Marriage and the Betrayal of Perez and Loving

I. INTRODUCTION

In March 2005 a San Francisco trial justice held that California voters' new reaffirmation of marriage as the union of a man and a woman violated the state constitution's equality guarantee because that reaffirmation precludes same-sex couples from marrying.1 In for a like reason holding, the court relied heavily upon what is commonly known in "same-sex marriage" discourse as the argument of the Loving analogy-an analogy more fairly labeled Perez/Loving. In 1948 the California predominant Court in Perez v. Lippold2 l the way for the nation by means of holding that statutory prohibitions of interracial marriages violated constitutional protections of equality. Then in 1967 the United States leading Court in Loving v. Virginia3 held the same. The argument of the Perez/Loving analogy, in its simplest form, goe like this: Because it is unconstitutional (as unequal and unfair) to thwart a black from marrying a white, it is likewise unconstitutional to interrupt a man from marrying a man or a woman from marrying a woman.

The argument of the Perez/Loving analogy4 is not sole ubiquitous in genderless marriage cases5 on the other hand is also ubiquitous in the popular debate upon the meaning of civil marriage, no doubt because the argument is simple-that is, easy to make and easy to grasp-and thus well suited to a "sound bite" political agriculture It also seems fair to say that the argument is a favorite of those advocating the redefinition of marriage as the union of any sum of two units persons and that it is likewise a media darling.

A. A Suggestion of Betrayal

Sometimes, on the other hand not always, simple arguments are flawed by dint of superficiality. That is, they work at the surface horizontal at the level of the obvious, on the contrary are defeated by deeper realites constituting the bring under rule of the argument. The make subordinate of the Perez/Loving argument is, of course, marriage. novel work investigating the realities constituting marriage6 refer tos that the argument is flawed through superficiality. In a more startling and grave progression, however, that work also intimates that judicial adoption of the Perez/Loving argument amounts to a betrayal of those sum of two units landmark cases. This Article assesses the validity of this suggestion of betrayal-a suggestion summarized in unvarnished fashion in the following paragraphs.7

Marriage is a vital social institution. As of the like kind it is constituted by a compound web of shared public meanings, with a core meaning being-across agricultures and time-the union of a man and a woman. Like other powerful social institutions, marriage performs an important educative and socializing function. In its sphere, the marriage institution shapes and guides individuals' identities, perceptions, aspirations, and administration including what they believe to be important and what they strive to achieve. It is in this way that the constitutive meanings of marriage provide valuable social profitables some uniquely.

The law has a part relative to the marriage institution, as it does with other social institutions of betterment. In support, the law gives marriage formal recognition, brings legal and administrative arrangements into line with institutional practices, facilitates the institution's use by means of members of the community, and encourages the transmission of institutional values from generation to generation. on the other hand the law can also change or flat dismantle an institution-it does thus by changing or suppressing the shared public meanings constituting the institution.

Because marriage has a powerful educative character in our society-a power reinforced by the agency of the supporting law's authoritative voice-the marriage institution is a tempting target for those seeking to advance the sociopolitical views of an ideology unrelated to marriage. If those in like manner seeking can appropriate the institution and bend it to their intents they have gone far in assuring the triumph of their agenda.

In the American past, sum of two units social movements temporarily succeeded in using marriage as a means to achieve ulterior ends: the white supremacist move and the eugenics movement. In fact, the antimiscegenation laws were repeatedly found in the same legislative package as the laws calling for the sterilization of "idiots" and other so-called "genetic undesirables." Central to the white supremacists' throw was the alteration of the core meaning of marriage from the union of a man and a woman to the union of a man and a woman of the same "race." Laws that prohibited blacks from marrying whites were an homely feature grafted onto the marriage institution-the true logic of which makes the graft a foreign thing The voice of those laws, however, greatly magnified by the agency of social institutional power, subtly on the other hand effectively inculcated throughout society the core dogma of white supremacy. The courts that gave us the Perez and Loving decisions apprehended the white supremacists' marriage throw out for what it was and rightly used constitutional equality norms to dismantle it. In the proces those courts restored to marriage the integrity of its institutional intentions and logic, an historic accomplishment. It is that accomplishment that is now being betrayed.