Same-Sex Marriage is not Miscegenation: Why Loving does not Figure in the Marriage Debate

I. Introduction

Loving v. Virginia[1] was a landmark decision in American family law.  In it, the U.S. Supreme Court struck anti-miscegenation statutes adopted by Virginia as a violation of the Fourteenth Amendment of the Constitution and simultaneously invalidated all such statutes then in force in at least fourteen states across the country.[2] Within four years of the decision, a homosexual couple from Minnesota cited Loving in support of their assertion that Minnesota’s refusal to allow the couple to marry similarly violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.[3] The U.S. Supreme Court dismissed the case for lack of “a substantial federal question,”[4] thereby rejecting petitioners’ argument that the preservation of marriage as a legal relationship between one woman and one man is analogous to the invidious racial discrimination demonstrated in the Virginian statutes at issue in Loving.

Still, almost forty years later, proponents of same-sex marriage continue to assert that the Loving precedent applies equally to both situations.[5] This attempt to analogize the fight to legalize same-sex marriage to the judicial precedent invalidating prohibitions against interracial marriage addressed in Loving fails on multiple fronts; this Note will examine three points in detail. 

First, government actions regarding the two situations are subject to different levels of constitutional scrutiny.  Second, the prohibition of same-sex marriage is not invidious discrimination designed to ensure the supremacy of one group of people over another, [6] but is a constitutional government regulation of the fundamental unit of society in which states have a legitimate, significant and even compelling interest.  Third, Loving does not stand for an undisciplined expansion of the definition of marriage to include any mix of partners who love each other and want to formalize their relationship under the traditional legal umbrella of marriage.  Rather, it was a necessary step in ensuring that marriage, as a union involving members of the opposite sex, would be accessible to members of all races.  Same-sex marriage is simply not the same thing as miscegenation; and thus, the analogy cannot stand.

II.                Background

Loving emerged as one of many steps towards remedying a long history of racial stratification in the United States reaching back to the foundations of the country and the practice of slavery, through the Civil War fought in part to abolish that practice, through continuing racial discrimination in segregated public schools and services, and up to the emotionally and spiritually charged civil rights movement towards equality.  This case addressed just one facet of that movement—anti-miscegenation statutes, or laws that prohibited sexual relations, cohabitation, or marriage between people of different races.[7]

A.     Interracial Marriage in the United States

Long before the Civil War, the first miscegenation statute as applied to marriage was enacted in Maryland in 1661 and was followed over the next sixty years by similar statutes in Virginia, Massachusetts, North Carolina, and Pennsylvania.[8] Until Loving defined such laws as unconstitutional, at least forty-one states enacted them to clearly delineate a division between white and black in terms of marriage and familial rights.[9] For example, Alabama’s statute dated back to 1852, originally prohibited marriage between parties of different races, and sanctioned a one thousand dollar fine for those who would be brazen enough to perform marriage ceremonies for interracial couples.[10] These statutes created and enforced the “boundaries between white and nonwhite” by prohibiting those interracial relationships that “subvert[ed] the model of the white family and . . . threaten[ed] to produce mixed race children.”[11] At a most fundamental level, anti-miscegenation statutes served to “establish and maintain whiteness as a separate and impermeable racial category that all observers could easily identify.”[12] By prohibiting miscegenation, states were attempting to prohibit the “pollution” of the white family and thereby maintain white supremacy.[13]

Such statutes were unsuccessfully challenged as early as the 1860s,[14] but the tensions surrounding miscegenation statutes noticeably increased when the U.S. Supreme Court chose not to hear two miscegenation cases[15] on their merits, even after the decisions in Brown v. Board of Education[16] and Bolling v. Sharpe[17] had declared invidious racial discrimination in schools unconstitutional.  First, the Court denied certiorari to Jackson v. State, wherein the Court of Appeals of Alabama held that the miscegenation statute in question violated neither the Fifth nor the Fourteenth Amendments. [18] Second, the Court denied a Motion to remove Mandate in Naim v. Naim wherein the Supreme Court of Appeals of Virginia upheld an annulment pursuant to a state anti-miscegenation statute.

First, the Jackson court reviewed in some detail the convoluted judicial history of miscegenation in Alabama, noting that nearly thirty years earlier, in 1868, it had upheld the constitutionality of a state statute that provided a harsher penalty for adultery between interracial couples than that for single-race couples.[19] Only a few years later after that, it held a statute providing criminal sanctions for a justice of the peace who performed interracial marriages an affront to the Fifth and Fourteenth Amendments and in conflict with the then recently enacted Civil Rights Act.[20] In 1877, the Alabama Supreme Court overruled that decision and held that the miscegenation statute was a valid exercise of the state’s power to regulate its citizenry.[21] That position was affirmed by the U.S. Supreme Court in Pace v. State;[22] thus, when yet another miscegenation case challenging the constitutionality of an anti-miscegenation statute came up on a writ of certiorari, the Alabama Supreme Court denied it.[23] After carefully reviewing this convoluted history of the miscegenation statutes and cases in Alabama, the Jackson court ultimately upheld the Alabama miscegenation statute as constitutional.  That decision was subsequently denied certiorari by both the Alabama Supreme Court[24] and the U.S. Supreme Court.[25]

Second, the Court chose not to hear Naim v. Naim[26] on its merits.  In Naim the Supreme Court of Appeals of Virginia upheld an annulment pursuant to a state anti-miscegenation statute.[27] The case was initially granted certiorari by the U.S. Supreme Court, which vacated the judgment and remanded it to the state trial court to remedy deficiencies in the record concerning the parties’ relationship to the state of Virginia at the time of their marriage.[28] The Virginia Supreme Court of Appeals subsequently upheld its previous decision stating that the “State courts’ decrees were final and that [it] had no power to return cause to [the] Circuit Court with directions to reopen [the case], gather additional evidence, and render [a] new decision.”[29] The U.S. Supreme Court then denied the parties’ Motion to Recall Mandate and to set the case for oral arguments, stating that its previous decision “[left] the case devoid of a properly presented federal question.”[30] Loving was decided against this jumbled judicial backdrop and would ultimately overrule much of what had come before.

B.     Same-Sex Marriage in the United States

Homosexual relationships have existed in various forms throughout recorded history.[31] Sodomy was criminalized early in U.S. history and was even a capital offense in some states.[32] However, sodomy was not a condemnation per se of homosexual behavior as it applied only to males with male partners, males with female partners or males with animals[33] thus entirely excluding any regulation of lesbian relationships.  However, homosexual behavior was generally frowned upon and homosexual relationships were often hidden from public view until after the Stonewall riots of 1969.[34] As a result of the decision in Loving and the increased efforts of homosexuals to “resist oppressive social practices,”[35] homosexual couples sought to obtain the imprimatur of state-sanctioned marriages on their relationships.  Though there were few laws restricting marriage to heterosexual couples at the time, marriage license applications were refused,[36] marriages were nullified,[37] and marital status was denied[38] on the assumption that same-sex couples simply could not marry.

