Home / General / Comparisons between Loving v. Virginia and the gay marriage cases aren’t apt

Comparisons between Loving v. Virginia and the gay marriage cases aren’t apt

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I discuss the differences, which are more significant than the similarities.

Remarkably, a majority of Americans, and a huge majority of white Americans, continued to say they were opposed interracial marriage until the late 1990s, 30 years after Loving v. Virginia. (I suspect the number of people willing to say they’re opposed is actually a good deal smaller than the number who are actually opposed). The situation with gay marriage is quite different:

First, contrary to claims of cultural conservatives, the Supreme Court’s ruling today can’t be characterized as the imposition of elite political preferences on the nation as a whole. The solid majority of the nation as a whole supports gay marriage, and it seems likely that within a very few years, opposition to the institution will be as marginal a position as (at least open) opposition to interracial marriage is today.

Second, the history of opposition to interracial marriage indicates that a Supreme Court decision by itself will often do little or nothing to sway public opinion in regard to this sort of issue. In 1967, the Supreme Court of the day threw down a legal gauntlet to one of the most powerful – and, as it would develop – intractable symbols of institutionalized racism in America. That decision seems to have had almost no effect on public opinion, which changed very slowly, and largely if not wholly for other reasons.

By contrast, today the Supreme Court is merely putting its stamp of approval on a political movement that was already winning the battle in the court of public opinion. And that stamp will probably have little effect on the cultural processes that determine how quickly gay marriage receives something closer to universal public acceptance

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  • Gregor Sansa

    Yes, gay people are winning their human rights, and most Americans support them. Which is awesome. And when not a single Republican candidate can support this decision, they are not just on the wrong side of history, they’re on the losing side.

    (Jeb Bush tried to split the baby, deploring the decision but not gay people; all the rest went str8 h8.)

  • Scott Lemieux

    In other words, the set of people who favor gay marriage but don’t think the Supreme Court should impose the policy on states, and the set of people who oppose gay marriage but do think there’s a constitutional right to it, are both empty

    Yes.

  • John F

    I think with interracial marriage most people didn’t change their minds, those opposed simply grew old and died.

    With gay marriage I think we’ve seen a great many individuals change their minds – why would that be so?

    I think that people who were opposed to interracial marriage – did so because of the way they looked at race relations in general, blacks and whites are different races, one superior, one inferior, the races were meant to be separate, black-white couplings were very threatening to this worldview- the offspring who resulted from such couplings were very threatening to this worldview, interracial marriage was a thing they gave a great deal of thought to, “understood” and feared and hated it.

    Gay marriage? Most people gave no thought to it, it was a concept that honestly didn’t occur to many- opposition may have been broad but it was very thin- those who are adamantly and passionately opposed are generally driven by religious belief- but for most people when they finally give gay marriage some thought, the thought is, “meh, has no effect on me or my life, but whatever rocks your boat, it’s a private matter”

    The opponents are literally over the top in a fire and brimstone type of way, and if that’s what your opposition comes down, to, “God is gonna punish all of us for allowing this perversion” – that type of argument may appeal to the true believers, but it doesn’t gain any converts, and actively repells secularists

    • IM

      I think with interracial marriage most people didn’t change their minds, those opposed simply grew old and died.

      Max Planck claimed that this is the only way sience progresses.

    • CD

      To put this a bit differently, racism is more widespread and deep-rooted than homophobia.

      Heterosexuality, as the historians remind us, is a relatively recent invention and not deeply sedimented, however loud the minority of reactionaries who are attached to it. (And even for that minority, I think it’s as much a symbol of ebbing religious hegemony as something they care about in itself) Whereas racists are directly invested in their own racial privilege, and racism regenerates whenever mediocre white people feel that privilege ebbing. No fragility there, no arbitrary symbols.

      • John F

        Heterosexuality, as the historians remind us, is a relatively recent invention

        No it isn’t, it’s how our species has reproduced for many many millenia (And Homosexuality and bi-sexuality are not recent inventions either, they’re likely just as old as heterosexuality)

        It is the one man one woman FORMAL marriage (with tax and inheritance benefits) that is a recent man made invention.

