Amicus Curiae Brief — Obergefell v. Hodges

Nos. 14-556, 14-562, 14-571, 14-072

in Une

Supreme Court of the Gnited States

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL.,

PETITIONERS,

Vv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT

OF HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

Vv.

WILLIAM EDWARD “BILL” HASLAM,

GOVERNOR OF TENNESSEE, ET AL., RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,

RESPONDENTS.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

LTTE

AMICUS CURIAE BRIEF OF HOWARD UNIVERSITY

SCHOOL OF LAW CIVIL RIGHTS CLINIC

IN SUPPORT OF PETITIONERS

ADERSON B. FRANCOIS, HOWARD UNIVERSITY SCHOOL OF LAW

AND

BENJAMIN G. SHATZ, Counsel of Record

MANATT, PHELPS & PHILLIPS, LLP

11355 West Olympic Blvd., Los Angeles, CA 90064

(310) 312-4000 Fax: (310) 312-4224 BShatz@Manatt.com

Counsel for Amicus Curiae

Howard University School of Law Civil Rights Clinic

TABLE OF CONTENTS

STATEMENT OF INTEREST

SUMMARY OF ARGUMENT

I. MARRIAGE IS A SYMBOL OF CIVIL

FREEDOM, A MARKER OF SOCIAL

EQUALITY, AND A BADGE OF FULL

GEE cdcnasdnsvccssocnsntconscsensesoseccecessocosees

II. LIKE MARRIAGE FOR SAME-SEX

COUPLES TODAY, INTERRACIAL,

MARRIAGE WAS ONCE WIDELY

CONSIDERED A THREAT TO SOCIAL

ORDER AND THE INSTITUTIONS OF

MARRIAGE AND FAMILY ................02000e0000008

III. LIKE SAME-SEX COUPLES TODAY,

INTERRACIAL COUPLES WERE ONCE

CONDEMIED AS UNNATURAL AND

EERSTE RAISE RS a

A. Interracial Relationships Were Once

Framed as Purely Sexual, Just as

Same-Sex Relationships Are Framed

TTITTET ‘ccsciesiiniidehinsiditebeenditipeariiaaiidideicibaaiahiddihiniinatls

Settee eee ewer eee ee eeeee

eee eee eee ee eee eee eee eee

TABLE OF CONTENTS

(continued)

B. Pseudoscientific Arguments Were

Used to Support Anti-Miscegenation

Laws and Are Currently Being Used

to Deny Same-Sex Couples the Right

C. Judeo-Christian Theological

Interpretations Often Have Been

Invoked to Challenge Marriage for

Both Interracial and Same-Sex

Couples

IV. LIKE SAME-SEX PARENTING TODAY,

INTERRACIAL PARENTING WAS ONCE

CONSIDERED DAMAGING TO THE

DEVELOPMENT AND PSYCHOLOGICAL

HEALTH OF CHILDREN

A. Interracial Marriage Was Once

Considered Harmful to Child

Development, Just as Same-Sex

Marriage Is Considered to Be Today ...

B. Children of Interracial Marriages

Were Once Thought to Be in Danger of

Psychological Trauma, Just as

See eee eee eee ee eee eee Cee eee eee ee eee eee ee eee Oe

27

Children of Same-Sex Couples Today... 29

CONCLUSION

ee ee Bee eed

ili

TABLE OF AUTHORITIES

CASES

Baehr v. Miike,

No. 91-1394, 1996 WL 694235

(Haw. Cir. Ct. Dec. 3, 1996),

aff'd, 950 P. 2d 1234 (Haw. 1997) ........ 31, 32

Bottoms v. Bottoms,

457 S.E. 2d 102 (Va. 1995) ......................... 27

Davis v. Walton,

276 P. 2d 921 (Utah 1929)..............00.0.0...... 20

Florida Dept. of Children and

Families v. Adoption of X.X.G.,

45 So. 3d 79 (Fla. Ct. App. 2010)................ 35

Green v. State,

I a ae 4,7

Hernandez v. Robles,

855 N.E. 2d 1 (N.Y. 2006)........................... 29

J.L.P. v. D.J.P.,

643 S.W. 2d 865 (Mo. Ct. App. 1982)......... 33

Lofton v. Sec’y of the Dep’t of

Children & Family Serv.’s.,

358 F. 3d 804 (CA11 2004) ............0.0.0000000.. 34

Loving v. Virginia,

RT Oe GIR esonssncesuvcdsouseuectuseseniences 8, 23

N.K.M. v. L.E.M.,

606 S.W. 2d 179 (Mo. Ct. App. 1980)......... 34

iv

TABLE OF AUTHORITIES

(continued)

People v. Hall,

4 Cal. 399 (1854) ...eccccccccccsececescesceceeceeteeeeeee 16

Perez v. Sharp,

198 P. 2d 17 (Cal. 1948) .......cccccccecceceseeceeeees 17

Roe v. Roe,

324 S.E. 2d 691 (Va. 1985) ......................... 33

S.v. S.,

608 S.W. 2d 64 (Ky. Ct. App. 1980)............ 33

Scott v. State,

Bs Ge CED snwevsicinnsicinstictapeniammatannmenaaial 28

State v. Gibson,

ee Es Ge CI OP dntiinccictitcicaetsctnceccemmecann 4, 23

Wolfe v. Georgia Ry. & Elec. Co.,

58 S.E. 899 (Ga. Ct. App. 1907).................. 23

OTHER AUTHORITIES

American Psychological Association,

Sexual Orientation, Parents &

CRE GE BI cccnvscovctncncscsmseensteniomaiin 35

Amicus Brief of the American Center for

Law & Justice Northeast,

In re Marriage Cases, A110651

te eee eee 12

TABLE OF AUTHORITIES

(continued)

Amicus Brief of Catholics for the

Common Good, Hollingsworth v.

Perry, 133 S. Ct. 786 (2012)..................0.022. 25

Amicus Brief of Coalition of African

American Pastors, Hollingsworth v.

Perry, 133 S. Ct. 786 (2012) ....-.cccccccecceeeeeee: 14

Ariel [Buckner H. Payne],

The Negro: What Is His

Ethnological Status? (1867).................0...4+. 22

Ball, Carlos A. & Janice Farrell

Pea, Warring with Wardle:

Morality, Social Science, and

Gay and Lesbian Parenting,

RS EE 13

Ball, Carlos A., The Blurring of the Lines:

Children and Bans on Interracial Unions

and Same-Sex Marriages,

76 Fordham L. Rev. 2733 (2008)................ 26

Becker, Many are Chilled, but Few are

Frozen: How Transformative Learning

in Popular Culture, Christianity, and

Science Will Lead to the Eventual Demise

of Legally Sanctioned Discrimination

Against Sexual Minorities in the United

States, 14 Am. U. J. Gender Soc.

POLY & Ls. 177 (BOOG)...cccecccccccccsccsccccceces 21, 25

vi

TABLE OF AUTHORITIES

(continued)

Bentley, Nancy, White Slaves:

The Mulatto Hero in Antebellum

Fiction Am. Literature (1993)..................... 31

Bonauto, Mary, Ending Marriage

Discrimination: A Work in Progress,

40 Suffolk U. L. Rev. 813 (2007) ................ 35

Bost, Suzanne, Fluidity Without

Postmodernism: Michelle Cliff and

the “Tragic Mulatta” Tradition,

32 Afr. Am. Rev. 673 (1998) ..........c-.c0000---- 30

Brown, Herbert, History Doesn't Repeat

Itself, but it Does Rayme—Same-Sex

Marriage: Is the African-American

Community the Oppressor This Time?

