Ruth Institute Blog

by David Schaengold

Another reason the analogy between same-sex marriage and interracial marriage fails.

Recently in Public Discourse, Francis Beckwith argued that the frequently invoked analogy between same-sex marriage and interracial marriage is flawed, and should not be used by advocates for the legal recognition of same-sex unions. As Beckwith wrote, this analogy is freighted with enormous moral and intellectual force, but it does not withstand examination. Bans on interracial marriage are not relevantly similar to current marriage law with respect to homosexuality.

Professor Beckwith specifically points out that bans on interracial marriage attempted to revise centuries of common law that had always allowed persons of different races to marry one another. Legal bans on the practice merely made illegal actions that had once been legal (and remained legal except in the few polities that enacted such bans), and which everyone understood to be possible by nature. This is an important difference from the current argument about the legal recognition of same-sex unions, which revolves in part around whether it is in fact possible for two people of the same sex to be married to each other. Professor Beckwith does not address another difference, one possibly even more important because it undermines the moral force of the analogy: bans on interracial marriage were formally discriminatory. Existing marriage law is not.

What I mean by formal discrimination is that laws banning interracial marriage explicitly banned interracial marriage. Those who sought to overturn these bans were seeking formal equality: not the addition of more laws to include them, but the subtraction of laws designed to exclude them. What they wanted was for race not to be mentioned in the law at all. By contrast, what proponents of same-sex marriage seek is a different kind of equality. They want the law to say that homosexuals should get to marry the kind of people they desire. Their claim might be right, but it is important to note that the law does not currently say “only heterosexuals get to marry the kind of people they desire.” The law makes no mention of heterosexuality at all, a concept that would have been foreign to the originators of current marriage law.

This is why opponents of the legal recognition of same-sex unions sometimes note that homosexual persons are already free to marry, so long as they marry someone of the opposite sex. It is understandable that this point strikes many as a bit glib, and no doubt it is sometimes meant to be. It underscores, however, the essential disanology between anti-miscegenation laws and current marriage law: proponents of same-sex marriage do not propose to extend an existing liberty to a broader class of people, but rather to change the nature of an existing legal institution to which all people, qua people, already have access.

Race and homosexuality do have an important characteristic in common. While the underlying trait that they identify (variation in skin color and ongoing sexual desire for individuals of the same sex, respectively), may have always existed, the people who have the trait were not always seen as forming a natural class. Both race and homosexuality are historical concepts that arose at a particular period in history. With respect to race, while people have probably always noted that human skin can be shaded in a wide variety of ways, it was not until the early modern period that anyone began to speak not merely of peoples constituted by ethnic, linguistic, or cultural similarities but of a much broader classification of all the world’s people into categories based on skin color. The trait itself did not suddenly become more pronounced—if anything, it is likely that in the early modern period shades of human skin around the world were growing less distinct as contact between geographically distant peoples became more common. Rather, for purely extraneous reasons, very probably economic reasons relating to the slave trade, a broadly shared understanding arose that individuals who shared the trait of dark or light skin color with others could be grouped with those others into a class. Roughly the same process occurred, though much later, with homosexuality. The idea that the human species is divided into classes of persons who permanently desire members of the same sex and persons who permanently desire members of the opposite sex is recent, and many of those responsible for creating this idea used it as a way of medicalizing or marginalizing the individuals newly singled out as “homosexuals.”

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