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Conference Proceeding

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Boston University School of Law




I am pleased to offer the opening commentary in this BU Law Review Annex symposium on Professor Katherine Franke’s provocative new book, Wedlocked: The Perils of Marriage Equality. As previewed by the book’s additional subtitle, “How African Americans and Gays Mistakenly Thought the Right to Marry Would Set Them Free,” Franke aims to provide “cautionary tales” gleaned, or lessons learned, from juxtaposing post-Civil War regulation of the marriages of African Americans freed from slavery with today’s movement for marriage equality for gay men and lesbians.3 Long a skeptic about the gay community’s focus on the goal of marriage—its (in Franke’s memorable phrase) “Longing for Loving [v. Virginia (1967)],”4 Franke aims to buttress the case for caution with archival research on post-Civil War meanings of marriage for newly freed people. As my two opening quotations from Obergefell v. Hodges and Wedlocked suggest, while Justice Kennedy views same-sex couples’ gaining access to the right to marry as fulfilling the Constitution’s “promise of liberty” and affording freedom, Franke views such access more through the lens of subjecting oneself to a new form of state regulation at the expense of freedom. Indeed, though they are ideologically poles apart, Franke seems more aligned, in this regard, with dissenting Justice Scalia, who mockingly answered Justice Kennedy’s argument that, “through [marriage’s] enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,” with “Really?” Scalia countered that “Freedom of Intimacy is abridged rather than expanded by marriage.”

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