Writing for the majority in the Supreme Court’s 5-4 ruling that nationalized the right to marry for same-sex couples, Justice Anthony Kennedy cited another landmark case: Loving v. Virginia (1967), which struck down bans on interracial marriage.
Here's one example:
Forty-seven years ago today, the Supreme Court handed down its opinion in Loving v. Virginia, striking down all interracial marriage bans as a violation of the 14th Amendment. The famous case has since served as the cornerstone of the legal battle for marriage equality: Gay marriage proponents seized upon Loving’s due process and equal protection rationales to make their case at the court.Another example:
The Fourteenth Amendment, ratified on the heels of the Union victory, provided the basis 150 years later for a landmark ruling for same-sex couples citing its Due Process and Equal Protection clauses. Try as we might to separate our struggles, our history throws us together, as illustrated by Kennedy's citations of the 1967 decision inLoving v. Virginia ending state bans on interracial marriage.And there are even articles in law school review journals that make the analogy:
This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an individual’s freedom to marry the person of his or her choice, and (2) that interracial marriage bans are conceptually distinguishable from laws forbidding same-sex marriages and therefore do not violate the Constitution. The Essay concludes that Loving is a useful and authoritative analogy supporting the claims of plaintiffs who contend, among other things, that states may not constitutionally deny same-sex couples the right to marry based solely on the traditional view that marriage is, and should only be, the legal union of one man and one woman.As is usually the case in analogies proposed by the Gramscian left, the Supreme Court decisions in Loving v Virginia and Obergefell v Hodges are not analogous at all - in fact, they are entirely dissimilar and actually almost exactly opposite.
Let's review the particulars.
In Loving v Virginia, the Supreme Court struck down a particular statute, a specific Virginia state law, the "Racial Integrity Act of 1924." This law was passed as part of the progressive eugenics movement that swept the country in the post-Wilsonian twenties.
A specific statute making it illegal for men and women of different races to marry was passed in Virginia, because there is nothing - not one whit - against inter-racial marriage in the Common Law of Great Britain and the United States. There is nothing in the Canon Law of the Holy Roman Catholic Church or in the Church of England to prevent inter-racial marriage. Therefore, in order to make inter-racial marriage illegal, a specific statute was passed by the Virginia legislature and signed by the Commonwealth's governor.
The "Racial Integrity Act of 1924" was not the first law in America forbidding inter-racial marriage. In 1664, A law was promulgated in Maryland to prevent marriages between free persons and slaves, and laws against marriages between whites and blacks were first passed in Virginia and Maryland in 1691 and 1692, respectively. Initially, these laws were intended to avoid the complications of determining the free or slave status of the children born in a marriage of a free person and a slave; the racial prohibitions came later.
The point I'm making here is that inter-racial marriage was always recognized as a possibility, that inter-racial marriage is perfectly proper and legal under the Common Law, and that specific statutes had to be passed by state legislatures in order to make inter-racial marriage illegal.
And even those laws did not deny the validity of a marriage properly contracted or celebrated between a man and a woman of different racial backgrounds. Such marriages were not annulled by the laws; the couple were simply banished from the Colony.
(Incidentally, in Louisiana, marriages between Catholics and non-Catholics were forbidden, but inter-racial marriages were always recognized.)
Therefore, in striking down the "Racial Integrity Act of 1924," and similar laws in any other state that had them, the Supreme Court did not create a new social institution, did not fundamentally alter the character of any social institution, and returned the states to conformity with the Common Law of England and the United States.
The decision the Court reached in Obergefell is quite different.
The Common Law of England and the United States, the laws of every one of the States, and the traditional Canon Law of every Christian church have always recognized that marriage is the union of one man and one woman. There are restrictions concerning the possible pairings and partners who may marry: a person can't marry one's parent, one's sibling, or one's child, for example.
There has never been a restriction in the Common Law prohibiting a homosexually oriented person from marrying - so long as he or she married a partner with whom marriage was possible.
But to the Common Law, the idea of a marriage between partners of the same sex was an absurd impossibility.
Perhaps the most important reason for that, is that to be recognized by the Common Law and the Canon Law of the Church, a marriage has to be consummated. Non-consummation is grounds for the annulment of a marriage, after all.
What does it mean to consummate a marriage? It means that the "spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring."
Therefore, it is impossible for a same-sex relationship to be consummated.
Recognizing that impossibility, by the way, when the British Parliament changed the marriage laws of the United Kingdom to accommodate same-sex partnerships, they changed the grounds for annulment; non-consummation is grounds for annulment of a marriage between a man and a woman, but not for the annulment, in Britain, of a same-sex marriage. In addition, adultery in England consists only in heterosexual sexual intercourse with a partner other than one's spouse.
Therefore, in order to create a new social institution, namely same-sex marriage, the Supreme Court did not overturn a specific state statute that banned same-sex marriages permitted under the Common Law from time immemorial. The Court created a new social institution ex nihilo. The Court essentially decided that 1,000 years of English and American Common Law, and 2,000 years of Christian Canon Law, could be ignored, and that the meaning of the words "marriage," "consummation," and so forth could be discarded.
If the Obergefell decision is followed up by further Gramscian challenges to the fundamental social institutions of civil society - as it surely will be - then marriage will have ceased to exist in the United States altogether. There will no longer be a social institution, called "marriage," that means anything more than anyone wants it mean at any given point in time.
Loving and Obergefell are not examples of the same principles of jurisprudence, but are almost exactly opposite. In Loving, the Court overturned a specific statute that was at variance with the Common Law (and I might add, Natural Law), and showed from where in the Constitution its authority to do so derived. In Obergefell, the Court revolted against the Common Law (and Natural Law) in order to create an entirely novel social institution that was entirely undreamed-of in the Constitution.