Black Lawyers to SCOTUS: We've Heard These Anti-Marriage Equality Arguments Before

Are same-gender marriage bans recycled Jim Crow-era tactics? Howard University is urging the Supreme Court to overturn Prop 8.

This article was published by the Center for American Progress.


The Howard University School of Law is one of the oldest law schools in the country and the oldest law school at any historically black college or university (HBCU). Its Civil Rights Clinic has filed an amicus brief urging the Supreme Court to overturn Proposition 8 by highlighting how all of the arguments against same-gender marriage equality are simply recycled variations on arguments that were used to justify prohibitions of interracial marriage until Loving v. Virginia was decided in 1967 (citations omitted):

In the Jim Crow era, the denial of marriage rights to interracial couples served as one of the most potent symbols of the less-than-equal status of  African-Americans. As recently as 1967, sixteen states still had anti-miscegenation statutes on their books; the last such statute was not officially repealed until 2000. Opponents of interracial marriage justified criminal prohibitions against such unions by pointing to the purported detrimental effect of interracial births and parentage, the supposed destruction of society if people marry between the races, and the so-called natural law rationale for keeping the races separate.

While public debate over interracial unions has generally died since Loving v. Virginia, today the opposition to marriage for same-sex couples relies on arguments strikingly similar to those raised in opposition to interracial marriage. Without acknowledging the racial provenance of these discredited arguments, opponents of marriage equality have attacked same-sex couples as a threat to American society, American families and heterosexual marriage, as an affront to the laws of God and nature, and as a menace to their children.

The brief goes on to highlight five distinct arguments that transcend the debates between marriage equality for interracial couples and marriage equality for same-gender couples:

  • SOCIAL ORDER: Marriage equality is a threat to the social order and would "introduce a form of pollution to marriage."
  • SEXUALIZATION: The people who want to get married have relationships that are purely sexual, promiscuous, and "deviant."
  • PSEUDOSCIENCE: Researchers have distorted research to raise fears about supposed consequences of marriage equality.
  • JUDEO-CHRISTIAN VALUES: The Bible forbids recognizing these relationships.
  • CHILDREN: These relationships will cause physical and psychological damage to the children they raise.

The similarities are jarring, and Howard provides plenty of examples for each to demonstrate just how unoriginal the arguments against same-gender marriage truly are. The brief concludes with this stirring rebuke of equality's opponents, including a quote from gay Black poet James Baldwin:

But the certainty and monotony with which some will always sound the death knell for society, morality, and faith, just because two adults choose to marry, cannot obscure the reality that we heard virtually the same arguments for almost three hundred years to justify preventing two black people from marrying and then a black man from marrying a white woman. Nor, when all is said and done, can these jeremiads about how marriage equality for same-sex couples will lead to our final slouching toward Gomorrah obscure the reality that it is "an inexorable law that one cannot deny the humanity of another without diminishing one's own."

(HT: Kathleen Perrin.)

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