These situations resulted in several court cases in the 1970s and 1980s in which litigants raised questions of statutory interpretation in their efforts to have their unions sanctioned as a “marriage” in their respective states.[39] Overwhelmingly, opinions from these early cases manifest analogous reasoning: the definition of “marriage” was the union of one man and one woman, thereby making a same-sex marriage a legal impossibility.[40]

Contemporarily, same-sex marriage proponents have shifted their focus from statutory interpretation to constitutional concerns such as the violation of privacy rights,[41] the violation of basic protections under specific state constitutions,[42] and the legality of measures passed by popular vote to amend state constitutions to define marriage as a union between one man and one woman.[43] Though a few courts have held that same-sex couples have the same constitutional right to marry as opposite-sex couples,[44] the popular vote state by state overwhelmingly confirms the public’s desire to maintain marriage as the legal union of one man and one woman.[45]

Presently, only five states have legalized same-sex marriage: New Hampshire, Vermont, Massachusetts, Connecticut, and Iowa.[46] The D.C. Council in Washington, D.C. has voted to legalize same sex marriage in the District and the Mayor has stated he will sign the bill, making it the sixth sovereign to legalize same-sex marriage.[47] Both Maine and California had legalized same-sex marriage at one point, but voters overturned the laws in both states.[48] Washington, D.C., New York, and Rhode Island recognize same-sex marriages performed in other states.[49] Four states—Washington, Oregon, Nevada, and New Jersey—provide same-sex couples the same legal rights as married couples through domestic partnerships.[50] Same-sex marriage has not been recognized in forty-five states, forty-one of which have enacted Defense of Marriage Acts, and thirty of which have defined marriage as being between a man and a woman in their respective state constitutions.[51]

III.             Loving v. Virginia

A.     Facts

Mildred Jeter and Richard Loving were married in Washington, D.C. in June of 1958 and established their home in Virginia.[52] Within four months they were indicted for violating Virginia’s anti-miscegenation statute, and within six months of their marriage date had pled guilty to violating the ban on interracial marriage and received a sentence of one year in jail.[53] The judge suspended the sentence for twenty-five years on condition that the couple vacate the state and not return during that time.[54] His opinion infamously stated that

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.[55]

The Lovings left Virginia and, nearly four years later, filed a motion to vacate the judgment and set aside the sentence claiming that the statute they violated was itself a violation of the Fourteenth Amendment, and thus an unconstitutional infringement of their rights.[56] The motion sat in the state trial court for nearly a year and no decision was issued.[57]

Consequently, the Lovings filed a class action in the U.S. District Court for the Eastern District of Virginia asking that a three-judge panel find the Virginian statutes in question unconstitutional.[58] Within three months of the class action filing, the state trial judge denied the Lovings’ motion which led the couple to submit an appeal to the Supreme Court of Appeals of Virginia.[59] The District Court case was continued until the highest state court heard the Lovings’ constitutional claims.[60] Though it modified the Lovings’ sentence, the Virginia high court affirmed the trial court’s decision and upheld the statute as constitutional.[61] Finally, almost a decade after their marriage, convictions, and sentencing, the Loving’s case came before the U.S. Supreme Court in June 1967.[62]

B.     Scrutiny and Equal Protection

The State’s argument in favor of the constitutionality of the statutes consisted of three main points.  First, regulation of marriage should be left in the hands of the states pursuant to the Tenth Amendment.[63] Second, the appellate court erred in subjecting the statutes in question to strict scrutiny rather than a version of rational basis scrutiny because the statutes, though clearly based on racial classification, provided that all races were subject to punishment of the same type and degree for violations thereof; thus, the statute was not a discriminatory but a generally applicable law.[64] The state argued that the statutes met the legitimate purposes of “preserv[ing] the racial integrity of its citizens, . . . prevent[ing] ‘the corruption of blood,’ ‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride . . . .’”[65] It also argued that scientific evidence as to whether interracial marriages differed significantly from other marriages was not clear and thus, the Court should demonstrate deference to the state legislature’s enactment of the law.[66] Third and finally, the State asserted that legislative history surrounding the establishment of the Fourteenth Amendment did not support an intention to make state miscegenation laws unconstitutional.[67]

The Supreme Court agreed that the regulation of marriage was subject to the police power of the states,[68] but then emphasized that the statutes would be held to something more than just rational basis scrutiny because equal application of a statute that nonetheless contained racial classification was not enough to put the statute beyond the reach of the “Fourteenth Amendment’s proscription of all invidious racial discriminations” and the “very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.”[69]

The Court went on to discount the State’s “legitimate purposes” calling them an obvious “endorsement of the doctrine of White Supremacy,”[70] and held that there was no “legitimate overriding purpose independent of invidious racial discrimination which justifie[d] [the statute’s racial classification]” stating that the Court “consistently denied the constitutionality of measures which restrict the rights of citizens on account of race” and that “restricting the freedom to marry solely because of racial classifications violates the central [purpose] of the Equal Protection Clause . . . to eliminate all official state sources of invidious racial discrimination in the States.”[71] Finally, the Court deemed the legislative history inconclusive, thereby refusing the State’s appeal to grant deference to the legislature’s purposes in enacting the statutes.[72]

C.     Due Process and the Deprivation of the Freedom to Marry

The Court held that in addition to the violations of the equal protection clause of the Fourteenth Amendment, above, the statutes were a deprivation of liberty without due process of law, and thus violated the Due Process Clause of the Fourteenth Amendment.[73] The Court declared that heterosexual marriage was “one of the ‘basic civil rights of man’ fundamental to our very existence and survival.”[74] Such a basic right could not be limited by racial classifications because the “Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.”[75] Ultimately, the Court ordered the convictions reversed,[76] thereby ending the troubling history of anti-miscegenation statutes in the United States.

IV.             Analysis

First, the Supreme Court examined the miscegenation statutes struck in Loving under a form of strict scrutiny.  The state would have to show evidence that they had a compelling interest prohibiting interracial marriages and then show that the regulation in question was narrowly tailored to meet that specific purpose.  In contrast, gender discrimination has historically received intermediate scrutiny from the court.  Some accept this to mean that a regulation that allows a man to marry a woman but forbids a woman from marrying a woman would just have to closely meet an important interest asserted by the state.  However, sexual preference is not equivalent to race or to gender because it is not a readily identifiable and unchangeable characteristic that is an outward manifestation of a genetic pairing of DNA that has resulted in a long history of discrimination.  To the contrary, sexual preference is primarily a behavior and cannot be a suspect classification.  Thus state regulations of marriage that discriminate on the basis of sexual preference are most appropriately subject only to rational basis scrutiny.

Second, the statutes examined in Loving were a plain attempt to support White Supremacy and maintain a hierarchical social status with Caucasians at the top of the pecking order and African Americans relegated to the bottom.  The state’s self-asserted purpose in prohibiting interracial marriages was to prevent offspring from relationships between people with “white” skin and other “races”—most often meaning people with a different color skin—leading to a dilution of the races because of the intermingled blood.[77] In contrast, state constitutions and statutes that limit marriage to inter-gender relationships do not exist to create or enforce a stratification of society with heterosexual couples at the top of the pecking order and homosexual couples relegated to the bottom.  Rather, the regulation is of a legal relationship with the potential to produce offspring—a relationship which the state has the right to regulate and in which the state has at least a legitimate interest in regulating.  Additionally, unlike interracial marriages that were prohibited in Loving, same sex marriages and relationships pose actual health risks to those in the relationship as well as to society at large.

