Queer Loving

In the past decade, popular and juridical debates about lesbian and gay civil rights in the United States have been driven primarily by a liberal discourse of inclusion, framed by the assumption that lesbians and gay men constitute one of the last groups of excluded "minorities" to be denied full citizenship under the law. Such a view tends to rely on an optimistic reading of the history of civil rights in the twentieth-century United States, a reading that moves gradually from discrimination against minority groups toward the fulfillment of an idealized democracy, in which all individuals have equal opportunities to inhabit the roles, rights, and responsibilities of citizens. This narrative of progress also creates and maintains comparisons among different historically excluded groups, such that the rights gained by one group establish a precedent for another group's entitlement to the same rights.¹ Although many critics have argued that identity categories are intersecting, not parallel, categories of analysis, our knowledge still tends to be organized through analogies naturalized in the context of identity politics, including the notion that sexual identity is in most ways, or at least in the most salient ways, like race.²

One version of this analogy, sometimes referred to as the "miscegenation analogy," has become increasingly visible in recent public debates about same-sex marriage. In a December 14, 2003, opinion piece for the New York Times, for instance, David E. Rosenbaum states that "as a political, legal and social issue, same-sex marriage seems to be now where interracial marriage was about 50 years ago."³ Likewise, Gail Mathabane asserts in USA Today that "interracial couples were [once] in the same boat that same-sex couples are in today. They were vilified, persecuted and forbidden to marry. Interracial marriage was considered a felony punishable by five years in a state penitentiary." Naturalizing a progressive teleology of rights, Mathabane continues, "Like interracial marriages, same-sex marriages are bound to become legal sooner or later, especially since the U.S. Supreme Court struck down state same-sex sodomy laws [in Lawrence v. Texas (2003)]."⁴

In legal argumentation the analogy between same-sex and interracial couples has played a significant role for as long as the constitutional right to same-sex marriage has been argued before the courts.⁵ From Baker v. Nelson (1971), the first case in which same-sex marriage was presented (unsuccessfully) to a U.S. state court, to more recent challenges to state marriage regulations, advocates have argued that the strongest precedent for a constitutional right to same-sex marriage can be found in earlier decisions on interracial marriage.⁶ The two cases most consistently invoked are Loving v. Virginia (1967), the landmark U.S. Supreme Court decision that unanimously struck down state laws prohibiting interracial marriage, and, to a lesser extent, Perez v. Sharp (1948), in which the California Supreme Court became the first state court to rule that antimiscegenation statutes violated the equal protection clause of the Fourteenth Amendment.⁷

The miscegenation analogy seems to have widespread appeal, but whatever its rhetorical power, it has obscured the complicated ways in which race and sexual orientation have been intertwined in U.S. law. Too often the history of interracial heterosexuality in the United States is narrated as if it had nothing to do with the history of homosexuality—except as a precedent.⁸ In fact, the current use of the miscegenation analogy enacts a kind of amnesia about how U.S. legal discourse historically has produced narratives of homosexuality in relation to race. This amnesia results in part from the methods by which precedent is produced by lawyers and judges, who, as active interpreters of the law, often creatively and oppositionally isolate fragments of past decisions to support their present cases. While precedent is usually understood, at its best, as a process of creative remembering, it is also a powerful form of forgetting. Establishing precedent involves extracting a legal principle from its historical contexts and recontextualizing it, shorn of the particularizing details of any single case, in the present. As a method of judicial reasoning, the production of precedent is often an...