34 S.U. L. Rev. 169 (2007) .......................... 12

Cobb, Thomas, An Inquiry into the Law of

Negro Slavery in the United States of

America (1858) (Negro Univs. Press 1968)...4

Congregation for the Doctrine of the

Faith, Letter to the Bishops of the

Catholic Church on the Pastoral Care

of Homosexual Persons (Oct. 1, 1986)........ 25

Cook, James Graham,

The Segregationists (1962) ...................0000+- 22

vii

TABLE OF AUTHORITIES

(continued)

Davidson, Jeannette R., Theories about

Black-White Interracial Marriage:

A Clinical Perspective,20 J. Multicultural

Counseling & Dev. 150 (1992).................... 18

Dobson, James C., Eleven

Arguments Against Same-Sex

Marriage (Feb. 26, 2014) ....................2.22000. 32

Dworkin, Ronald, Three Questions

for America, N.Y. Rev. of Books,

I I a rte 3

Focus on the Family’s Position

Statement on Same-Sex

“Marriage” and Civil Unions

GE See eee 24

Fredrickson, George M., The Black Image

in the White Mind: The Debate on

Afro-American Character and Destiny,

(Wesleyan Univ. Press 1987)......................... 8

Graff, E.J., What is Marriage For?: The

Strange Social History of Our Most

Intimate Institution (1999) ................0.0.cccceee. 4

Grant, Madison, The Passing of the Great

Race: or, The Racial Basis of European

History (Charles Scribener’s Sons 1916) ... 17

viii

TABLE OF AUTHORITIES

(continued)

Harris, Angela P., Loving Before and

After the Law,

76 Fordham L. Rev. 2821 (2008)................... 4

Harrub, Brad et al, This Is the Way

God Made Me: A Scientific

Examination of Homosexuality

| See 18

Higgins, Chester, Mixed Marriage

Ruling Brings Mixed Reaction in

Dixieland, Jet, June 29, 1967.....................2-. 8

Hohengarten, William M., Note,

Same-Sex Marriage and the

Right of Privacy,

103 Yale L.J. 1495 (1994) ..................ceeseeeeees 3

Jefferson, Thomas, Notes on the State of

Virginia (1787), reprinted in The

Portable Thomas Jefferson

(Merrill D. Peterson ed., 1977)...................--- 5

Joslin, Courtney G., Searching for

Harm: Same-Sex Marriage and the

Well-Being of Children,

46 Harv. C.R.-C.L. L. Rev. 81 (2011) ... 26, 32

Kennedy, Randall, Interracial

Intimacies: Sex, Marriage, Identity,

and Adoption (20038)............cccccccccccsecccoceseees 30

ix

TABLE OF AUTHORITIES

(continued)

Kopytoff, Barbara & A. Leon

Higginbotham, Jr., Racial Purity and

Interracial Sex in the Law of Colonial

and Antebellum Virginia,

gh SS 28

Kurtz, Stanley, The Libertarian Question:

Incest, Homosexuality, and Adultery.

Nat. Rev. Online (Apr. 30, 2003)................... 9

Less Faith in Judicial Credit: Are Federal

and State Defense of Marriage Initiatives

Vulnerable to Judicial Activism ?:

Hearing Before the Subcomm. on the

Constitution, Civil Rights and Prop.

Rights of the S. Comm. on the Judiciary,

Eee 10

Marks, Jonathan, Human Biodiversity:

Genes, Race, and History

(Transaction Publishers 1995) ................... 18

Myrdal, Gunnar, An American Dilemma:

The Negro Problem and Modern

LE I ae 7

Novkov, Julie, Racial Constructions:

The Legal Regulation of Miscegenation

in Alabama, 1890-1934,

20 Law & Hist. Rev. 225 (2002) ................. 16

TABLE OF AUTHORITIES

(continued)

Norwood, Thomas M., Address on the

Negro (Braid & Hutton 1907)..................... 13

Ordover, Nancy, American Eugenics:

Race, Queer Anatomy, and the Science

Of Nationalism (BOOS) ......ccccccccccccccccccccescceee 19

Perrin, Ellen C., Technical Report:

Coparent or Second-Parent Adoption

by Same-Sex Parents,

109 Pediatrics 341 (Feb. 2002)................... 36

Pichot, André, The Pure Society: From

Darwin to Hitler (David Fernbach

trans., Verso 2009) (2001) ....................00005. 15

Pilgrim, David,

The Tragic Mulatto Myth (2000)................ 28

Plecker, W.A., Virginia’s Effort to

Preserve Racial Integrity, in A Decade

of Progress in Eugenics: Scientific

Papers of the Third International

Congress of Eugenics (1934) ................. 16, 17

Porterfield, Ernest, Black-American

Intermarriage in the United States,

5 Marriage & Fam. Rev. 17 (1982)............. 18

TABLE OF AUTHORITIES

(continued)

Preface to A Decade of Progress in

Eugenics: Scientific Papers of the

Third International Congress of

Eugenics (1934) ......... pachasasstiiceninibciadasdbdeiaeasiaiiaiiaiteels 15

Ramos, Manuel, McCollum: No appeal to

keep Fla. gay adoption ban,

Orlando Sentinel, 10/22/2010..................... 35

Robinson, Reginald Leamon, Race, Myth

and Narrative in the Social

Construction of the Black Self,

I BBP CE iccccntniccncnbindicticdedtaseess 13

Romano, Renee, Race Mixing: Black-

White Marriage in Postwar America

aioe haa 6, 8, 27, 29

Rosenthal, Debra J., The White

Blackbird: Miscegenation, Genre, and

the Tragic Mulatta in Howells,

Harper, and the “Babes of Romance,”

56 Nineteenth-Century Lit. 495 (2002) ..... 31

Ross, Josephine, Riddle for Our Times:

The Continued Refusal to Apply the

Miscegenation Analogy to Same-Sex

Marriage,

54 Rutgers L. Rev. 999 (2002).................... 21

xii

TABLE OF AUTHORITIES

(continued)

Ross, Josephine, The Sexualization of

Difference: A Comparison of Mixed-

Race and Same-Gender Marriage,

37 Harv. C.R.-C.L. Rev. 255 (2002)......

Schatschneider, Rebecca, On Shifting

Sand: The Perils of Grounding the

Case for Same-Sex Marriage in the

Context of Antimiscegenation,

14 Temp. Pol. & Civ. Rts. L. Rev. 285

RARER TRS eee OSU aaa eee

Sealing, Keith E., Blood Will Tell:

Scientific Racism and Legal

Prohibitions Against Miscegenation,

5 Mich. J. Race & L. 559 (2000) ............

Smith, Bridget K., Race as Fiction: How

Film and Literacy Fictions of ‘Mulatto’

Identity Have Both Fostered and

Challenged Social and Legal Fictions

of Race in America, 16 Seton Hall J.

Sports & Ent. L. 44 (2006).....................