Third, miscegenation is simply not the same thing as same-sex marriage.  Nowhere in its opinion does the Loving Court approve of an undisciplined expansion of the definition of marriage to include any mix of partners who love each other and want to formalize their relationship as a legally recognized marriage.  Loving was nothing more nor less than what was necessary to ensure that marriage as a union between a male and a female human being was a legal institution that would be accessible to and between members of all races, regardless of skin color.  There are inherent differences between race and sexual preference that cannot be overcome in a failed attempt to justify the analogy between invidious racial discrimination and licensure of same-sex marriage.   

A.     Court’s Lens: Strict, Intermediate or Rational Basis Scrutiny

In examining state actions that result in arbitrary and invidious discrimination as to race,[78] the Court has accepted that discrimination based on race is suspect, and thus applies a strict scrutiny standard.[79] In contrast, the Court has viewed gender discrimination as only a quasi-suspect action, and though the Court has rejected the rational basis scrutiny for quasi-suspect government actions,[80] it has not gone so far as to examine those actions under strict scrutiny.[81] Thus, gender discrimination is generally subject to a form of intermediate scrutiny requiring that the government regulation be substantially related to an important objective as demonstrated by some evidentiary showing on the record.[82] In contrast, many cases examining the same-sex marriage issue—particularly the early cases immediately following Loving—subjected the state actions to only rational basis scrutiny, though some more recent courts have improperly subjected classifications based on sexual preferences to an intermediate or even a strict scrutiny standard.[83]

Race, originally thought rooted in biology, is now understood to be much more a social construct than anything else.[84] Unfortunately, race and the concepts surrounding the definition of that word have frequently been manipulated by those who would use it to justify the exploitation of and/or discrimination against others.[85] “There [is] hardly . . . a subject more likely to involve prejudice than that of race.  Unlike religious, political, or social ideas, human differences which we have elected to call racial differences are a part of our physical endowment which we are born with and cannot change.”[86] Because the long history of racial discrimination is based on manifestations of elements of our genetic code which are readily identifiable, over which we have no control, and which we cannot change, it is the most invidious of prejudices and any government act based primarily on racial classification must be regarded as highly suspect and shown to be absolutely necessary in accomplishing a compelling government interest.  Arguably, gender discrimination, which is also based on physical characteristics which we cannot change, should also be subject to the highest level of scrutiny; however, even it is still generally subjected to only intermediate scrutiny.

In contrast, sexual preferences are not part of our genetic make-up that cannot be changed.  Though multiple studies have examined the genetic nature of homosexuality, “[t]he factors contributing to an individual’s same-sex sexual orientation or sexual preference remain poorly understood”[87] and “no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor.”[88] Ultimately, “[t]he idea of finding a single gene that could orchestrate something as complex as behavior . . . is probably not realistic.”[89]

It is more likely that any identifiable genetic factors contributing to an individual’s sexual preference may be similar to medical conditions or behavioral tendencies such as alcoholism, diabetes, or depression that are linked to genetic indicators rather than a single gene or set of genes.[90] Like alcoholism, any identifiable genetic factors contributing to homosexual preferences are likely “sensitive to the effects of environmental influences,” and though genetics may contribute to the tendency towards certain behaviors, it would likely “explain only a small portion of the vulnerability.”[91] The strongest evidence we have regarding genetic factors that contribute to homosexuality is not conclusive in either direction,[92] but if there are any determinative genetic factors, they likely lead only to tendencies, and there are multiple other factors,[93] including an element of choice, leading to the ultimate behavior.

Holding classifications based on behavior, regardless of some genetic ties to tendencies for that behavior, to the higher standard of strict scrutiny is inappropriate, particularly considering that gender, which is more like the physical characteristics that lead us to categorize individuals according to race than sexual preference, does not receive this higher level of scrutiny.  Additioanlly, it could open the door to others with genetic tendencies towards certain behaviors to claim a violation of their constitutional rights based on the “suspect classification” of a particular behavior.

Thus courts should follow early precedent in the matter and subject marriage laws that make classifications on the basis of sexual preference to rational basis scrutiny.  At most, classifications on the basis of sexual preference may be analogized to gender discrimination in which case an intermediate scrutiny may be applied.  However, applying strict scrutiny to these laws is improper.  Thus, even under intermediate scrutiny, in order to maintain legal marriage as a union between one man and one woman, the most the State need demonstrate is that the statute or regulation in question is substantially related to an important government interest.[94]

B.     State Interests: Arbitrary and Invidious Racial Discrimination v. Safety, Welfare, and Morals of Society

Where the Court “[could not] conceive of a valid legislative purpose making the color of a person’s skin the test of whether his conduct [should not be allowed],”[95] there are conceivably many important legislative objectives substantially related to the regulation of marriage between same-sex couples.  Unlike the miscegenation statutes invalidated by Loving, the state interests in maintaining marriage as a union between one man and one woman are not merely “arbitrary and invidious . . . discrimination.”[96] In maintaining traditional marriage, states are not asserting discriminatory tactics to establish, assert, and maintain the superiority of heterosexual relationships. Rather, the state interests lie generally in preserving families as the most fundamental unit of society.  More specifically, this broadly-stated legislative purpose encompasses several separate state interests.[97] These include the interests to maintain marriage as the union that is most likely to produce offspring and that will likely provide the healthiest psychological and emotional environment for the subsequent rearing of children and thus the perpetuation of society; the often-asserted interest in maintaining marriage as the union that aligns most readily with our nation’s history and moral traditions; and a number of additional interests including maintaining uniformity among the states, and regulating behavior that affects the health, safety, and welfare of state citizens.

1.      Marriage as the union most likely to produce offspring

“Marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.”[98] In reasoning thus, the Singer court pointed out the obvious—biologically, same-sex couples are not able to procreate.  While it is true that many heterosexual marriages do not produce offspring either by choice or because of physical limitations, overwhelmingly most married couples have children and most children are conceived through natural procreative processes rather than through medical intervention.  There are exceptions to these generalities, but exceptions to a general rule do not warrant a change in the core definition of a long-time legal institution designed to create and foster family life.

Though previous courts have accepted procreation as an acceptable state interest in reserving marriage for heterosexual couples,[99] some more contemporary courts have rejected this interest claiming that advances in medical technology have eroded the connections between the laws and the government interest.[100] However, an Arizona appellate court accepted the state’s interest in “encouraging procreation . . . within the stable environment traditionally associated with marriage.”[101] The court went so far in that instance as to state that “sanctioning same-sex marriages would do little to advance the State’s interest in ensuring responsible procreation within committed, long-term relationships.”[102] Thus, the debate remains unsettled.  Moreover, this interest is clearly distinguishable from the arbitrary and invidious racial discrimination asserted as the state interest in Loving. Loving stood for the opportunity for individuals to elect to enter into a heterosexual marriage and thus have the state sanction the establishment of the family and subsequent children.  Clearly, heterosexual couples are the only couples with the potential to naturally procreate and states have a strong interest in regulating the creation and dissolution of familial relationships.  Unlike the unfettered invidious discrimination in Loving, this interest is at least sufficient to meet rational basis scrutiny and is likely significant enough to meet intermediate scrutiny.

