Comparisons to bans on interracial marriage and bans on same-sex marriage are not neat comparisons. Loving was procreation-related. Before Loving, bans on slaves marrying and nonrecognition of interracial relationships in slavery were all procreation-related. Identifiability is no benefit for blacks but was and is a means for targeting blacks for racial oppression.
Historically, it is indisputable that marriage was heterosexual under the common law. The founders knew about same sex marriages, but considered them not to be legal. When such relationships were respected, they were treated as private contracts between consenting adults. Sometimes, however, even with consent, they were disregarded. The marriages overwhelmingly involved women because men could do better economically outside of the marriage structure. The history of bans on sodomy and bans on marriage are distinct. History also indicates oppression of sexual minorities through vagrancy laws.
Marriages alleged benefits and burdens have been inaccurately described. Many address the biological and consequently economic imbalance presumed to exist in the opposite sex couple. In most states, women do not amass an “equal” right during the marriage to marital property. Unlike other western nations, the United States has no system for automatically covering the cost of procreation to couples experiencing it (as opposed to childrearing). It uses marriage. By declining domestic relations cases, federal courts have declined to gain experience in marriage policies and how they operate. Consequently, state judiciaries are an important voices to be heard in the interpretation of marriage.
At a minimum, the Court should require every state to provide some means for security of same-sex relationships. If the Court chooses marriage, states should have the right to determine the incidents of marriage as they always have had. The Court should look to principles of liberty and privacy in its decision.
Given their history, under conflict of law principles, same-sex marriages would not have been honored under the “place of celebration rule.” Thus a decision holding that a state does not have to recognize a right to marry would settle the question of interstate applicability. The same is true if the Court determines states must recognize such a right.
GW Paper Series
GWU Law School Public Law Research Paper No. 2015-32 GWU Legal Studies Research Paper No. 2015-32
Carter, W. Burlette, Brief of Amicus Curiae Professor W. Burlette Carter in Support of Neither Party: Obergefell V. Hodges; Deboer V. Snyder; Tango V. Haslam; Bourke V. Beshear (2015). Carter, W. Burlette, Brief of Amicus Curiae Professor W. Burlette Carter in Support of Neither Party, Obergefell v. Hodges; Deboer v. Snyder; Tanco v. Haslam; Bourke v. Beshear (March 4, 2015).; GWU Law School Public Law Research Paper No. 2015-32; GWU Legal Studies Research Paper No. 2015-32. Available at SSRN: http://ssrn.com/abstract=2660469