Smith, John David, The “Ariel”

Controversy: Religion and

“The Negro Problem” (1993) ..................

xiii

TABLE OF AUTHORITIES

(continued)

Tenuta, Christina M., Can You Really Be

A Good Role Model To Your Child If

You Can't Braid Her Hair? The

Unconstitutionality Of Factoring

Gender And Sexuality Into Custody

Determinations,

14 N.Y. City L. Rev. 351 (2011)...........000.... 33

Trosino, James, American Wedding:

Same-Sex Marriage and the

Miscegenation Analogy,

ee es ee is Be i a icncincctccscansvcescsonionens 6

Wallenstein, Peter, Tell the Court I Love

My Wife: Race, Marriage, and Law—

An American History (2002) .................006- 5, 8

Wardle, Lynn D., The Potential Impact of

Homosexual Parenting on Children,

1997 U. Ill. L. Rev. 833............. 13, 20, 29, 31

Wolfson, Evan, Why Marriage Matters:

America, Equality, and Gay People’s

pL 3

STATEMENT OF INTEREST

As one of the oldest among historically black

colleges and universities, Howard University

School of Law has long placed the defense of

human rights, equality, and dignity at the

heart of its educational practice.! This Court

faces the question of whether marriage rights

should be available to same-sex couples on the

same terms as to opposite-sex couples.

In seeking to answer the question, the Court

likely will confront—directly or indirectly—the

argument that the struggle for equal rights for

same-sex couples does not constitutionally or

morally equate with the fight for racial

equality. This brief is a corrective to the flawed

distinction too often drawn between equal

rights for racial minorities and equal rights for

same-sex couples.

SUMMARY OF ARGUMENT

Marriage is a symbol of civil freedom,

a marker of social equality, a badge of full

citizenship, and a_ social resource. of

irreplaceable value. Yet this fundamental

1 No counsel for a party authored this brief

in whole or in part, and no counsel or party

made a monetary contribution intended to fund

the preparation of this brief. The parties have

consented to the filing of this amicus brief.

2

expression of human dignity has been misused

historically as a political sieve for separating

individuals into a preferred class, to which

society grants a broad complement of legal

rights and privileges, and a lesser class,

to which it accords less than a full measure of

equality.

Such was the case when slaves before

Reconstruction and interracial couples in the

days of segregation were denied full marriage

equality. Today, while there is no longer any

serious claim that marriage rights should be

denied on the basis of race, opponents of

marriage equality have attacked same-sex

couples, using precisely the same flawed

arguments that once were used to justify racial

slavery and apartheid.

American society has evolved beyond the

time when anyone would seriously claim that

race-based marriage equality threatens the

moral fabric of our civilization, is contrary to

nature, or is harmful to children. But just

because opponents of marriage equality

continue to use these arguments against

extending marriage rights to same-sex couples

does not make the arguments any more valid

when applied in this context. This Court should

reject these stale arguments and affirm that

the principles under which marriage became

blind to race apply equally to marriages

between two people of the same sex.

3

ARGUMENT

I.

MARRIAGE IS A SYMBOL OF CIVIL

FREEDOM, A MARKER OF SOCIAL

EQUALITY, AND A BADGE OF FULL

CITIZENSHIP

In the United States, as elsewhere, the

institution of marriage has evolved from an

expression of love and companionship, to a

“legal gateway [of] ea protections,

responsibilities, and benefits.” Evan Wolfson,

Why Marriage Matters: America, Equality, and

Gay People’s Right to Marry 4 (2004).2 Both

asa private commitment and as a_ public

declaration, marriage is “a social resource of

irreplaceable value to those to whom it is

offered: it enables two people together to create

value in their lives that they could not create if

that institution had never existed.” Ronald

Dworkin, Three Questions for America,

N.Y. Rev. Books, 9/21/06, at 24, 30. The social

status, public approval, and economic benefits

that marriage confers render the institution not

just a personal act that the law sanctions, but

also a symbol of civil freedom, a marker of

social equality, and a badge of full citizenship.

2 See also William Hohengarten, Same-Sex

Marriage and the Right of Privacy, 103 Yale

L.J. 1495, 1499, 1501—1505 (1994).

4

See Angela P. Harris, Loving Before and After

the Law, 76 Fordham L. Rev. 2821, 2823

(2008).

Apart from the present struggle to accord

marriage rights to same-sex couples, perhaps

no clearer evidence exists of the link between

marriage rights and social equality than the

denial of marriage rights to slaves before the

Civil War and to interracial couples during the

Jim Crow era.* In the antebellum period, no

Southern state granted legal recognition to a

marriage between two slaves, in part because

recognition of slave marriages would not have

conformed to the widely held view of slaves as

childlike, immoral, and incapable of love,

sexual fidelity, or even lasting affection. See

E.J. Graff, What Is Marriage For?: The Strange

Social History of Our Most Intimate Institution

17 (1999). In words that eerily echo those of

modern opponents of same-sex marriage,

Thomas Jefferson himself once maintained that

marriage equality should not be accorded to

slaves because “love seems with them to be

more an eager desire, than a tender delicate

3 See, e.g., Green v. State, 58 Ala. 190, 197

(1877); State v. Gibson, 36 Ind. 389, 403—405

(1871); Thomas Cobb, An Inquiry Into the Law

of Negro Slavery in the United States of

America 242—243 (1858) (Negro Univs. Press

1968).

D

mixture of sentiment and sensation.” Thomas

Jefferson, Notes on the State of Virginia (1787),

reprinted in The Portable Thomas Jefferson 187

(1977).

Later, in the Jim Crow era, the denial of

marriage rights to interracial couples served as

one of the most potent symbols of the less-than-

equal status of African-Americans. As recently

as 1967, sixteen states still had anti-

miscegenation statutes on their books; the last

such statute was not officially repealed until

2000. See Peter Wallenstein, Tell the Court I

Love My Wife: Race, Marriage, and Law—An

American History (2004). Notably, opponents of

interracial marriage justified criminal

prohibitions against such unions by pointing to

the purported detrimental effect of interracial

births and parentage, the supposed destruction

of society if people marry between the races,

and the so-called natural law rationale for

keeping the races separate.

While public debate and opposition over

interracial unions have become shameful relics

of this country’s history, these same arguments

unfortunately have been resurrected and are

now being cited by opponents of marriage

equality for same-sex couples. Without

acknowledging the racial provenance of these

discredited arguments, opponents of marriage

equality have attacked same-sex couples as a

threat to American society, American families,

——<= rl—“=OSTS—

6

heterosexual marriage, and children. None of

these statements is remotely true.

IT.

LIKE MARRIAGE FOR SAME-SEX

COUPLES TODAY, INTERRACIAL

MARRIAGE WAS ONCE WIDELY

CONSIDERED A THREAT TO SOCIAL

ORDER AND THE INSTITUTIONS OF

MARRIAGE AND FAMILY

Like the argument presently cited by

opponents of same-sex marriage, past

opposition to interracial marriage regarded

interracial marriage as a threat to social order,

the institution of marriage, and family. See

Renee Romano, Race Mixing: Black-White

Marriage in Postwar America 45—46 (2003).

Indeed, the chief argument articulated in

opposition to same-sex marriage has been

carbon-copied from the opponents of interracial

marriage. These attacks revolve around the

assertion that extending marriage rights to

same-sex couples poses a risk to the institution

of marriage itself, which is an important tool

for transmitting social values and maintaining

social order.