2.      Providing an optimum environment for rearing children

Unlike the invidiously discriminatory purposes given for the anti-miscegenation statutes in Loving, states have a real and significant interest in providing the optimum environment in which to rear children.  Though many single parents have successfully raised children, research shows that the best possible environment for rearing children is in a stable family with both a mother and a father.[103]

The burden of social science evidence supports the idea that gender-differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable. . . .   [M]ale and female parenting styles [are] of enormous importance to a child’s overall development.  It is sometimes said that fathers express more concern for the child’s longer-term development, while mothers focus on the child’s immediate well-being . . . .  What is clear is that children have dual needs that must be met: one for independence and the other for relatedness, one for challenge and the other for support.[104]

Earlier courts examining this issue immediately after Loving recognized the state interest in encouraging the propagation of the society as a sufficient interest with little question.[105] Contemporarily, however, when asserting this significant state interest, states have failed to marshal the evidence persuasively enough and modern courts have been too willing to dismiss the interest with little more than a cursory thought.  For example, when Hawaii asserted this interest in support of its marriage laws, the court held that the interest failed scrutiny not because it was insignificant, but because the state did not provide evidentiary support for the interest.[106] The Vermont Supreme Court also held that this state-asserted interest failed scrutiny.[107] Nevertheless, the court did not reason that a state interest in providing an optimum environment for rearing children was insignificant; rather, the court reasoned that because the state recognized same-sex partners as parents it was disingenuous to assert a state interest in providing a home for children with parents of both genders.[108] Additionally, the Massachusetts Supreme Court would not recognize a valid state interest in ensuring children are raised by opposite-gender parents because the state already recognized adoption by same-sex couples, and the court believed that allowing such couples to marry would actually be beneficial to the children already in their homes.[109]

Again, this valid state interest is not recognized by courts as the arbitrary and invidious racial discrimination of Loving. If states are careful to marshal and present the considerable research supporting this assertion as a valid state interest, they may still persuade courts that the interest in maintaining marriage as a union between a man and a woman to encourage the optimum environment for having and rearing children is real and significant.  Unlike the arbitrary and invidiously discriminatory interests expressed in Loving, the state interest here is one that falls squarely within the states’ power to regulate and is one in which the states have valid and significant interests in regulating.

3.      Alignment with moral traditions and history

Preservation of traditions and history provide an important state interest in the case of same-sex marriage.  Unlike the prejudicial and invidiously discriminatory history of the anti-miscegenation statutes in Loving, the history and tradition of heterosexual marriage does not lie in the oppression of any group of people, but rather the logical method through which to ensure propagation and survival of our species and societies.  Where upholding the history and traditions in Loving would have served only to perpetuate the invidious racial discrimination at issue in that case, recognizing and upholding the tradition and history surrounding marriage as being between one man and one woman is an interest that would provide for the perpetuation and survival of humankind.  Here as with the other interests, the early decisions readily accepted history and tradition as valid interests of the state,[110] but contemporary decisions tend to treat the issue summarily, never addressing the substance.[111] Moreover, in the most recent U.S. Supreme Court case scrutinizing laws punishing sodomy as a criminal offense, there are hints that history and tradition form at least a legitimate state interest.[112] This is clearly an interest that is distinguishable from the state interests asserted in Loving.

4.      Other interests

These three main interests have been augmented by additional interests including an interest in promoting uniformity among the states,[113] and an interest in curbing homosexual behavior.[114] Professor Duncan suggests additional interests that may arise in future cases including an interest in assuring the well-being of children, an interest in “bridg[ing] the difference between the sexes on a footing of equality for both,” an interest in providing training and attributes for new generations to uphold the democracy, and other prudential concerns in the areas of conscientious objections, public education, and interstate conflicts.[115] All of these interests fall within the states’ authority to regulate and none are evidence of the arbitrary or invidious racial discrimination that led the Court to invalidate anti-miscegenation statutes in Loving.

Significantly, contemporary marriage laws have most often failed not because the asserted interest was not strong enough, but because the court felt that the law did not fit the asserted purpose well enough.  This indicates that at least some of these interests will likely pass constitutional scrutiny if state legislatures can tailor the law well enough to meet the asserted interests.  Certainly, they are not the equivalent of the blatant arbitrary and invidious racial discrimination manifest in the Loving statutes.

C.     Other Distinguishing Factors: A Closer Look at Biology, Health, and Sociology in Miscegenation v. Same-sex Relationships

The differences between the appropriate level of constitutional scrutiny and the asserted state interests in Loving compared to the state interests in maintaining traditional marriage and the scrutiny that should be applied, illustrate significant failures of the attempted analogy.  The remaining distinguishing factors can be summed up generally and perhaps too obviously—miscegenation is simply not the same as same-sex marriage.  Biologically, marriage between a man and a woman, regardless of their “race,” produces children, homosexual relationships do not.  Medically, monogamous marriages between one man and one woman, regardless of their “race,” promotes the sexual health and well-being of individuals and society; homosexual relationships do not.  Socially, successful marriages between a man and a woman, regardless of “race,” are more outward-looking, sacrifice-based relationships, as opposed to the self-interested, sexually-indulgent relationships between members of the same sex, because heterosexual marriage affords the eventual possibility of children and the accompanying responsibilities associated in rearing those children.  Each of these areas distinguishes same-sex marriage from miscegenation and thus contributes to the failure of the attempt to apply Loving to the contemporary debate on same-sex marriage.

1.      Biological differences

Loving invalidated statutes that prohibited interracial couples from marrying but did not open the way to fundamentally change the definition of marriage such as to allow same-sex couples to marry.  Anti-miscegenation statutes withheld the right of a woman who fell under one racial classification to marry a man who fell under a different racial classification.  The Court states that this marriage—heterosexual marriage—is “fundamental to our very existence and survival.”[116] Using the collective “our” the language indicates that the Court was referring to the collective existence and survival of humankind, our society, and our culture.  Marriages post-Loving were still only between one man and one woman and provided means through which children could be conceived, born, and reared.  There is no chance that two men or two women will ever produce children naturally thereby ensuring “our existence and survival.”  Thus, the invalidation of anti-miscegenation statutes was ensuring the fundamental right to be married—meaning to create a life-long union between one man and one woman—to whole classifications of people from whom that right had been withheld.  In the case of same-sex marriage, there has been no withholding of any fundamental right.  The “fundamental right,” “basic civil right,” and “vital personal right[] essential to the orderly pursuit of happiness”[117] discussed in Loving are all in reference to marriage as between a man and a woman.

