Race, Gender and Justice: Re-thinking Representation Spring 2002
	Gender & Marriage: Baehr v. Lewin   Friday, April 5, 2002

We shall be discussing the construction of gender and sex today, in the context of marriage law.
The cases we will be dealing with are Baehr v. Lewin, Singer v. Hara, Zablocki v. Redhail and Turner v. Safely, and, of course, Loving v. Virginia.

We shall be analogizing the scientific and social construction of sex and gender with the irrational and sometimes confusing construction of race. However, by looking at the differences in the way that the law has treated interracial marriage from the way it has treated homosexual marriage we will expose and analyze scripts based on these two reified characteristics: race and gender.

For example, just as we ask ourselves "What is the purpose behind anti-miscegenation law?" we should also ask ourselves "What is the purpose behind the ban on same-sex marriage?" Happily, we have the texts of numerous legal decisions in both areas which give us a number of opportunities to analyze the scripts of race and gender.
 
Loving v. Virginia (1967)
The United States Supreme Court invalidated Virginia's prohibition of different-race marriage as a violation of both the equal protection and due process clauses. The decision explicitly overruled Pace v. Alabama (1883 case in which the Court upheld a statute which criminalized interracial adultery more harshly than homoracial adultery). In defense of its anti-miscegenation law, Virginia cited the disapproval of different-race marriage by religious and moral traditions. The Court rejected this argument and characterized the statute as a "repugnant" attempt to "maintain White Supremacy." This decision initiated the "right to marry" line of cases (followed up in Zablocki and Turner)..

Baehr v Lewin (1993)
The Hawaii State Supreme Court held that the state's denial of marrriage rights to same-sex
couples is sex discrimination under the state constitution's equal rights amendment and remanded
the case for trial to determine whether the discrimination could be justified by a compelling state
interest. In December 1996, a Hawaii Trial Court found in Baehr v. Miike that the state's interest
in supporting the upbringing of children in particular kinds of households uncompelling and ruled
that Hawaii must begin issuing marriage licenses regardless of gender. The judge then granted a stay on
his decision until the Hawaii Supreme Court could rule on the state's appeal. Before the Hawaii Supreme Court could rule the voters of Hawaii amended their constitution to empower their legislature to restrict marriage to mixed-sex couples, thus voiding the Baehr lawsuit.

Singer v. Hara (1974)
The Washington State Court of Appeals upheld against both state and federal constitutional
attack Washington's denial of marriage rights to same-sex couples. The court both denied that
the marriage law involved a sex classification and used a definitional argument to exclude
same-sex couples from the institution of marriage. This was the first reported case to reject an
argument that denying same-sex couples the right to marry is sex discrimination in violation of the
state constitution's equal rights amendment.

Zablocki v. Redhail (1978)
The Court invalidated Wisconsin's bar to remarriage when one partner has unpaid support obligations from a previous marriage. Emphasizing the state's interference with Loving's right to marry, the Court held that the law violated the equal protection clause by discriminating in the allocation of this fundamental right.

Turner v. Safely (1987)
The Court invalidated Missouri's almost complete bar to marriage by prison inmates. Although the Court deferred to state rules regulating prisoners, it held that denial of the right to marry requires more rigorous justification because the unitive and legal features of marriage are so fundamental in our polity.
 
 Questions

1. How is marriage essentialized (i.e. what features of marriage are said to be essential to it in order for it to be called a marriage) in order to maintain the ban on interracial marriage? How is marriage essentialized to maintain the ban on same-sex marriage?
2. What characteristics does the United States Supreme Court ascribe to marriage in Zablocki and Turner? What impact does the USSC's characterization of marriage have on the question of same-sex marriage?
3. Contrast the language judges use in upholding bans on same-sex marriage to the language used in upholding bans on interracial marriage. Are there similarities? differences?
4. How are constructions of race and gender (through law and marriage) both similar and different?
5. When the USSC holds that the ban on interracial marriage is really a measure to "maintain White Supremacy" what "ideology of race" (Pascoe) are they adopting?
6. What ideology of gender does the current ban on same-sex marriage enforce or promote?
7. Try to form an analogy between Lopez' arguments about Whiteness and a corresponding argument about Maleness. Can you do so? In what contexts does the analogy 'work'? In which contexts does it not work?
8. In what ways does The Law deal with gender differences differently than it deals with racial differences? Think of some explanations for the differences. Identify some similarities.
9. What do you feel about the strength of Cruz's argument about marriage being an expressive first amendment resource which should not be restricted to mixed-sex couples?
10. Apply the Wideman question to Cruz's article and argument. "What's left out?"