In the context of the opposition to interracial

marriage, the social order argument relied on

“the underlying assumption ... that the union

of a man and woman of different races did not

fit the concept of marriage.” James Trosino,

7

American Wedding: Same-Sex Marriage and

the Miscegenation Analogy, 73 B. U. L. Rev. 93,

114 (1993). Then, as now, traditionalists

defended marriage as the fundamental building

block of American society and feared the

purported evil of extending marriage equality

to those long denied its benefits. One court

explained that it is through marriage that “the

homes of a people are created,” that these

homes “are the true officine gentium—the

nurseries of States,” and that interracial

marriages would “introduce[e] into their most

intimate relations, elements so heterogeneous

that they must naturally cause discord, shame,

disruption of family circles and estrangement of

kindred.” Green v. State, 58 Ala. 190, 194

(1877).

At the heart of the opposition to interracial

marriage was the perceived need to maintain

social order and preserve American families by

sanctifying racial purity. In his classic work,

An American Dilemma, social philosopher

Gunnar Myrdal pointed out that “[t]he ban on

intermarriage ... is the most pervasive form of

segregation, and the concern about ‘race purity’

is, in a sense, basic .... No excuse for other

forms of social segregation and discrimination

is so potent as the one that sociable relations on

an equal basis between members of the two

races may possibly lead to intermarriage.”

Gunnar Myrdal, An American Dilemma:

8

The Negro Problem and Modern Democracy 606

(1944). Proponents of anti-miscegenation

believed that mixing the races would lead to

social chaos by weakening white blood and, by

extension, white society. See Romano, Black-

White Marriage, at 47. Thus, insofar as a good

and orderly society meant a white society, the

“abominable mixture and spurious issue”

resulting from intermarriage would befoul the

very fabric of American society. See

Wallenstein, Tell the Court I Love My Wife:

Race, Marriage, and Law—An American

History.

In the wake of this Court’s 1967 landmark

decision in Loving v. Virginia, Dr. Martin

Luther King, Jr., stated that “[t]he banning of

interracial marriages from the beginning grew

out of racism and the doctrine of white

supremacy.” Chester Higgins, Mixed Marriage

Ruling Brings Mixed Reaction in Dixieland,

JET, June 29, 1967, at 24. This white

supremacist ideology was evident in assertions

by seemingly rational ordinary citizens that

mixed-race individuals threatened society by

virtue of their multi-racial identity. As a reader

noted in a letter to the editor of The

Independent, the “negro brute” who rapes white

women is “nearly always a mulatto ... with

enough white blood in him to replace native

humility and cowardice with Caucasian

audacity.” See George Fredrickson, The Black

9

Image in the White Mind: The Debate on Afro-

American Character and Destiny, 1817-1914, at

277 (1987). The general premise behind such

bigoted statements was that, while black people

were perceived to be meek and cowardly,

interracial couples would breed mixed-race

children who would perform activities that one

would only engage in from the audacity of being

“white.”

Just as interracial marriage once did not fit

the ideal conception of marriage because it

introduced racial “impurity” into the sacred

institution, opponents of same-sex unions often

argue that such unions purportedly represent a

threat to the institution itself as they would

introduce a form of pollution to marriage.

Specifically, to so-called marriage

traditionalists, “gay marriage threatens

monogamy because homosexual couples

tend to see monogamy as nonessential, even to

the most loyal and committed relationships.”

Stanley Kurtz, The Libertarian Question:

Incest, Homosexuality, and Adultery, Nat. Rev.

Online (Apr. 30, 2003), http://www.national

review.com/articles/206752/libertarian-question

/stanley-kurtz.

Echoing the argument levied against

interracial marriage, opponents of same-sex

marriage now point to marriage and the family

as the main social device to transmit values

and beliefs across generations and argue that

10

value transmission can only be successfully

accomplished in two-parent, mixed-gender

households.‘ But just as it was in the context of

race, this social order argument is merely a

form of pervasive, insidious discrimination and

a baseless stereotype, camouflaged as a

functional basis to promote social order.

Modern American society recognizes that

interracial marriage causes no harm to society,

nor does it threaten to undermine the

institution of marriage. Regardless of views

by individual communities on interracial

marriage, it is widely acknowledged and

accepted that an individual’s decision to marry

outside of his or her race is a personal decision

entitled to civil recognition. Setting aside the

discredited arguments used against interracial

marriage, there can be no credible evidence

that allowing couples of the same sex to marry

4 See Less Faith in Judicial Credit: Are Federal

and State Defense of Marriage Initiatives

Vuinerable to Judicial Activism?: Hearing

Before the Subcomm. on the Constitution, Civil

Rights and Prop. Rights of the S. Comm. on the

Judiciary, 109th Cong. 68 (2005) (statement of

Lynn Wardle, BYU Professor of Law)

(“[M]arriage is the great prize. It is the primary

mediating structure through which values are

transmitted to society in general and to the

rising generation, in particular.”).

11

would threaten either American society or the

institution of marriage itself.

iil.

LIKE SAME-SEX COUPLES TODAY,

INTERRACIAL COUPLES WERE ONCE

CONDEMNED AS UNNATURAL

AND PATHOLOGICAL

The second parallel between past opposition

to interracial marriage and _. present-day

opposition to same-sex marriage is the long-

discredited notion that such relationships are

not “natural” because they are: (1) purely

sexual, (2) symptoms of psychological

pathology, (3) contrary to biology, and

(4) contrary to God’s plan. Just as this notion

failed with respect to race, it too fails here.

A.

Interracial Relationships Were Once

Framed as Purely Sexual, Just as Same-

Sex Relationships Are Framed Today

The demeaning, sexualized rhetoric used to

oppose interracial marriage is now being

recycled by opponents of same-sex marriage.

Yet, here again, these arguments. are

completely unfounded as a basis to deny same-

sex couples the right to marry.

Historically, “laws that made mixed-race

marriage illegal were part of a package that

also criminalized sexual relations between

12

unwed individuals across racial lines

In essence, ‘interracial marriage’ was a symbol

or code word for sexual activity between black

men and white women.” Josephine Ross, The

Sexualization of Difference: A Comparison of

Mixed-Race and Same-Gender Marriage,

37 Harv. C.R.-C. L. Rev. 255, 257-258 (2002).

To justify expansion and reinstatement of

miscegenation laws, legislators, policymakers,

and judges “began to define and label all

interracial relationships, even longstanding,

deeply committed ones, as illicit sex rather

than marriage.” Herbert Brown, History

Doesn't Repeat Itself, but it Does Rhyme—

Same-Sex Marriage: Is the African-American

Community the Oppressor This Time? 348.U.

L. Rev. 169, 173 (2007). According to this

narrative, “[bjJlack men were sexualized as

having large sexual libidos; black women were

assumed to be promiscuous.” Ross,

Sexualization, at 287, n. 129. There was no

recognition of intimacy, romantic love, or

commitment among sexual minorities. See id.,

at 255—257.5

The sexualization of black men became

particularly acute at the conclusion of the Civil

5 See, e.g., Amicus Brief of the American Center

for Law & Justice Northeast, at 32-33, In re

Marriage Cases, A110651 (Cal. Ct. App. 2005)

(referring to gay males’ “promiscuity”).

