Loving Across the Miles: Binational Same-Sex Marriages and the Supreme Court
LOVING IN A POST-RACIAL WORLD: RETHINKING RACE, SEX AND MARRIAGE, K. Maillard, R. Cuison Villazor, eds., Cambridge Univ. Press, 2010
25 Pages Posted: 30 Oct 2009 Last revised: 10 Nov 2009
Date Written: October 29, 2009
In this book chapter, I explore the connections between the obstacles to both marriage and freedom of movement experienced by binational same-sex couples because of both anti same-sex marriage and immigration laws, and those encountered by Richard and Mildred Loving and other interracial couples as a result of anti-miscegenation laws. As I explain more fully below, the Lovings’ story is a story of migration. It’s a border-crossing story that parallels and sheds light on the struggles of binational same-sex partners today who face barriers to marriage and the attendant benefits and privileges of such marriages. Specifically, I argue that the hardships faced by gay and lesbian couples who want to legitimize their relationships through state-recognized marriage mirror the struggles of interracial couples during the heyday of the Civil Rights Movement. Both race and sexual orientation function as barriers to freedom to marry and the law uses these traits to limit free movement. Ultimately, it is this freedom of movement – this migration or immigration – that’s the focus of this chapter, with particular attention paid to the Supreme Court’s role in assessing this freedom. Loving reveals the extent to which the Court affirmed the couple’s desire for free physical, legal, and cultural movement – to break barriers erected by the law that restricted their physical movement (they could not live in Virginia, their home state), their legal movement (they could not legally wed within Virginia), and their cultural movement (they could not wed outside of their respective races). Forty years later, Richard Adams and Tony Sullivan, as well as Austin Naughton and his unnamed Spanish partner, face similar physical, legal, and cultural restrictions on their movement because of their sexual orientation. Describing the current difficulties posed by his relationship with Richard Adams, Tony Sullivan aptly put it: “We would have been able to travel. …” I will discuss these three aspects of movement – the physical, legal, and cultural –barriers to movement that parallel the hardships the Lovings endured under Virginia’s antimiscegenation statute. I will round out this migration trilogy by exploring the ways in which the Court has addressed the cultural migration that has occurred within sexual orientation discourse. While progress had been made on the issue of gay rights as evidenced by the Court’s rulings in Romer v. Evans and Lawrence v. Texas, their most recent decision, Rumsfeld v. Forum for Academic and Institutional Rights (“FAIR”), should give gay rights advocates pause, suggesting that race and sexual orientation may be doomed to follow separate, and hardly ever analogous, paths. I conclude the chapter by offering some thoughts on pending Congressional legislation designed to unite same-sex partners and their families, situating the discussion within the context of the Obama administration’s professed commitment to individual rights and the recent same-sex marriage gains among the states.
Keywords: Loving v. Virginia, same-sex marriage, immigration
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