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

Authors


  • Julie Novkov has been an Associate Professor of Political Science and Women's Studies at the University at Albany, SUNY since Fall 2006. Previously, she was a faculty member at the University of Oregon, where she also served as the Director of Women's and Gender Studies from 2004–2006. Novkov is the author of other scholarly works concerning the legal construction of subordinated identity and constitutional development in the United States. She served on the American Political Science Association's Committee on the Status of Lesbians, Gays, Bisexuals, and the Transgendered in the Profession from 2003–2006.

    This article was presented at the 2005 Law and Society Association's annual meeting. She thanks Priscilla Yamin, Lennie Feldman, Lizzie Reis, Kevin Kruse, and Gerry Berk for their help. The article has also benefited greatly from the careful and critical attention of anonymous referees for Law & Social Inquiry. Most of all, she thanks Peggy Pascoe, whose comments were very helpful and whose lengthy engagement with these questions has enlightened us all. Correspondence may be directed to the author at jnovkov@albany.edu.

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.

Ancillary