13

War. The imagery of this “predatory sexuality”

contributed to the justification of segregation in

nearly every aspect of life. For example, Judge

Thomas Norwood, a prominent southern jurist

and congressperson, described in his speech

“Address on the Negro” the animalistic imagery

of black men and women stalking whites in the

street. He stated, “fijllicit miscegenation

thrives and the proof stalks abroad in breeches

and petticoats along our streets and highways.”

Thomas N. Norwood, Address on the Negro 26

(1907). Race and sex became inextricably

entangled because “[t]he abolition of slavery

had opened a door in the mind of every

Southerner: a nightmarish vision of an

inevitable overthrow of sexual taboos between

black and white.” Reginald Leamon Robinson,

Race, Myth and Narrative in the _ Social

Construction of the Black Self, 40 How. L. J. 1,

97 (1996).

Today, the rhetoric used by opponents of

same-sex marriage is rife with sexualization.

Marriage traditionalists portray gays and

lesbians as promiscuous, fundamentally

controlled by their sexual desires, and always

more interested in their own = sexual

gratification. See, e.g., Carlos A. Ball & Janice

Farrell Pea, Warring with Wardle: Morality,

Social Science, and Gay and Lesbian Parents,

1998 U. Ill. L. Rev. 253, 257 (challenging Lynn

D. Wardle, The Potential Impact of Homosexual

14

Parenting on Children, 1997 U. Ill. L. Rev.

833).

Although the sexualization of same-sex

couples is sometimes blunt, it is usually

achieved by using subtle code words. For

example, same-sex couples who wish to be

married are described as succumbing to their

“adult needs” and “sexual preferences.”

Oppositely, male-female sexuality is phrased as

the responsible choice, implying that

homosexuality is, by definition, irresponsible.

Illustrating the use of subtle code words, the

Coalition of African American Pastors claims

that “male-female unions uniquely provide ...

the most promising and protective environment

for marital relations, including the expression

of safe sexual relations and _ responsible

procreation.” Amicus Brief of Coalition of

African American Pastors at 5-6,

Hollingsworth v. Perry, 133 S. Ct. 786 (2012).

By marking male-female sexuality as unique,

safe, and responsible, the Coalition implies that

same-sex sexuality (and marriage) is unsafe

and irresponsible.

In sum, “[t]he similarity between opposition

to mixed-race and same-sex couples lies not

only in the laws used to discourage those

relationships, but also in the arguments offered

to support such laws.” Ross, Sexualization, at

263. The denial of marriage rights to same-sex

couples supports the sexualization of gay and

15

lesbian intimacy because it “affect[s] the nature

of the sexuality, [by] making it secret, closeted

and sinful.” Jd., at 260.

B.

Pseudoscientific Arguments Were Used to

Support Anti-Miscegenation Laws and Are

Currently Being Used to Deny Same-Sex

Couples the Right to Marry

Opponents of _ interracial marriage

frequently relied on pseudo-scientific theories,

such as eugenics,® to justify their beliefs.

Eugenicists asserted that miscegenation would

produce offspring inferior to either parent and

“brin[g] the better down to the level of the

lower.” Keith Sealing, Blood Will _ Tell:

Scientific Racism and Legal Prohibitions

Against Miscegenation, 5 Mich. J. Race & L.

559, 565 (2000); see also André Pichot, The Pure

Society: From Darwin to Hitler 303 (David

Fernbach trans., Verso 2009) (2001). Relying on

pseudoscience such as phrenology, eugenicists

6 Used here, the term “eugenics” refers to the

school of thought that “the study of the

agencies under social control that may improve

or impair the racial qualities of future

generations either physically or mentally.”

Preface to A Decade of Progress in Eugenics:

Scientific Papers of the Third International

Congress of Eugenics, at iv (1934).

16

assigned a biological origin to the social and

economic divisions between whites and blacks.

They then used their findings to argue that the

dichotomy between the purportedly superior

whites and inferior blacks was so biologically

entrenched that the only way to maintain a

civil society was to implement rigid boundaries

between the races. See Julie Novkov, Racial

Constructions: The Legal Regulation of

Miscegenation in Alabama, 1890-1934, 20 Law

& Hist. Rev. 225, 244—250 (2002). At the heart

of the eugenicists’ attack on anti-miscegenation

was the belief in a strict racial hierarchy and

fear that failure to abide by such hierarchy

would lead to racial and social degeneration.

See, e.g., W.A. Plecker, Virginia’s Effort to

Preserve Racial Integrity, in A Decade of

Progress in Eugenics: Scientific Papers of the

Third International Congress of Eugenics 105

(1934).

Inevitably, the legal community came to

reflect and adopt the eugenics position. In 1854,

the California Supreme Court referred to

Chinese individuals as “a race of people whom

nature has marked as inferior, and who are

incapable of progress’ or intellectual

development beyond a certain point.” People v.

Hall, 4 Cal. 399, 405 (1854) (holding the

testimony of Chinese witnesses inadmissible

against a white defendant in a murder trial).

Nearly 100 years later, when California’s

17

supreme court concluded that the State’s anti-

miscegenation laws violated the Equal

Protection Clause, one justice dissented, relying

on a variety of eugenicist research. He stated

that “the free mixing of all the races could in

fact only lower the general level” and that “the

crossing of distinct races is_ biologically

undesirable and should be discouraged.” Perez

v. Sharp, 198 P.2d 17, 4445 (Cal. 1948)

(Shenk, J., dissenting). Further, Madison

Grant, a prominent lawyer during the early

1900s, used eugenics to argue that interracial

marriage amounted to “race suicide,” and

insisted that “[t]he laws against miscegenation

must be greatly extended if the higher races

are to be maintained.” Madison Grant, The

Passing of the Great Race, or, The Racial Basis

of European History 56 (1916). By 1934, largely

owing to these pseudoscientific beliefs, 29 of the

48 states prohibited marriage between white

and black Americans. Plecker, supra, at 106.

In addition to eugenics, questionable social

science claims were used to support arguments

opposing interracial relationships in the same

way that such research is now being used

against same-sex couples. As late as the 1980s.

some psychologists asserted that people choose

to intermarry because of a “deep-seated

psychological sickness” or a willingness to “defy

the prevalent cultural prejudice of society,” “the

lure of the _ exotic,” to repudiate’ their

18

background, and because of “neurotic self-hate

or self-degradation.” See generally Ernest

Porterfield, Black-American Intermarriage in

the United States, 5 Marriage & Fam. Rev. 17,

22 (1982). Other social scientists theorized that

interracial coupling resulted from “more

conscious ulterior motives [such as] (a) sexual

curiosity, preoccupation or revenge; (b) the

desire for social or economic mobility; and

(c) exhibitionism.”?

Racial eugenics and social science claims

about the pathology of interracial attraction

have been universally discredited,* but the

misapplication of scientific methods has

continued in the debate on same-sex marriage.

See Brad Harrub et al., This Is The Way God

Made Me: A_ Scientific Examination of

Homosexuality and the ‘Gay Gene,’ available at

http://www.trueorigin.org/gaygeneOl.asp. Just

as in the context of race, the use of

pseudoscience to persecute sexual minorities

has a long history. Scientists in the late

7 Jeanette R. Davidson, Theories about Black-

White Interracial Marriage: A_ Clinical

Perspective, 20 J. Multicultural Counseling &

Dev. 150, 150 (1992).

