journal of American History 90:935–54.
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.
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.
Colker, Ruth. 1996. Hybrids: Bisexuals, Multiracials, and Other Misfits under American Law. New York: New York University Press.
Cott, Nancy. 2000. Public Vows: A History of Marriage and the Nation. Cambridge, MA: Harvard University Press.
Dubler, Ariela. 1998. Governing Through Contract: Common Law Marriage in the Nineteenth Century. Yale Law Journal 107:1885–920.
Egan, Patrick, and Sherrill, Kenneth. 2005. LGBT People and Same-Sex Marriage. PS: Political Science and Politics 38 (2): 229–32.
Eskridge, William. 1999. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, MA: Harvard University Press.
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.
Frymer, Paul. 2005. Racism Revised: Courts, Labor Law and the Institutional Construction of Racial Animus. American Political Science Review 99:373–87.
Goldberg, David Theo. 2002. The Racial State. Malden, MA: Blackwell Publishing.
Grossberg, Michael. 1985. Governing the Hearth: Law and the Family in Nineteenth Century America. Chapel Hill: University of North Carolina Press.
Hale, Grace Elizabeth. 1998. Making Whiteness: The Culture of Segregation in the South, 1890–1940. New York: Pantheon Books.
Hodes, Martha. 1997. White Women, Black Men: Illicit Sex in the Nineteenth-Century South. New Haven, CT: Yale University Press.
Kaplan, Sidney. 1949. The Miscegenation Issue in the Election of 1864. Journal of Negro History 34 (3): 274343.
Kennedy, Randall. 2003. Interracial Intimacies: Sex, Marriage, Identity, and Adoption. New York: Pantheon Books.
Kull, Andrew. 1992. The Color-Blind Constitution. Cambridge, MA: Harvard University Press.
Luker, Kristin. 1984. Abortion and the Politics of Motherhood. Berkeley and Los Angeles: University of California Press.
MacKinnon, Catharine. 1989. Toward a Feminist Theory of the State. Cambridge, MA: Harvard University Press.
Marcosson, Samuel. 1998. Colorizing the Constitution of Originalism: Clarence Thomas at the Rubicon. Law and Inequality 16:429–91.
McConnell, Michael. 1995. Originalism and the Desegregation Decisions. Virginia Law Review 81:9471140.
McGrew, Jannell, and Davis, John. 2005. Same-Sex Marriage Ban Clears Hurdle. Montgomery Advertiser, February 9.
Novkov, Julie. 2002. Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890–1934. Law and History Review 20:225–77.
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.
Pascoe, Peggy. 1996. Miscegenation Law, Court Cases, and Ideologies of “Race” in Twentieth-Century America. Journal of American History 83:4469.
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.
Pinello, Daniel. 2006. America's Struggle for Same-Sex Marriage. New York: Cambridge University Press.
Ritter, Gretchen. 2006. The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order. Stanford, CA: Stanford University Press.
Robinson, Charles F. 2003. Dangerous Liaisons: Sex and Love in the Segregated South. Fayetteville: University of Arkansas Press.
Robson, Ruthann. 1992. Lesbian (Out)Law: Survival Under the Rule of Law. Ann Arbor, MI: Firebrand Books.
Romano, Renee. 2003. Race Mixing: Black-White Marriage in Postwar America. Cambridge, MA: Harvard University Press.
Sherrill, Kenneth. 1996. The Political Power of Lesbians, Gays, and Bisexuals. PS: Political Science and Politics 29:469–73.
Siegel, Reva. 2002. She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family. Harvard Law Review 115:9471046.
Siegel, Reva. 2004. Equality Talk: Anti-subordination and Anti-classification Values in Constitutional Struggles over Brown . Harvard Law Review 117:14701547.
Stanley, Amy Dru. 1998. From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation. Cambridge: Cambridge University Press.
Strach, Patricia. 2007. All in the Family: The Private Roots of American Public Policy. Stanford, CA: Stanford University Press.
Stychin, Carl. 1998. A Nation By Rights: National Cultures, Sexual Identity Politics, and the Discourse of Rights. Philadelphia: Temple University Press.
Wallenstein, Peter. 2002. Tell the Court I Love My Wife: Race, Marriage, and the Law—An American History. New York: Palgrave MacMillan.
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.

Metrics

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed