Academic journal article Brigham Young University Law Review

Marriage and the Betrayal of Perez and Loving

Academic journal article Brigham Young University Law Review

Marriage and the Betrayal of Perez and Loving

Article excerpt


In March 2005, a San Francisco trial judge held that California voters' recent reaffirmation of marriage as the union of a man and a woman violated the state constitution's equality guarantee because that reaffirmation prevents same-sex couples from marrying.1 In so holding, the court relied heavily on what is commonly known in "same-sex marriage" discourse as the argument of the Loving analogy-an analogy more fairly labeled Perez/Loving. In 1948, the California Supreme Court in Perez v. Lippold2 led the way for the nation by holding that statutory prohibitions of interracial marriages violated constitutional protections of equality. Then in 1967, the United States Supreme Court in Loving v. Virginia3 held the same. The argument of the Perez/Loving analogy, in its simplest form, goes like this: Because it is unconstitutional (as unequal and unfair) to prevent a black from marrying a white, it is likewise unconstitutional to prevent a man from marrying a man or a woman from marrying a woman.

The argument of the Perez/Loving analogy4 is not only ubiquitous in genderless marriage cases5 but is also ubiquitous in the popular debate on the meaning of civil marriage, no doubt because the argument is simple-that is, easy to make and easy to grasp-and thus well suited to a "sound bite" political culture. It also seems fair to say that the argument is a favorite of those advocating the redefinition of marriage as the union of any two persons and that it is likewise a media darling.

A. A Suggestion of Betrayal

Sometimes, but not always, simple arguments are flawed by superficiality. That is, they work at the surface level, at the level of the obvious, but are defeated by deeper realites constituting the subject of the argument. The subject of the Perez/Loving argument is, of course, marriage. Recent work investigating the realities constituting marriage6 suggests that the argument is flawed by superficiality. In a more startling and grave progression, however, that work also suggests that judicial adoption of the Perez/Loving argument amounts to a betrayal of those two landmark cases. This Article assesses the validity of this suggestion of betrayal-a suggestion summarized in unvarnished fashion in the following paragraphs.7

Marriage is a vital social institution. As such, it is constituted by a complex web of shared public meanings, with a core meaning being-across cultures and time-the union of a man and a woman. Like other powerful social institutions, marriage performs an important educative and socializing function. In its sphere, the marriage institution shapes and guides individuals' identities, perceptions, aspirations, and conduct, including what they believe to be important and what they strive to achieve. It is in this way that the constitutive meanings of marriage provide valuable social goods, some uniquely.

The law has a role relative to the marriage institution, as it does with other social institutions of betterment. In support, the law gives marriage formal recognition, brings legal and administrative arrangements into line with institutional practices, facilitates the institution's use by members of the community, and encourages the transmission of institutional values from generation to generation. But the law can also change or even dismantle an institution-it does so by changing or suppressing the shared public meanings constituting the institution.

Because marriage has a powerful educative role in our society-a power reinforced by the supporting law's authoritative voice-the marriage institution is a tempting target for those seeking to advance the sociopolitical purposes of an ideology unrelated to marriage. If those so seeking can appropriate the institution and bend it to their purposes, they have gone far in assuring the triumph of their agenda.

In the American past, two social movements temporarily succeeded in using marriage as a means to achieve ulterior ends: the white supremacist movement and the eugenics movement. …

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