Proponents of same-sex marriage assert that that the clear biological difference between heterosexual marriages and homosexual relationships are of little consequence—that marriage in title is a fundamental right regardless of the biology involved.  This argument is supported by assertions that many heterosexual marriages do not produce children due to choice or natural infertility and that some homosexual marriages do produce children through medically assisted means.  Though both statements are true at a basic level, it is worth noting that almost all children in the Unites States are conceived and born as the result of heterosexual relationships.  Because of relatively recent advances in medical technology, women may conceive and have children through assisted reproductive technology (ART), but as of 1998, only 0.7% of 3.9 million births in the Unites States resulted from ART.[118] By early 2009 that percentage had climbed to just over 1%,[119] but even so, the majority of ART procedures are assisting heterosexual couples to overcome naturally occurring infertility problems.[120] Additionally, recent research suggests that the propensity for birth defects is higher in children conceived through ART than through natural means,[121] suggesting that drastically increased use of ART could threaten the overall health of the species.  Biologically, marriages between men and women have the chance to produce offspring.  Same-sex marriage does not, and the medical technology that provides an opportunity for women—and only for women—in a same-sex relationship to “conceive” and give birth to children is not a natural result of the relationship but is an artificial substitute for what same-sex couples simply could never accomplish naturally.

2.      Medical concerns

Assuring that interracial couples had the right to marry encourages sexual health and well-being where same-sex relationships overall detract from sexual health and well-being for individuals specifically and for society generally.  Overall, adults in heterosexual marriages are healthier than those in other sexual relationships.[122] They are less likely than adults who are divorced, widowed, or in cohabiting relationships to be in fair to poor health, less likely to suffer from headaches or serious psychological distress, less likely to smoke or engage in other risky behavior such as heavy drinking or physical inactivity.[123] In contrast, homosexual relationships have consistently led to serious health concerns.  Male homosexual behavior accounted for over seventy percent of all cases of AIDS in the United States through 2004.[124] A study of an urban center in Canada indicated that the life expectancy for homosexual males had declined to the point that it was similar to the life expectancy for men in the 1800s.[125] Homosexual behavior in men also results in anal cancer at a rate ten times that of heterosexual males, damage to sphincter tissue resulting in incontinence, anal fissures, and multiple other health risks including an elevated risk of cancer when compared to the general population.[126] Homosexual women suffer from higher rates of hepatitis B and C and bacterial vaginosis and engage more frequently in higher risk behaviors such as smoking, drug use, and alcohol abuse than heterosexual women.[127]

In addition to the risks of decreased physical health, homosexual relationships tend to be less monogamous than heterosexual marriages, likely leading to increased instances of depression and other mental and emotional disturbances.  One report indicates that ninety-four percent of married couples had only one sexual partner over the course of the one-year study.[128] In contrast, less than five percent of homosexual couples who had been in an “exclusive” partnership for at least one year had been monogamous.[129] All of those monogamous homosexual relationships had been established for five years or less, indicating that even a “committed” relationship between homosexual partners tends not to be long-lasting thereby increasing the risk of the spread of disease and of mental and emotional difficulties.  Even among “married” homosexual partners in The Netherlands, the rate of infidelity is substantial with a mean of eight Sexual partners per year outside of the “marriage.”[130] This is very likely a factor that contributes to the average length of homosexual “marriages” in that country—a mere eighteen months.[131]

Where Loving sought to promote access to legal recognition of a familial relationship that would increase individuals’ overall health and well-being and thereby increase the overall health and well-being of society, allowing homosexuals to marry would likely lead to an increase in the accompanying physical and emotional risks that seriously impede the health and well-being of individuals, thus eroding the overall health and well-being of society.

3.      Social disparities

Ensuring individuals’ right to marry interracially did nothing to change the fundamentally unselfish nature required for lifelong relationships aimed at producing and rearing children.  However, a common response to proponents of heterosexual marriage is that same-sex marriage won’t hurt anyone outside of the relationship, but will provide a large measure of self-fulfillment for those within the relationship.[132] This self-serving interest is a sharp contrast to the selfless, sacrificial nature required for a successful marriage,[133] and is another distinct difference between miscegenation and same-sex marriage.  This self-fulfillment argument in support of the legalization of same-sex marriage strikes at the very heart of what marriage has always required—selflessness and sacrifice, not selfishness and indulgence.  Though it may not have immediate measureable effects on individuals in traditional marriages, overtime, the effects of same sex marriage would be evident in the erosion of social identity, gender development, and the endorsement and protection of behavior motivated by little more than desires for self-fulfillment.

V.                Conclusion

Though Loving was a landmark case that properly invalidated U.S. miscegenation laws that until then criminalized interracial marriage, it cannot be properly extended to broaden the fundamental definition of marriage to include unions between members of the same sex.  The Loving court properly analyzed the statutes in question under strict scrutiny because of the highly suspect racial classifications in the statute.  Since the enactment of the Fourteenth Amendment, and particularly since the civil rights movement, government actions resulting in invidious racial discrimination have consistently been subjected to strict scrutiny when examining the constitutionality of such actions.  However, government actions resulting in discrimination based on gender are generally held to an intermediate scrutiny standard at best.

Classifications and regulations based on behavioral choices are quasi-suspect at most.  They are most appropriately analyzed under the rational basis scrutiny applied in the earliest same-sex marriage cases and should not be afforded more than some form of intermediate scrutiny.  Certainly, the strict scrutiny of Loving should not apply.

The asserted state interest in Loving—preventing offspring from relationships between people with “white” skin and people with a different color skin leading to a dilution of the races because of the “intermingled blood”—was clearly invidious racial discrimination and an attempt to maintain white supremacy.  In contrast, regulation of marriage as being between one man and one woman is permissible under the Constitution and the Loving decision because of the clear distinctions between race as an immediately identifiable and unchangeable manifestation of genetic pairings in a person’s DNA, and the non-apparent and often variable tendencies leading towards sexual preferences.

Additionally, state interests in maintaining marriage as a union between a man and a woman are not arbitrary invidious discrimination of any sort.  State constitutions and statutes that limit marriage to a relationship between one man and one woman do not exist to create or enforce a stratification of society with heterosexuals enjoying some higher rank and status than homosexuals.  Rather, states have significant interests in procreation and in providing an optimum environment for rearing children, thus protecting and acting in the best interest of the child.  Additionally, states have significant interests in maintaining the historical and traditional definition of marriage.  It is important to note that these interests have been treated variably in different state courts, but most often statutes have failed not because the interest was wholly insufficient, but because the state failed to effectively marshal the evidence showing its significant interest, and because the law was poorly tailored to meet the asserted state interest.