        • LeeEsq

          I suppose this going to result in quibbling but some form of formal monogamy existed since Antiquity and that is not recent even though our species is a lot older.

          • The Dark Avenger

            Indeed, the Tiwi of Australia have a marriage code that makes us look like hedonists by comparison:

            The Tiwi believe that a female can become pregnant at any time no matter the age. This, along with their belief that no child should be born fatherless, creates a system in which all females have to be married at all times. Newborn girls are engaged to men of at least 60 years of age, although they do not start to live with their husbands until the age of 14. In addition, women whose husbands have died are remarried to someone else, no matter their own age. All marriage contracts are arranged by the “father” of the female (whether it is the first marriage or a remarriage). When a man dies, the woman’s new partner takes on the role of father for all of the woman’s children from all previous marriages.

            A powerful and elderly man can have as many as 100 wives at the time of his death, yet many of these could still be under the age of 14, meaning they do not live with him.[1]

            Anthropologist Jane C. Goodale conducted life history interviews with Tiwi women, publishing Tiwi Wives in 1971 in which she examined how social change was reflected in ritual.

        • CD

          As a concept, as a category meaningful to people.

        • CD

          See Jonathan Ned Katz’s book for the most succinct presentation of the argument. Chanucey’s _Gay New York_ is useful too.

        • matt w

          Our species has reproduced for millenia by men having sex with women. This isn’t the same thing as heterosexuality.

      • Shakezula

        To put this a bit differently, racism is more widespread and deep-rooted than homophobia.

        In places where there are races to be racist against, anyway.

        • CD

          Maybe I should have said that I’m addressing the contemporary USA.

    • Opponents of mixed-raced marriages perceive them as breaking down social boundaries that they value. They create familial bonds with outsiders, and then produce children who must either be ostracized or serve to permanently weaken the distinction between the preferred group and the outsider. This is a mechanism that explains not only white opposition to black/white marriages but black opposition, orthodox religionists’ objection to marrying outside the faith, opposition to marrying outside one’s social class or educational background, etc.

      When your son marries another man, you don’t suddenly get a whole family of gay in-laws, basically.

      Racism comes into it as well, of course.

      • Hogan

        Great comment. Thanks.

      • Manny Kant

        You don’t necessarily get a whole family of gay in-laws.

  • Shakezula

    Do you mean the actual cases, public attitudes or the aftermath?

  • Manju

    Yes, “a majority of Americans…opposed interracial marriage until the late 1990s” (though a majority of Af-Ams approved of them at least as far back as 1968). See here.

    But a majority of Americans opposed laws against interracial marriage as far back as at least 1972. See here.

    Paul may be right, but we have to compare equivalent metrics. Do the SSM numbers reflect opposition/support to SSM or to laws against SSM?

    • Manju

      Recent polls indicate that nearly three in five Americans favor legalizing same-sex marriage.

      Ok, so it seems Paul is comparing favoring legalizing same-sex marriage to simply favoring interracial marriage.

      But if we use the more relevant metirc, we have a majority opposing laws against interracial marriage (63-37) by 1972.

      I can probably dig up some 1967 numbers.

      • Manju

        I can probably dig up some 1967 numbers.

        Ok, from “Racial attitudes in America: trends and interpretations ” by Howard Schuman, Charlotte Steeh, Lawrence Bobo.

        Whites only:

        Favoring laws against interracial marriage:

        1964: 60-40%
        1968: 56-44
        1970: 50-50

        Page 106.

  • randy khan

    All that may be true, but it appears that Justices Scalia and Thomas (I’d say this was ironic, but actually it’s not at this point in his career), probably Justice Alito and maybe even the Chief Justice think they were very similar, and that Loving v. Virginia was wrongly decided. (There’s really no way to read the Scalia and Thomas dissents without thinking they would have come to the same conclusion in Loving.)

    • Matt McIrvin

      One of the dissents, I think it was Thomas’s, pointed out that Loving was different from Obergefell in that it was not about criminal charges; nobody was going to arrest Obergefell and put him in jail.

      I think he was implying that he’d have regarded the simple refusal to license interracial marriages, without arresting people for miscegenation, as perhaps wrong but constitutional.