8 For a history of the development and failure

of eugenics as a scientific field, see Marks,

Human Biodiversity: Genes, Race, and History

89-95, 150—151 (1995).

19

nineteenth and early twentieth centuries

theorized that homosexuality was linked to

heritable physical and endocrinal

abnormalities. See Nancy Ordover, American

Eugenics: Race, Queer Anatomy, and _ the

Science of Nationalism 94—-95 (2003). Writing

on the heritability of homosexuality and other

“sexual perversions,” nineteenth-century

physician and researcher G. Frank Lydston

argued that “(t]he child of vice has with it, in

many instances, the germ of vicious impulse,

and no purifying influence can save it from

following its own inherent inclinations,” which

should be interpreted to reflect the belief that

gays and lesbians were immutably defective

both socially and physically. Jd., at 75. To cure

the purported affliction, Lydston and his

colleagues recommended surgical procedures,

such as castration, and prescribed medicines,

such as opium. /d., at 76. Others cast for legal

solutions that, in addition to deterring the

“crime” of homosexuality, would “remov[e] the

causes that lead to it... .” Jd., at 78 (quotation

omitted).

The legal community contributed to the

enforcement of these unscientific beliefs, as it

once did to support anti-miscegenation laws.

The most widespread examples were the

sterilization statutes enacted by thirty states

between 1907 and 1932. Id. The judicial

systems in these states administered this

20

inhumane punishment based on the belief that

the “treatment” was both deterrent and

remedial. Jbid. In Davis v. Walton, 276 P. 921,

923 (Utah 1929), the appellant, an inmate

facing sterilization for engaging in same-sex

activity with another inmate, challenged the

validity of the law under the state constitution.

Although the court concluded that the evidence

was insufficient to find that the appellant’s

activity was “habitual” as required by the

statute, it upheld the law because, in that

court’s opinion, the statute was therapeutic and

not penal. Jd., at 924. Put otherwise, the Davis

court determined that individuals such as the

appellant in that case were in need of medical

help, and surgical castration was a valid part of

their “proper care.” Id.

Although theories that homosexuality is a

mental illness have been long discredited in the

mainstream medical community, opponents of

same sex marriage continue to use

pseudoscientific arguments to deny sexual

minorities the right to marry. See, e.g., Wardle,

Homosexual Parenting, at 852-857. Among

other things, opponents attempt to challenge

the scientific methods of certain psychological

studies by drawing conclusions that differ from

those of the researchers, and they often

reference studies that the psychological

21

community has discredited.® Making

arguments like those made against interracial

couples, opponents of marriage equality use

faulty science to frame homosexuality as an

“illness” and erroneously suggest that there is a

legitimate scientific justification for

stigmatizing same-sex couples and denying

them the right to marry.

Characterizing interracial relationships as

having origins in and leading to physical and

psychological pathology lent credence to the

idea that such unions should be criminalized

or, at the very least, not given the same legal

status as intraracial unions. Likewise,

opponents of same-sex marriage have used and

continue to apply faulty scientific “proof” to

legitimize the belief that marriage equality

would negatively impact’ society. Such

9 See generally Becker, Many are Chilled, at

233-242 (examining opponents’ psychological

studies and finding social scientists and

psychologists have universally rejected such

studies); Josephine Ross, Riddle for Our Times:

The Continued Refusal to Apply the

Miscegenation Analogy to Same-Sex Marriage,

54 Rutgers L. Rev. 999, 1003-1006 (2002)

(examining a psychological study cited by the

government in opposition to marriage equality

and finding that the government

misrepresented the study).

22

arguments have no validity. Just as they have

been rejected in the context of race, they should

not be used to deny same-sex couples the rights

enjoyed by their heterosexual counterparts.

C.

Judeo-Christian Theological

Interpretations Often Have Been Invoked

to Challenge Marriage for Both

Interracial and Same-Sex Couples

As is the case with same-sex marriage, the

Bible served as a primary source in the debate

against interracial marriage. For example,

anti-miscegenationists argued that the Bible

directly addressed the mixing of the races in

Leviticus 19:19: “You shall not let your

livestock breed with another kind. You shall

not sow your field with mixed seed. Nor shall a

garment of mixed linen and wool come upon

you.” James Graham Cook, The Segregationists

214 (1962). In 1867, a white supremacist

clergyman wrote, “A man can not commit so

great an offense against his race, against the

country, against his God, in any other way, as

to give his daughter in marriage to a negro—a

beast—or to take one of their females for his

wife.” Ariel [Buckner H. Payne], The Negro:

What Is His Ethnological Status? 48 (1867),

reprinted in John David Smith, The “Ariel”

Controversy: Religion and “The Negro Problem”

48 (1993).

23

To justify reinstatement and expansion of

miscegenation laws, legislators, policymakers,

and judges declared interracial marriage

unnatural and contrary to God’s will. One court

explained, “the natural law which forbids their

intermarriage and that social amalgamation

which leads to a corruption of races, is as

clearly divine as that which imparted to them

different natures.” State v. Gibson, 36 Ind. 389,

404 (1871). Another court declared that

interracial marriages are “not only unnatural,

but also productive of deplorable results ....

They are productive of evil, and evil only,

without any corresponding good.” Wolfe v.

Georgia Ry. & Elec. Co., 58 S.E. 899, 902-903

(Ga. Ct. App. 1907). Notably, the trial judge in

Loving, Judge Leon Bazile of the Circuit Court

of Caroline County, articulated what is perhaps

the most famous religious explanation in

support of anti-miscegenation laws:

Almighty God created the races

white, black, yellow, malay and red,

and he placed them on_ separate

continents. And but for the interference

with his arrangement there would be

no cause for such marriages. The fact

that he separated the races shows that

he did not intend for the races to mix.

Loving, 388 U.S., at 3 (citing trial court’s

reasoning).

24

Despite the fact that it was improper at the

time, and remains so today, to rely on religious

doctrine as a basis for public policy, opponents

of same-sex marriage are currently citing (their

own) Biblical interpretations to suggest that

homosexuality is unnatural because it is

against God’s will. Like their anti-

miscegenationist counterparts, opponents of

marriage equality almost always attempt to

clothe their arguments in literal and selective

interpretations of the Bible, often quoting

Leviticus 18:22, “You shall not lie with a male

as with a woman; it is an abomination.”

Focus on the Family, one of the most vocal

organizations opposing both marriage and civil

unions between same-sex couples, argues that

“[mjarriage is the first institution ordained by

God and served from the beginning as the

foundation for the continuation of the human

race.”!© Referencing Adam and Eve, Leviticus,

and “God’s destruction of the city of Sodom for

alleged homosexual depravity,” opponents of

marriage by same-sex couples assert that those

who engage in homosexual sexual activity are

10 Focus on the Family’s Position Statement on

Same-Sex Marriage and Civil Unions,

CitizenLink (Feb. 25, 2014), available at

http://www.citizenlink.com/2010/06/focus-on-

the-familys-position-statement-on-same-sex-

marriage-and-civil-unions/.

25

sinners, and marriage should be constrained to

Biblical description of marriage as between a

man and a woman.!! Becker, Many are Chilled,

at 220. Even without referencing specific

religious scripture, in an amicus brief to this

Court submitted by Catholics for the Common

Good in Hollingsworth v. Perry, they expressed

that “2,000 years’ worth of teachings on

marriage, family, sexuality, morality and other

matters related to the truth about human

beings” are not inclined to change. !”

