In Praise of Loving: Reflections on the 'Loving Analogy' for Same-Sex Marriage

36 Pages Posted: 17 Aug 2008

See all articles by Lincoln C. Oliphant

Lincoln C. Oliphant

Catholic University of America (CUA)

Lynn D. Wardle

Brigham Young University - J. Reuben Clark Law School

Date Written: April 2008

Abstract

The article reviews the extensive effort (and little judicial success) of advocates of same-sex marriage to invoke the "Loving analogy" to support their claims for same-sex marriage. The precedents are examined, noting that U.S. Supreme Court explicitly considered and rejected the "Loving" analogy just five years after it decided Loving v. Virginia. There is extensive literature from African-American leaders, scholars, and commentators who reject on eight different grounds the "Loving analogy" to same-sex marriage. African-American voters have similarly rejected the analogy as they have voted against same-sex marriage overwhelmingly in proportions exceeding that of other groups of Americans generally. Our article argues that the "Loving" analogy for same-sex marriage misapplies Loving and infringes upon the fundamental principles of Loving v. Virginia. Three appendices and five maps are included to illustrate our assertions. We conclude that the sooner the Loving analogy for same-sex marriage is buried, "the better it will be for the legacy of Loving."

Keywords: marriage, family, same-sex, gay, lesbian, constitutional law, civil rights

Suggested Citation

Oliphant, Lincoln C. and Wardle, Lynn D., In Praise of Loving: Reflections on the 'Loving Analogy' for Same-Sex Marriage (April 2008). Howard Law Journal, Vol. 51, No. 1, pp. 117-186, 2007, Available at SSRN: https://ssrn.com/abstract=1226303

Lincoln C. Oliphant

Catholic University of America (CUA) ( email )

116 McMahon Hall
Washington, DC 20064
United States

Lynn D. Wardle (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

518 JRCB
Provo, UT 84602
United States
801-422-2617 (Phone)
801-422-0391 (Fax)

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