      • Matt McIrvin

        However, he also dissented in Lawrence v. Texas arguing that the Texas anti-sodomy law was bad but constitutional, so maybe that’s a distinction without a difference.

  • John F

    All that may be true, but it appears that Justices Scalia and Thomas …think they were very similar, and that Loving v. Virginia was wrongly decided.

    Thomas was what, 18 when Loving was decided? Which is amazing… I suspect that Thomas is the type of guy who really only gets these things if they affect him personally– Loving was long decided when he got married so…. if he can’t get it, the mind boggles.

    Thomas is just really weird on so many levels, and I suspect his honest opinion is that while the laws Loving struck down were unfair and unjust, they were not unconstitutional. He’s the type of guy who wouldn’t have fought the law when he got married he and his wife would have moved to get married in a state that didn’t ban miscegenation. Another couple that didn’t have the inclination or economic means to do that? Too bad, tough titty.

  • dilan

    As late as when I went to college, and on the liberal west coast, it was certainly considered notable, at the least, when a white student had a black boyfriend. My impression is that the younger generations don’t care one bit.

    One of the things about social change is that once it happens, it begins to look like things were always this way, when it actually wasn’t so long ago that they weren’t.

  • Joe_JP

    solid majority of the nation as a whole supports gay marriage

    Sixty percent. 48% in 2011. I doubt if a slew of court opinions that in effect made in legal didn’t affect these numbers. The numbers are smaller, I gather, in certain parts of the country.

    That decision seems to have had almost no effect on public opinion, which changed very slowly, and largely if not wholly for other reasons.

    I gather this is so or enough so to grant.

    The case is usually cited (and Mildred Loving did this herself in 2007) as a matter of principle — there is a right to marry and illegitimate classifications are unconstitutional/wrong. Be it race or sex/sexual orientation.

    Also, when the references began, the change in public opinion was much more in flux. Like in the early 2000s. Anyway, again, the comparison is quite often cited for principle. That remains “apt.”

  • King Goat

    Er, there were far more states with laws forbidding same sex marriage today than there were states with anti-miscegenation laws in 67.

    • Manju

      According to CNN, there are 13 states with laws forbidding same sex marriage today.

      According to wiki (sorry, don’t have respectable source handy) there were 16 states with anti-miscegenation laws in 67.

      • King Goat

        The CNN list are just the states whose same sex marriage bans are still operative. 31 states, twice the 16 that had anti-miscegenation laws in 67, passed same sex marriage bans, it’s just that various courts have struck down many (to the chagrin of many of those states).

      • The Dark Avenger

        California and Nevada also had such laws, but CA struck down theirs in 1948, Nevada did so less than a decade later. My mother couldn’t get married to Dad in Reno in 1956 because she admitted to her Chinese ancestry, a mistake she didn’t repeat when they went on to Carson City and got married there.

  • Sly

    Second, the history of opposition to interracial marriage indicates that a Supreme Court decision by itself will often do little or nothing to sway public opinion in regard to this sort of issue. In 1967, the Supreme Court of the day threw down a legal gauntlet to one of the most powerful – and, as it would develop – intractable symbols of institutionalized racism in America. That decision seems to have had almost no effect on public opinion, which changed very slowly, and largely if not wholly for other reasons.

    A visual representation of this trend is instructive – Loving happened in 1967, and there’s nothing in the polling data to show it had any impact whatsoever on what was already a steady climb toward national approval.

    Even if you split respondents by race, the trend is stable; while the consistently (much) higher approval of interracial marriage among African-Americans is notable, and the correspondingly low support among white Americans, what is equally notable is that both lines follow identical trajectories.

  • DAS

    While Campos certainly is correct about conservatives being wrong about the SCOTUS majority trying to impose “elite opinion”* on everyday ‘Murkins, I am not sure that this means the cases themselves are formally all that different. Indeed, I suspect that part of the speed in which many folks have accepted gay marriage is due to a sort of collective guilt about their (parents’) lack of acceptance of interracial marriage and the clear similarity of the issues: “our society was too slow to accept interracial marriage and the arguments for/against gay marriage are pretty much the same — so let’s not be on the wrong side this time and accept gay marriage”.

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