Overall, same-sex marriage is simply not the same as miscegenation.  Interracial marriages are still between a man and a woman.  Only heterosexual marriages have the potential to produce children and to impart the accompanying life-long responsibilities of the parents to children and to each other.  Additionally, traditional marriage promotes the health and well-being of individuals.  It also encourages the socially desirable virtues of sacrifice, service, and selflessness.  These characteristics of marriage remain consistent as long as the marriage is between members of the opposite sex regardless of their racial classifications.  On the other hand, same-sex marriage is a fundamental redefinition of marriage that is not supported by the holding or any of the reasoning in Loving. Same-sex relationships cannot produce children except through artificial medical assistance.  Even then, only women can conceive and bear children, and studies show that such medical assistance increases the risk for children to have birth defects.  A propagation of relationships taking advantage of such techniques may eventually pose a substantial threat to the overall well-being of society.  Moreover, same-sex relationships result in a litany of increased health risks and increased high-risk behaviors which negatively impact the health and well-being of the individuals in the relationship.  Furthermore, same-sex relationships tend not to be monogamous and so the health risks spread quickly, becoming a threat to society at large.  Additionally, the mental and emotional well-being of individuals in such relationships is threatened by the comparatively low levels of fidelity.  Finally, same-sex marriages undermine the desirable social values of sacrifice, fidelity, and selflessness: rather, they encourage self-fulfillment and indulgence.

Loving does not stand for an unmanageable broadening of the legal definition of marriage to embrace any combination of partners who love each other and who want a legal sanction of their union under the time-honored official endorsement of marriage.  Rather, it was needed to ensure that members of all races could engage in traditional marriage, specifically a union involving members of the opposite sex.  Continued attempts to encourage the Court to apply the Loving standard to the same-sex marriage debate are misguided because Loving and the issue of miscegenation is wholly distinguishable from the same-sex marriage debate.

---

[1] 388 U.S. 1 (1967).

[2] Id. at 12.

[3] Baker v. Nelson, 191 N.W. 2d 185 (Minn. 1971).

[4] Baker v. Nelson, 409 U.S. 810 (1972) (No. 71-1027).

[5] See e.g., Evan Wolfson, Why Marriage Matters 59 (2004) (asserting that the battle for same sex marriage is another step in the battle for civil rights); Mark Strasser, Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees, 33 Loy. U. Chi. L.J. 587 (2002); Cass Sunstein, Liberty After Lawrence, 65 Ohio L.J. 1059 (2004); Vincent J. Samar, The Case for Treating Same-Sex Marriage as a Human Right and the Harm of Denying Human Dignity, What’s the Harm, 239 (Lynn Wardle ed. 2008); Gloria Bluestone, Going to the Chapel and We’re Going to Get Married; But Will the State Recognize the Marriage? The Constitutionality of State Marriage Laws After Lawrence v. Texas, 10 Texas  J. Civ. Liberties & Civ. Rights 190 (2004-2005).

[6] Loving, 388 U.S. at 7 (quoting Naim v. Naim, 87 S.E. 2d 749, 756 (Va. 1955)).

[7] Encarta Dictionary, available at http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx? lextype=3&search=miscegenation.

[8] Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 Geo. L.J. 49, 50 (1964-1965).

[9] Id. at n. 9.

[10] Alabama Statutes (1852): Art. I, sec. 1956, cited in Julie Novkov, Racial Constriction: The Legal Regulation of Miscegenation in Alabama, 1890–1934, 20 L. & History Rev. 225–77,  231 (2002).

[11] Novkov, supra note 10, at 226.

[12] Id.

[13] Id.; see also Loving v. Virginia, 388 U.S. 1, 7.

[14] See eg., Green v. State, 58 Ala. 190 (Ala. 1877).

[15]See Jackson v. State, 72 So.2d 114 (Ala. App. 1954), cert. denied, 72 So.2d 116 (Ala. 1954), cert. denied, 348 U.S. 888 (1954) (No. 118, MISC); Naim v. Naim, 87 S.E.2d 749 (Va. 1955), vacated, 350 U.S. 891 (1955), aff’d, 90 S.E.2d 849 (Va. 1956), appeal dismissed, 350 U.S. 985 (1956).

[16] 347 U.S. 483 (1954).

[17] 347 U.S. 497 (1954).

[18] Jackson, 72 So.2d at 115.

[19] Id. at 114 (citing Ellis v. State, 42 Ala. 525 ( 1868)).

[20] Burns v. State, 48 Ala. 195 (1872), cited in Green v. State, 58 Ala. 190 (1877).

[21] Green, 58 Ala. at 5-6.

[22] 106 U.S. 583, 585 (1883) (holding that a statute providing equal punishments for offenders whether they are white or black is constitutional regardless of any racial classifications in the statute).

[23] Wilson v. State, 101 So. 417 (Ala. 1924), cert. denied, 101 So. 423 (Ala. 1924).

[24] Jackson v. State, 72 So.2d 116 (Ala. 1954).

[25] Jackson v. Alabama, 348 U.S. 888 (1954) (No. 118, MISC).

[26] 87 S.E.2d 749 (1955).

[27] Id. at 756.

[28] Naim v. Naim, 350 U.S. 891, 891 (1955).

[29] Naim v. Naim, 90 S.E.2d 849, 849 (Va. 1956).

[30] Naim v. Naim, 350 U.S. 985, 985 (1956).

[31] See generally Thomas A. Dowson, Archaeologists, Feminists, and Queers: Sexual Politics in the Construction of the Past, in Feminist Anthropology: Past Present, and Future 89 (Pamela L. Geller and Miranda K. Stockett eds. 2006); David Cohen, Law, Sexuality, and Society: The Enforcement of Morals in Classical Athens, (2004); William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment, 15-50 (1996); William A. Percy III, Pederasty and Pedagogy in Archaic Greece (1996).

[32] Louis Crompton, Homosexuals and the Death Penalty in Colonial America, 1 J. Homosexuality 277, 277–79 (1976).

[33] Id. at 280 (quoting “An Act for the Punishment of Buggery”).

[34] See, e.g., Eskridge, supra note 31 at 44 (equivocating the Stonewall events with the “lunch counter sit-ins” of the civil rights movement in terms of the impact the riots had on uniting and encouraging the homosexual community to become public and assert their rights).

[35] Id.

[36] See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).

[37] See Anonymous v. Anonymous, 325 N.Y.S.2d 499 (1971).

[38] See Adams v. Howerton, 673 F.2d 1036 (9^th Cir. 1982).

[39] See id. at 1036; Baker, 191 N.W.2d at 185 ; Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974);

[40] See e.g., Adams, 673 F.2d at 1040 (“The term ‘marriage’ ordinarily contemplates a relationship between a man and a woman.”); Baker, 191 N.W.2d at 185–86 (“Minn.St. c. 517, which governs ‘marriage,‘ employs that term as one of common usage, meaning the state of union between persons of the opposite sex.  It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense.”); Jones 501 S.W.2d at 589 (“The sections of Kentucky statutes relating to marriage do not include a definition of that term. It must therefore be defined according to common usage. . . .  ‘A state of being . . . united to a person or persons of the opposite sex as husband or wife . . . .’  ‘The legal union of a man with a woman . . . .’  ‘The civil status, condition or relation of one man and one woman united in law for life . . . .’”)(citations omitted); Singer, 522 P.2d at 1191 (“The operative distinction lies in the relationship which is described by the term ‘marriage’ itself, and that relationship is the legal union of one man and one woman.”).

