Straightening Out the History?:
Analogies and Disanalogies Between Same-Sex and Opposite-Race Regulation
Adrienne D. Davis
Visiting Professor, University of Chicago Law School
Not for circulation, quotation, or citation without permission
Whether same-sex couples should marry legally is a question about which progressives legitimately disagree. Among those who argue that the decision should be left to the individual--that is, that marriage should be legally available--many have drawn on the analogy between the historical regulation of same-sex with opposite-race intimacy. While many excellent articles have been written making this case, the literature remains bereft of explorations of the actual historical grounding for the analogy. This paper proposes to conduct such an exploration. First, it argues that the harm of interracial intimacy regulation was not that it kept people apart--securing what might be thought of sexual racial apartheid--but that it was a primary, highly effective tool in creating and reinforcing a caste order. Second, the paper shows how even scholars who articulate miscegenation regulation as caste regulation remain embedded in an apartheid paradigm of regulation. Third, the paper argues that, while the historical analogies between same-sex and opposite-race sexual regulation have been overdrawn, the examined history behind the Loving v. Virginia decision still supports the recognition of same-sex marriage, perhaps in even stronger form.