Same-Sex <i>Loving</i>: Subverting White Supremacy Through Same-Sex Marriage

Abstract

This Article marks the 40th anniversary of Loving v. Virginia - the landmark decision that responded to the question of the constitutionality of anti-miscegenation laws by firmly stating that the fundamental right to marry could not be restricted by race - by taking up the issue of the case's applicability in the context of same-sex marriage. The invocation of Loving has generally been in a manner that invites comparisons between interracial and same-sex marriage. Pro same-sex marriage arguments that utilize this comparison - which has come to be known as the “Loving Analogy” - include the decision's freedom of choice and antidiscrimination elements, but rarely incorporate the Supreme Court's antisubordination message, as articulated through its anti-white supremacy stance. This Article seeks to rectify that. It argues that same-sex marriage subverts White supremacy by undermining heterosupremacy, countering notions of White superiority, and, because of the very existence of interracial same-sex couples, striking society “color-blind,” thus rendering race temporarily invisible. This Article reaches the conclusion that same-sex marriage is a civil rights issue that works against heterosupremacy and White supremacy and that Loving v. Virginia is indeed a case that can and should be extended to sanction same-sex marriage and support Lesbian and Gay couples.