Battalora: Same-sex marriage and lessons from the past
By Jacqueline Battalora April 5, 2013 9:00PM
Updated: May 8, 2013 6:35AM
It was not that long ago when the most important item on the political agenda for white people was prohibiting marriage between a white person and a nonwhite person.
The prohibition of such marriages was called an antimiscegenation law, and they existed for more than 300 years until being found unconstitutional by the U.S. Supreme Court in Loving vs. Virginia in 1967.
The rationale used to deny the marriage of a white to a nonwhite person included the claim that they produced “mongrel” children and a “degraded” civilization, that it was a violation of nature and God’s law and that such marriages threatened civil society.
These are not unfamiliar arguments in the contemporary debate over same-sex marriage.
The Pennsylvania Supreme Court in 1867 could just as easily have been addressing same-sex marriage when it justified racial separation on public transportation by stating (parenthetical added), “Why the Creator made one black (male) and the other white (female), we do not know, but the fact is apparent, and the races (sexes) are distinct. ... The natural law which forbids their intermarriage (same-sex marriage) and that social amalgamation which leads to a corruption of the races (humanity) is clearly divine as that which imparted to them different natures …”
Similarly, the Georgia Appellate Court could have been supporting the prohibition of same-sex marriage when it stated in a 1869 decision (parenthetical added), “The legislature had as much right to regulate marriage between persons of different races (the same sex) as to prohibit it between the Levitical degrees, or between idiots. ... Social equality between the races (heterosexuals and homosexuals) does not in fact exist, and never can. The God of nature made it otherwise …”
And the Oklahoma Appellate Court in 1924 could have been supporting a prohibition of same-sex marriage as enlightened policy when it provided (parenthetical added), “The purity of public morals, the moral and physical development of both races (sexes), and the highest advancement of civilizations, under which the two races (sexes) must work out and accomplish their destiny, all require that they should be kept distinctly separate (that only opposite-sex marriage be permitted), and that connections and alliances so unnatural (as same-sex alliances) should be prohibited ...”
Members of Congress today who support the Defense of Marriage Act (DOMA) sound a lot like these judges of the past. Whereas white supremacy was the guiding principle for racial separation, heterosexual supremacy serves this purpose for support of DOMA.
What might we take away from the history of antimiscegenation law that can inform us about same-sex marriage today and the next public debate of tomorrow?
Antimiscegenation case law reveals that God and nature were used as weapons of hatred. Claims of God’s intent or natural law must be met with suspicion. If nature and God are removed as justification, what is left?
Similarly, claims that civility and public morals are threatened must be met with healthy suspicion and many questions. Why must the prohibition be kept? Who benefits and how? Who is harmed and how?
What is the fear if the prohibition is removed? Is that fear substantiated? How have other countries fared that removed the prohibition? Did they experience a “slippery slope” effect?
What is the social hierarchy enforced through the exclusion? Is that hierarchy simply a new form of supremacy that ensures unequal freedom and opportunity? Are the ideals of the nation advanced by the prohibition?
The history of antimiscegenation law suggests that our prejudices run deep in shaping our interpretations of God, nature and morality.
If we hope to move beyond the prevailing prejudices of our cultural moment, we must learn to be suspicious of certain claims and strong critical thinkers. The questions that we ask and don’t ask speak volumes about our morality and civility.
Jacqueline Battalora is an associate professor of sociology and criminal justice at St. Xavier University in Chicago.