[41] Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI (Alaska Super. Ct. Feb 27, 1998).

[42] Baker v. Vermont, 744 A.2d 864 (Vt. 1999); In re Marriage Cases, 183 P.3d 384, 397 (Cal. 2008).

[43] Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009).

[44] See, e.g., Marriage Cases, 183 P.3d at 423 (quoting Zablocki v. Redhail, 434 U.S. 374 (1978) (“It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. . . .  [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society”)); Maynard v. Hill  125 U.S. 190 (1888) (“[Marriage] is the foundation of the family and of society, without which there would be neither civilization nor progress.”); Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 843(1977) (describing marriage as “[t]he basic foundation of the family in our society”).

[45] National Conference of State Legislatures, Same Sex Marriage, Civil Unions and Domestic Partnerships, http://www.ncsl.org/IssuesResearch/HumanServices/SameSexMarriage/tabid/16430/Default.aspx (Oct. 2009).

[46] Id.

[47] Elizabeth Gorman, D.C. Council Votes to Allow Same-Sex Marriage, Mayor Fenty to Sign, ABC News, Dec. 15, 2009 available at http://abcnews.go.com/Politics/gay-marriage-poised-approval-nations-capital/story?id=9344029.

[48] National Conference of State Legislatures, supra note 45.

[49] Id.

[50] Id.

[51] Id.

[52] Loving v. Virginia, 388 U.S. 1, 3 (1967).

[53] Id. The statutes in question were found in sections 20-58 and 20-59 of the Virginia Code and stated:

If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to it and reside in if, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same laws as if it had been solemnized in this State.  The fact of their cohabitation here as man and wife shall be evidence of their marriage. . . .  If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.

Va. Code Ann.  §§ 20-58–20-59 (1960 Repl. Vol.), quoted in Loving, 388 U.S. at 4.

Other applicable statutes included section 20-57, a provision that automatically voided interracial marriages “without decree of divorce or other legal process” and sections 20-54 and 1-14, which provided definitions for “white persons” and “colored persons” for the purposes of statutory interpretation.  Va. Code Ann. §§1-14, 20-54, 20-57 (1960 Rel. Vol.), quoted in Loving, 388 U.S. at 5.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Id. at 3–4.

[62] Id. at 4.

[63] Id. at 7.

[64] Id. at 8.

[65] Id. at 7 (quoting Naim v. Naim, 87 S.E. 2d 749, 756 (Va. App. Ct. 1955).

[66] Id.

[67] Id.

[68] Id. at 7 (citing Maynard v. Hill, 125 U.S. 190 (1888)).

[69] Id. at 9.  The Court cites Brown v. Board of Education, 347 U.S. 483, 489 (1954); Strauder v. West Virginia, 100 U.S. 303, 310 (1880); and McLaughlin v. State of Florida, 379 U.S. 184, 85 (1964) as it summarily rejects the State’s two primary arguments regarding the level of scrutiny that applies in this case: First, that legislative history indicates that the framers of the Fourteenth Amendment never intended to make miscegenation laws unconstitutional,  and second, that the State’s creation of a penal law based on racial classifications but providing similar punishment for the classified races places a thumb on the scale in favor of constitutionality.  Loving, 388 U.S. at 9–10.

[70] Id. at 7.

[71] Id. at 10, 12 (citing Slaughter-House Cases, 16 Wall. 36, 71 (1873); Strauder v. West Virginia, 100 U.S. 303, 307-08 (1880); Ex parte Virginia, 100 U.S. 339 (1880); Shelley v. Kraemer, 334 U.S. 1, (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)).

[72] Id. at 9–10.

[73] Id. at 12.

[74] Id. at 12 (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).

[75] Id.

[76] Id.

[77] Id. at 7 (quoting Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955).

[78] An actual definition for “race” is problematic and its use carries varied meaning and inspires varied emotions.  However, the use here relates to the social and political ideas leading to the propagation and enforcement of racial inequalities in the United States.  See Michael Omi and Howard Winchant, Racial Formation in the United States from the 1960s to the 1990s (1994), cited in Novkov, supra note 10 at 226 n.3.

[79] City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (“[The Court] appl[ies] strict scrutiny to all racial classifications to ‘smoke out’ illegitimate uses of race by assuring that government is pursuing a goal important enough to warrant use of a highly suspect tool.”).

[80] See, e.g., Reed v. Reed, 404 U.S. 71, 75 (1971) (rejecting the rational basis scrutiny when examining the preferential choice of men over women as estate administrators).

[81] See, e.g., Miss Univ. for Women v. Hogan, 458 U.S. 718, 723–24 (1982).  But see Frontiero v. Richardson, 411 U.S. 677, 690–91 (1973) (using a strict scrutiny standard to strike a federal law that accepted the dependency of wives on male soldiers more readily than dependency of husbands on female soldiers and indicating that gender discrimination may be a suspect category of regulation).

[82] Miss Univ. for Women, 458 U.S. at 724.

[83] See, e.g., Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974); Adams v. Howerton, 673 F.2d 1036 (9^th Cir. 1982); Baker v. Vermont, 744 A.2d 864 (Vt. 1999).  But see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (applying a higher form of scrutiny but holding that the state had not met the burden of proving the interest asserted was actually related to the law in question); In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (holding that California statutes limited marriage to a union between one man and one woman were subject to strict scrutiny because denying same-sex couples access to marriage has the constitutionally suspect effect of impinging on the individual rights of such couples to enjoy respect and dignity equal to that of heterosexual couples).

[84] Thomas F. Gossett, Race: The History of an idea in America, 409 (1963).

[85] Id.

[86] Id. (emphasis added).

[87] Jane P. Sheldon et al., Beliefs About the Etiology of Homosexuality and About the Ramification of Discovering Its Possible Genetic Origin, 52 J. Homosexuality 111, 113 (2007) (comparing varied public opinions regarding the origins of homosexuality and examining the benefits and dangers of connecting homosexuality with genetic origins).

[88] American Psychological Association, Answers to Your Questions for a Better Understanding of Sexual Orientation & Homosexuality, 2 (2009), available at www.apa.org/topics/sexuality/sorientation.pdf [hereinafter APA]

[89] Sanders, infra note 92.

[90] See Marc A Schuckit, An Overview of Genetic Influence in Alcoholism, 36 J. Substance Abuse Treatment  S5 (2009) for a discussion of the “complex genetically influenced disorder” of alcoholism including a discussion of the interplay between genetic factors, environment, and personal experience.

[91] Id. at S5.  Keep in mind, Schuckit’s article is addressed only to the genetic nature of alcoholism.  I assert that genetic tendencies towards homosexuality could be similar to those contributing to vulnerability for other behaviors.

[92] APA, supra note 88 at 2 (“There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation.”); see also Alain Sanders, Gay-Gene Theory Gets a Slap in the Face, Time, April 23, 1999 available at http://www.time.com/time/magazine/article/0,9171,23504,00.html; Nicholas D. Kristof, Lovers Under the Skin, New York Times, Dec. 3, 2003 at A31.