In sum, none of the arguments regarding

the “naturalness” of same-sex relationships are

sufficient to deny same-sex couples the right to

marry. While opponents of marriage equality

erroneously suggest that there is a legitimate

scientific and_ religious justification for

stigmatizing same-sex couples and denying

them the right to marry, sadly, they refuse to

acknowledge that same-sex relationships can

11 See also Congregation for the Doctrine of the

Faith, Letter to the Bishops of the -Catholic

Church on the Pastoral Care of Homosexual

Persons (Feb. 26, 2014), available at

http://www.vatican.va/roman_curia/congregatio

ns/cfaith/documents/rc_con_cfaith_doc_1986100

1_homosexual-persons_en.html.

12 Amicus Brief of Catholics for the Common

Good, at 20, Hollingsworth v. Perry, 133 S. Ct.

786 (2012).

26

indeed be based on commitment and love, thus

reaffirming and entrenching the sexualized

stereotypes of sexual minorities. This Court

should reject any such arguments made by the

opponents of marriage equality here.

IV.

LIKE SAME-SEX PARENTING TODAY,

INTERRACIAL PARENTING WAS ONCE

CONSIDERED DAMAGING TO THE

DEVELOPMENT AND PSYCHOLOGICAL

HEALTH OF CHILDREN

Procreation and a couple’s ability to raise

healthy, productive children is a prominent

argument against marriage for same-sex

couples; this mirrors the arguments that were

used against interracial marriage.'* See

13 See Courtney G. Joslin, Searching for Harm:

Same-Sex Marriage and the Well-Being of

Children, 46 Harv. C.R.-C.L. L. Rev. 81, 85

(2011) (“As others have noted, the same-sex

marriage cases were not the first ones in which

parties relied on alleged harms to children to

support the denial of marriage to a class of

people; states made similar claims in cases

challenging anti-miscegenation statutes.”); see

also Carlos A. Ball, The Blurring of the Lines:

Children and Bans on Interracial Unions and

Same-Sex Marriages, 76 Fordham L. Rev. 2733,

2751 (2008).

27

Bottoms v. Bottoms, 457 S.E. 2d 102, 108 (Va.

1995); Romano, Black-White Marriage, at 80.

Historically, there were two strains to the

“harm to children” argument with respect to

interracial marriage: first, that mixed-race

children were somehow defective or otherwise

abnormal,'4 and second, that society would

ostracize mixed-race children, resulting in

psychological damage.

A.

Interracial Marriage Was Once

Considered Harmful to Child

Development, Just as Same-Sex Marriage

Is Considered to Be Today

At the heart of the anti-miscegenationist

argument that mixed-race coupling produced

damaged children was the misplaced fear that

these children would somehow suffer from an

14 Schatschneider, On Shifting Sand: The Perils

of Grounding the Case for Same-Sex Marriage

in the Context of Antimiscegenation, 14

Temp. Pol. & Civ. Rts. L Rev. 285, 300 (2004)

(“Ironically, the state’s objection to interracial

marriage was generally that such couples

might procreate, while its complaint about

same-sex couples is that (without assistance)

they cannot. In either case, the state has

fretted about the moral and _ physical

desirability of children born to such unions.”).

28

abnormal development due to their being

raised in a home that did not quite look like the

rest of America. Barbara Kopytoff & A. Leon

Higginbotham, Jr., Racial Purity and

Interracial Sex in the Law of Colonial and

Antebellum Virginia, 77 Geo. L. J. 1967, 2005—

2006 (1989) (describing white Virginians

discomfort with mixed-race individuals because

they “did not fit into the whites’ vision of the

natural order of things”). Specifically, many

white Americans believed that biracial

individuals were “a degenerate race because

they had ‘White blood’ which made them

ambitious and power hungry combined with

‘Black blood’ which made them animalistic and

savage.” See David Pilgrim, Professor of

Sociology, Ferris State University, The Tragic

Mulatto Myth (2000), http://www.

ferris.edu/jimcrow/mulatto.

For example, in Scott v. State, 39 Ga. 321,

323 (1869), a black woman appealed her

conviction for the crime of cohabiting with a

white man. In rejecting her defense that she

had married the man in another state,

Georgia’s supreme court reasoned: “The

amalgamation of the races is ... always

productive of deplorable results. Our daily

observation shows us, that the offspring of

these unnatural connections are generally

sickly[,] effeminate, and ... inferior in physical

29

develcpment and strength, to the full-blood of

either race.” Id.

Today, opponents of same-sex marriage

make similar arguments that children of same-

sex couples will grow up defective. For example,

opponents to same-sex marriage have held the

belief that children raised in a same-sex

household cannot develop “normally” without

the presence of a mother and father. See

Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y.

2006). Additionally, opponents to same-sex

marriage insist that children of such unions

risk developing “homosexual interests and

behaviors.” See Wardle, Homosexual Parenting,

at 852. These fears seem to imply that the

development of children in same-sex

households is somehow flawed and unnatural

compared to children raised in heterosexual

households.

B.

Children of Interracial Marriages

Were Once Thought to Be in Danger of

Psychological Trauma, Just as Children of

Same-Sex Couples Today

Anti-miscegenationists also focused on the

psychological stress resulting fom _ the

supposed lack of racial identity. See Romano,

Black-White Marriage 136, 220. A common

belief existed that “it was better for a child to

be reared in [a pure blood] institution, no

30

matter how bad, than to be adopted into a

family of a different race, no matter how good.”

Randall Kennedy, Interracial Intimacies: Sex,

Marriage, Identity, and Adoption 12 (2003).

This logic supported the policy of race

matching, where mixed-race children were

assigned a racial identity—usually black—and

then parents of that race raised them. See id.,

at 367. As a result, children born out of wedlock

from a white woman and a black man were

often put up for adoption so that a family

appropriate to the child’s assigned color would

raise him or her. Jd., at 368-370. Incases

where the parents had been married, courts

often awarded custody to the parent whose skin

tone more closely resembled the child’s, even if

that parent was otherwise unfit or even

abusive. Id., at 372-375.

A common expression of the psychological

harm incurred by mixed-race children is the

“tragic mulatto.” See Bridget Smith, Race as

Fiction: How Film and Literary Fictions of

‘Mulatto’ Identity Have Both Fostered and

‘Shallenged Social and Legal Fictions of Race in

America, 16 Seton Hall J. Sports & Ent. L. 44,

64, 112-114 (2006). The archetypal “tragic

mulatto” was a “beautiful, Christian, near-

white heroine trapped between racial worlds

and locked out of domestic harmony because of

fher] ‘one drop’ of ‘black blood.” Suzanne Bost,

Fluidity Without Postmodernism: Michelle Cliff

31

and the “Tragic Mulatta” #£Tradition,

32 Afr. Am. Rev. 673, 675 (1998). Often the

discovery of the character’s biracial identity—

or, more to the point, nonwhite identity—led to

violence, fatal illness, or suicide. Nancv

Bentley, White Slaves: The Mulatto Hero in

Antebellum Fiction, 65 Am. Literature 501, 505

(1993); Debra Rosenthal, The White Blackbird:

Miscegenation, Genre, and the Tragic Mulatta

in Howells, Harper, and the “Babes of

Romance,” 56 Nineteenth-Century Literature

495, 499 (2002).

