Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality

Abstract

There are numerous parallels between this Term’s same-sex marriage case of Obergefell v. Hodges and 1967’s Loving v. Virginia. In both instances, the Court’s taking up of marriage has followed decades of organizing and social movement evolution vis-à-vis a broader underlying civil rights project. In both instances, marriage has had special symbolic significance as an area of marked, sometimes visceral, opposition among the social movement’s opponents.

But this Essay contends that — although the parallels between Obergefell and Loving are substantial — there is at least one key distinction between the two: their position vis-à-vis the institutionalization of a formal equality regime. Thus, while Loving arguably marked the end-point of the institutionalization of a regime of formal equality vis-à-vis race, Obergefell stands much closer to its beginning. Indeed, despite the accumulation of impressive legal and social gains, the L/G/B rights movement arguably remains far closer to Brown (and its unsettled posture vis-à-vis formal equality) than it is to Loving.

This Essay argues that this lack of explicit formal equality guarantees matters. Most obviously, there are important arenas of L/G/B equality where L/G/B plaintiffs continue — due to the lack of a formal equality backdrop — to regularly lose their claims. More fundamentally, the absence of the type of moral messaging and coercive capacity that an explicit anti-discrimination regime provides poses substantial questions about whether the contemporary L/G/B legal regime can effectuate the important deterrence and culture change objectives of anti-discrimination law.

Keywords: Equal Protection, Same-sex Marriage, Formal Equality, LGBT Rights