Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage

Abstract

Conversations about the constitutionality of prohibitions on marriage for same-sex couples invariably reduce to the question of whether a meaningful analogy can be drawn between restrictions on same-sex marriage and antimiscegenation laws. In an effort to refocus this debate, this article considers the California Supreme Court's 1948 decision in Perez v. Sharp and its use by advocates in recent litigation to secure marriage rights for gay and lesbian couples. Opponents of marriage rights for members of the LGBT *840 community frequently assert that dispatching Perez in these cases distorts the meaning of that decision and other similar precedents by drawing a false analogy between bans on interracial and same-sex marriage. Professor Lenhardt argues that, instead, Perez's appearance in recent cases helps to clarify the nature of the marriage rights at stake in Loving v. Virginia. She also contends that the strategic use of Perez serves to underscore the extent to which state antimiscegenation laws established not only racial, but also gender-based identity norms.Finally, Professor Lenhardt asserts that Perez's use in recent marriage cases offers a way out of the “analogy” debate, focusing discussion on the nature and substantive effect of race and gender bars on marriage, rather than on a comparison of the groups seeking judicial redress for such restrictions. Professor Lenhardt concludes that a deeper appreciation of the extent to which state-imposed obstacles to marriage have operated to police identity, restrict opportunities for self-definition, and impede belonging can elucidate the true implications and citizenship effects of prohibitions on marriage for same-sex couples.