Today, opponents of marriage equality

suggest that children will be subject to social

condemnation, exclusion, and will become

angry, rebellious, and perhaps suicidal because

their families are different. See Wardle,

Homosexual Parenting, at 854, 856, n. 115.

They maintain that these children face the

double-barreled risk of developing “homosexual

interests and behaviors,” which in turn

heightens the chances that such children will

face mental illness, a tendency for criminal

behavior, and suicide. Jd., at 852—854.15

15 In the watershed case of Baehr v. Miike,

experts for the State claimed that children

raised by same-sex parents were at risk of

economic hardship, poor academic performance,

behavioral problems, and (for girls) a higher

risk of having a child out of wedlock. When

32

As they did in the racial context, some

marriage traditionalists argue that children are

always best raised by heterosexual married

couples because these children are “less likely

to be on illegal drugs, less likely to be retained

in a grade, less likely to drop out of school, less

likely to commit suicide, less likely to be in

poverty, less likely to become juvenile

delinquents, and for the girls, less likely to

become teen mothers.” James C. Dobson,

Eleven Arguments Against Same-Sex Marriage

(Feb. 26, 2014), http://www.ccctucson.org/PDF/

Eleven%20Arguments%20against%20Same-

Sex%20Marriage.pdf. By contrast, in

Mr. Dobson’s view, children of same-sex

families “are caught in a perpetual coming and

going’ because “homosexuals are rarely

monogamous, often having as many as three

hundred or more partners in a lifetime.” Jd.

pressed about the evidence to support these

risks, however, the State conceded that:

“[s]Jame-sex couples have the same capability as

different-sex couples to manifest the qualities

conducive to good parenting” and that lesbian

and gay people are capable of raising healthy

children. Joslin, supra at 86—87 (citing Baehr v.

Miike, No. 91-1394, 1996 WL 694235, at *5, *7

(Haw. Cir. Ct. Dec. 3, 1996), affd, 950 P. 2d

1234 (Haw. 1997)).

33

The notion that gay parents are a threat to

their own children or unfit to be parents in

general has even been given some credence in

the courts.!* In Roe v. Roe, 324 S.E. 2d 691, 693

(Va. 1985), a custody case where a divorced

father was engaged in a_ homosexual

relationship, “[t]he court also expressed concern

as to ‘what happens when the child turns

twelve or thirteen, for example, when she

begins dating or wants to have slumber parties,

how does she explain [the] conduct [of her

parents].’” The court ultimately concluded, “the

father’s continuous exposure of the child to his

immoral and illicit relationship renders him an

unfit and improper custodian as a matter of

law. ... The father’s unfitness is manifested by

his willingness to impose this burden upon her

in exchange for his own gratification.” Jd., at

16 See also Christina M. Tenuta, Can You

Really Be A Good Role Model To Your Child If

You Can't Braid Her Hair? The

Unconstitutionality of Factoring Gender and

Sexuality into Custody Determinations, 14 N.Y.

City L. Rev. 351 (2011) (citing J.L.P. v. D.J.P.,

643 S.W. 2d 865, 867, 869 (Mo. Ct. App. 1982)

(fear of child molestation); S. v. S., 608 S.W. 2d

64, 66 (Ky. Ct. App. 1980) (children might

develop homosexual preferences)).

34

694.17 Similarly, in Lofton v. Sec’y of the Dep't

of Children & Family Services, the Eleventh

Circuit found a ban on same-sex couples

adopting constitutional because “it is rational

for Florida to conclude that it is in the best

interests of adoptive children, many of whom

come from troubled and unstable backgrounds,

to be placed in a home anchored by both a

17 See also id., at 358, n. 42 (citing N.K.M. v.

L.E.M., 606 S.W. 2d 179 (Mo. Ct. App. 1980)

(psychological harm)).

35

father and a mother.”!® 358 F.3d 804, 820

(11CA 2004).!9

18 Notably, same-sex couples are allowed to

adopt in all but three states. Mary Bonauto,

Ending Marriage Discrimination: A Work in

Progress, 40 Suffolk U. L. Rev. 813 (2007).

Since Bonauto’s article was published, the state

of Florida chose not to appeal the decision of a

court granting parental rights to a gay father.

Florida had previously been the only state to

explicitly foreclose same-sex parents from

adopting. See Florida Dept. of Children and

Families v. Adoption of X.X.G., 45 So. 3d 79

(Fla. Ct. App. 2010); Manuel Ramos,

McCollum: No appeal to keep Fla. gay adoption

ban, Orlando Sentinel, 10/22/2010, available at

<http://articles.orlandosentinel.com/2010-10-

22/news/os-gay-adoption-bill-mccollum-

20101022_1 gay-adoption-ban-martin-gill-

equality-florid> (visited 2/19/13).

19 Despite the use of such _ invidiously

prejudiced rhetoric, the medical establishment

increasingly has modified its positions to be

more inclusive, and states are following suit in

changing laws governing family relations. For

example, in 2004, the American Psychological

Association adopted a policy statement that

lesbians and gay men are not per se less likely

to be good parents than parents who identify as

heterosexual. American Psychological

Association, Sexual Orientation, Parents &

Children (July 2004). Similarly, the American

36

Opponents of mixed-race marriages, like

opponents of same-sex marriages, appeal to the

public’s understandable concern for the welfare

of children. However, in doing so, both rely on

antiquated stereotypes. In the case of anti-

miscegenation, opponents sought to limit

marriage in order to prevent procreation among

the group in question. With respect to same-sex

marriage, opponents limit marriage in order to

promote the notion of procreation as the

exclusive privilege of the heterosexual

population.

CONCLUSION

There is nothing new in the arguments

against same-sex couples having the freedom to

marry. No matter how much opponents of

marriage for same-sex couples insist that “this

time it is different,” there remains an appalling

familiarity to the refrain that allowing same-

sex couples the same human dignity as

everyone else will threaten social order,

degrade individuals, and harm children. Just

as they do now, some marriage traditionalists

Academy of Pediatrics issued a_ policy

statement favoring second-parent adoption by

same-sex parents. Ellen C. Perrin, Technical

Report: Coparent or Second-Parent Adoption by

Same-Sex Parents, 109 Pediatrics 341-344

(Feb. 2002).

37

claimed with all sincerity and unwavering

conviction that if African-Americans were

accorded full human dignity, our society, our

morality, and our faith would come to grief and

lay in ruins. Quite obviously, that has not

happened. Nor will these premonitions come to

pass if this Court joins the growing national

consensus in declaring that same-sex couples

cannot be denied the right to marry.

Respectfully submitted,

Benjamin G. Shatz, Counsel of Record

MANATT, PHELPS & PHILLIPS, LLP

11355 W. Olympic Blvd.

Los Angeles, CA 90064

(310) 312-4000 Fax (310) 312-4224

BShatz@Manatt.com

Aderson Bellegarde Francois

HOWARD UNIVERSITY SCHOOL OF LAW

CIVIL RIGHTS CLINIC

2400 Sixth Street, N.W.

Washington, D.C. 20059

(202) 806-8082 Fax (202) 806-8436

AFrancois@law.Howard.edu

Attorneys for Amicus Curiae

Howard University School of Law

Civil Rights Clinic