[93] APA, supra note 88 at 2 (“Although much research has examined the possible . . . influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors.  Many think that nature and nurture both play complex roles.”).

[94] It is worth noting that some have asserted that the same-sex marriage question must be afforded strict scrutiny basing that assumption at least in part on the decision in Lawrence v. Texas that relied on the constitutional right of privacy to reach the strict scrutiny standard.  539 U.S. 558 (2003).  Lawrence was a decision about sexual behaviors in the “privacy of your own home,” an issue which is completely unique from the public recognition of a legally sanctioned relationship.  Lawrence did not grant any court or individual the moral freedom to fundamentally change the legal definition of marriage.

[95] Loving v. Virginia, 388 U.S. 1, 11 (1967) (quoting McLaughlin v. Florida, 379 U.S. 184, 292 (1964)).

[96] Id. at 10.

[97] See generally William C. Duncan, The State Interests in Marriage, 2 Ave Maria L.Rev. 153 (2004) (discussing in depth each of the asserted state interests and whether they are legitimate interests that could survive constitutional scrutiny by the Court—most of the analysis and references in this section are taken from Professor Duncan’s well-researched analysis of state interests in marriage cases).

[98] Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974), quoted in Duncan, supra note 97 at 155.

[99] See, e.g., Singer, 522 P.2d; Adams v. Howerton, 673 F.2d 1036, 1043 (9th Cir. 1982).

[100] See, e.g., Baker v. Vermont, 744 A.2d 864, 881 (Vt. 1999); Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003).

[101] Standhardt v. Superior Court, 77 P.3d 451, 461 (Ariz Ct. App. 2003), quoted in Duncan, supra note 97 at 157.

[102] Stanhardt, 77 P.3d at 462, quoted in Duncan, supra note 97 at 158.

[103] See, e.g., David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem (1995); Barbara Schneider, Allison Atteberry, & Ann Owens, Family Matters: Family Structure and Child Outcomes (Alabama Policy Institute: 2005); David Popenoe, Life Without Father (1996); David Popenoe & Barbara Defoe Whitehead, The State of Our Unions 2007: The Social Health of Marriage in America, 21-25 (2007 ); Maggie Gallagher & Joshua K. Baker, Do Moms and Dads Matter? Evidence from the Social Sciences on Family Structure and the Best Interests of the Child, Margins 4 L.J. 161 (2004).

[104] Life Without Father, supra note 103 at 145-146; see also A. Dean Byrd, Conjugal Marriage Fosters Healthy Human and Societal Development,  in What’s the Harm 3 (Lynn D. Wardle, ed. 2008) (discussing the research demonstrating that a family with two biological parents who are married is the optimum environment for rearing children and specifying the roles fulfilled by a father and a mother which are different but complimentary).

[105] See Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App. 1974) ([M]arriage is so clearly related to the public interest in affording a favorable environment for the growth of children that we are unable to say that there is not a rational basis upon which the state may limit the protection of its marriage laws to the legal union of one man and one woman.”)

[106] Baehr v. Miike, Civ. No. 91-1394 (Haw. Cir. Ct. Dec. 3, 1996), quoted in Duncan, supra note 97 at 158.

[107] Baker v. Vermont, 744 A.2d 864, 884 (Vt. 1999), quoted in Duncan, supra note 97 at 159.

[108]Id.

[109] Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003), cited in Duncan, supra note 97 at 159.

[110] See Singer, 522 P.2d at 1197 (“[M]arriage as now defined is deeply rooted in our society.”), quoted in Duncan, supra note 97, at 159;  Adams v. Howerton, 673 F.2d 1036, 1043 (9th Cir. 1982) (“[Same-sex marriage] violate[s] traditional and often prevailing societal mores.”), quoted in Duncan, supra note 97, at 160.

[111] Duncan, supra note 97, at 160 (citing Baker v. Vermont, 744 A.2d 864, 884 (Vt. 1999); Defendants’ Brief at 30, Lewis v. Harris, No. MER-L-15-03, 2003 WL 23191114 (N.J. Super. Ct. Nov. 5, 2003); Appellees’ Brief at  6, Morrison v. Sadler, No. 49A02-0305-CV-447 (Ind. Ct. App. 2003)).

[112] See Lawrence v. Texas, 539 U.S. 558 (2003) (J. O’Connor, concurring) (stating that “preserving the traditional institution of marriage” may be a legitimate state interest).

[113] See Adams v. Howerton, 673 F.2d 1036, 1043 (9th Cir. 1982); Baehr v. Miike, Civ. No. 91-1394 (Haw. Cir. Ct. Dec. 3, 1996) at 16; Baker 744 A.2d at 884.

[114] Dean v. District of Columbia, 653 A.2d 307, 355 (D.C. 1995) (Ferren, J., concurring and dissenting).

[115] Duncan, supra note 97 at 164–80.

[116] Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).

[117] Id.

[118] CDC, Use of Assisted Reproductive Technology—United States, 1996 and 1998, 51 MMR Weekly 97, 97 (2002).

[119] J. Reefhuis et al., Assisted Reproductive Technology and Major Structural Birth Defects in the United States, 24 Human Reproduction 360 (2009).

[120] Id.

[121] Id.

[122] Charlotte A. Schoenborn, Marital Statues and Health: United States, 1999-2002, 351 Advance Data From Vital & Health Statistics 1, 10 (2004).

[123] Id.

[124] A. Dean Byrd, Conjugal Marriage Fosters Healthy Human and Societal Development, in What’s the Harm? 4, 13 (Lynn D. Wardle ed. 2008) (citing 2004 HIV/Aids Surveillance Report, Center for Disease Control and Prevention, Vol. 16, at 32, Table 17.).

[125] Id. (citing R.S. Hogg and S.A. Strathede, Modeling the Impact of HIV disease on Mortality in Gay and Bisexual Men, 26 International J. Epidemiology 657 (1997)).

[126] Id. (citing J.R. Diggs, The Health Risk of Gay Sex, Corporate Resource Council, 1–16; M. Frisch et al., Cancer in a Population-based Cohort of Men and Women in Registered Homosexual Partnerships, 157 Am. J. Epidemiology 11 (2003)).

[127] Id. at 14 (citing Diggs, supra note 126).

[128] Id. at 14 (citing R. Michalea et al., Sex in America: a Definitive Survey (1994)).

[129] Id. (citing D.P. McWhirter and A.M. Mattison, The Male Couple: How Relationships Develop (1984).

[130] Id. at 15 (citing M. Xiridou et al., The Contribution of Steady and Casual Partnerships to the Incidence of HIV Infection among Homosexual Men in Amsterdam, 17 AIDS 1029 (2003).

[131] Id.

[132] Id.

[133] See, e.g., Predicting Successful Marriages, 22 Harvard Mental Health Letter 6 (2006); Cynthia G. Wagner, Predicting Successful Marriages, 30 Futurist 21 (1999); Ted Byfield, If You Want to Guarantee Your Marriage Fails, Here’s Solid Advice on How to Do It,  Newsmagazine, Mar. 2, 1998 at **.