University of California Berkeley School of Law
This Essay argues in favor of legally recognizing same-sex marriages by exploring the similarities in passing between members of same-sex marriages/relationships and interracial marriages/relationships. Specifically, this Essay unpacks the claim that the ability of gays and lesbians to pass as heterosexual distinguishes the ban on same-sex marriages from former bans on interracial marriages. Part I of this Essay first describes policy-based critiques of a Loving-based argument for legalizing same-sex marriage, or as one scholar has coined, of playing the Loving card by analogizing the racism that motivated anti-miscegenation statues that the Supreme Court struck down in 1967 to the anti-gay animosity that motivates contemporary opposition to same-sex marriages. In particular, it focuses on critiques by black religious leaders against analogizing the prior ban on interracial marriages to the current prohibition of same-sex marriages because of the ability of gays and lesbians to pass as heterosexual. Part II of this Essay briefly describes social constructionist theories of identity and explores the various ways in which Blacks and gays, lesbians, and bisexuals may pass, both in a physical and a social sense, to avoid forms of discrimination. Part III then clarifies what Loving's got to do with it by exploring the congruencies between passing in the context of interracial and same-sex relationships and argues that social constructions of race and sex have enabled both types of passing. Finally, this Essay defends the legal recognition of same-sex marriages on the basis of these parallels.
California Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/313