Final Paper! Aly Fritz

The Institution of Marriage

Marriage is the societal legitimation of a relationship, but has only been accessible to particular groups in our society. The history of marriage laws have progressed through specific cases such as Loving v. Virginia and Baehr v. Lewin which allow the courts to decide if it is constitutional to exclude particular groups from the right to marry. This separation is an example of the pre-conceived notions that interracial and same sex relationships should not be celebrated or embraced in our culture. Therefore, the law becomes a social construction that creates a hierarchy of citizens based on race and sexuality. The notions society possesses are often due to skewed ideologies that suggest that these partnerships will negatively affect society and ruin the tradition of our nation, among many other perceptions. There is a clear parallel between the bans on interracial marriage and same sex marriage when used as a medium of exclusion and discrimination, but they also share differences in the various arguments society deploys against them.

Before 1967, interracial marriage was against the law in the United States; this was a strong indication of the levels of class within race and the societal fear surrounding the mixture of race in relationships. When this law was challenged in the Loving v. Virginia case, a unanimous U.S. Supreme Court ruled it unconstitutional to prohibit a man and woman of any race from marrying one another. Under the judicial philosophy of strict scrutiny, marriage was declared as a fundamental right that each citizen possesses.This landmark case set a precedent for all mixed race couples and changed the face of marriage in America. The illegitimate reasoning behind separating races in marriages represented a superiority of Whites and an attempt at “racial purity.” Regardless of its constitutional invalidity, the ban reflects a highly discriminatory society that allowed racist ideologies to overpower equality through the law. David Pino supports this argument when writing, “These Draconian laws were discriminatory to both white and non-whites as it restricted their fundamental right to marriage. However, the people most stigmatized by this law were minorities because of the pervasively racist climate in America at the time.” These hateful notions were revealed not only in society, but in the courts as well. When attempting to prove the constitutionality of banning interracial marriage, the state of Virginia referred back to the 1955 case Naim v. Naim when “the state court concluded that the State's legitimate purposes were to 'preserve the racial integrity of its citizens,' and to prevent the 'corruption of blood,' a 'mongrel breed of citizens,' and the 'obliteration of racial pride,' obviously an endorsement of the doctrine of White Supremacy” (Eskridge 796). The argument was constructed in a way that places a completely negative connotation on mixed raced citizens. It also suggests that marriage is structured solely around reproduction, and is only useful and purposeful because of the idea that these “racially pure” couples will procreate. These notions were completely denied by the Supreme Court which forever demolished the restriction on interracial couples joining in marriage.

Same sex marriage is still banned today and is burdened by an extensive list of criticisms from society and the government. Based on past court cases, gay marriage has been judged under rational basis, therefore making it very difficult for significant progress to occur. Rational basis is the lowest level of judicial review, used when deciding cases regarding constitutional due process and equal protection laws. For example, in 1993 a case named Baehr v. Lewin resulted in the first positive step toward marriage equality for homosexual couples. The Hawaii Supreme Court declared that based on the state constitution it was illegal to deny marriage licenses to same sex couples. “Article I, Section 5 of the Hawaii Constitution provides in relevant part that “no person shall... be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry” (Eskridge 811). Unfortunately, years later the Hawaii constitution was amended to deny gay marriage. This change to their constitution suggests that denying a fundamental right to any citizen of our country is unconstitutional, yet the homophobic ideologies in society overpower this obvious truth. Many contemporary Americans view homosexuality as something that will increase and eventually fester in our society if these unions become acceptable by law. The homophobic perspective often includes a fear of gay marriage becoming so common that it is being taught in schools, and creating a society that gives power to the homosexual community. This fear of power suggests that an awareness and acceptance of gay marriage will create more gays which will limit procreation and corrupt modern day society. Such an invalid argument reveals that this perspective holds a misunderstanding of the fact that being gay is not a choice. In addition, “compromises” have been made that give benefits to homosexual couples without the title of marriage. Like David Pino writes, “Instead of marriage, some states allow civil unions and domestic partnerships, which have some but not all of the benefits that a marriage is guaranteed. Section 3 of The Defense of Marriage Act (DOMA) interprets marriage as 'only a legal union between one man and one woman.'” This further suggests that heterosexists are afraid to share the title of marriage with homosexuals because they are not viewed as equals.The faulty arguments of society against same sex couples continuously influence the ban on their right to marry.

Both interracial and same sex marriage have been banned as a tool of discrimination, but same sex marriage continues to be banned due mainly to society's ongoing misconceptions of homosexuality. As Maeve writes, “Granting marriage to one group but not another reaffirms the superiority of the first group at the expense of the second, and has simultaneous legal and social consequences for the restricted group.” An example of one of these consequences occurred in May of 2009. Governor Baldacci of Maine signed a gay marriage bill into law which was a vast progression for the gay community. Yet as predicted, Maine voters overturned the law in November. This past event demonstrated that the law clearly conveys marriage as a fundamental right and is stated in many Constitutions. Yet when society holds power in the decision to keep same sex marriage banned, due to their personal opinions, true progression becomes seemingly impossible. “People's personal views of the appropriateness of same sex relationships naturally influence their views...it is important to remember that the legal question does not, and under our Constitution cannot, depend on people's personal preferences” (Boies 1). The separation of church and state becomes clouded when religious arguments play a role in society's criticisms. They often argue that the bible defines marriage as only pertaining to a man and a woman. Yet this argument should not remotely affect a political decision, nor should the argument of tradition. Neither influence the clearly stated rights of our Constitution, and all citizens must be represented and treated equally. Contemporary Americans possess a fear of homosexuals gaining power and by keeping this right from them, they can more easily control the views and actions of society. This imbalance of power makes progression for the minority very difficult.

Law is extremely powerful as a social construction because it formulates the guidelines of our society, along with reflecting the majority opinion of acceptable behavior through the voting system. The law that declares gay marriage illegal not only places a negative connotation on homosexuality, but gives power to the majority that is against the idea due to illogical opinions. It solidifies the fact that many Americans seeks to maintain a societal norm, and any diversity amongst that norm is unacceptable. Gabrielle Kozik makes a valid argument that states, “This heteronormative bias effectively creates an “ideal” norm and places it at the top of a hierarchy. The existence of this hierarchical phenomenon gives credence to the notion that marriage law and the meaning of marriage itself are interacting social constructions.” A hierarchy suggests societal inequality, and in the case of marriage, is structured around negative opinions and ideologies. Yet law is much more than an opinion, it is a set of rules we are demanded to follow and has the power to prevent us from experiencing true freedom of choice. The law is meant to prevent crime and to create guidelines that will build a strong society. Yet its role as a social construction affects the gay community by setting limitations on their fundamental rights. Marriage is structured around the laws allowing it to occur, and the ban of this institution for homosexuals represents their oppression and unapproved status in society. Because of the nation's voting on propositions and laws, illegitimate opinions and negative ideologies of homosexuality contribute to the continual ban.

Many skewed perceptions held by contemporary Americans and even the government have continually constructed marriage laws. Marriage is a desirable social institution which allows two people to celebrate their union and love for each other in a public way. As Maeve MacLysaght writes, “Marriage has always held a special affection with the American persona, transcending a legal status to be held as a social ideal.” While society's opinion should have no hold on legal decisions, it has certainly affected the history of marriage laws. Marriage has been a fundamental right that only applies to particular groups, which is unconstitutional and blatantly discriminatory. Interracial marriage and same sex marriage are desired by a minority of the population, and have continuously been rejected and looked down upon by society. Regardless of the criticisms and arguments held against both, nothing can take away from the right we possess as citizens.

Word Count: 1630

Aly Fritz

Eskridge, William. "A History of Same-Sex Marriage." The Case For Same-Sex Marriage. New York: The Free Press, 1996. 15-50.

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

Boies, David. Yes: It is a Fundamental Right Under the U.S. Constitution. Philly online, 2009.

Kozik, Gabrielle. “My Final Paper.” December 2010. http://csp19.blogspot.com

MacLysaght, Maeve. “Final Paper.” December 2010. http://csp19.blogspot.com

Pino, David. “Elevation to Equality.” December 2010. http://csp19.blogspot.com