[Julie Steiner]

Cross-posted.

My own interracial marriage is legal not because of the 1967 SCOTUS decision in Loving v. Virginia...but because of the 1948 California Supreme Court decision in Perez v. Sharp. California was a bit ahead of the curve.

But again, the restrictive marriage laws in question were changed by a court decision, not a popular vote; and again, it was the decision of a divided court (4-3). Given the popular opposition to miscegenation at the time, it's debatable whether a vote would have overturned this law before Loving came along.

Then again, Perez was cited extensively as a precedent in the Loving decision, so Loving would almost certainly not have gone the way it did without Perez, even though Brown v. Board of Education had come along in the meantime.

Perez was also cited in 2008, when the California Supreme Court ruled the following in the case In re Marriage Cases:

1. Sexual orientation is recognized as a suspect class for purposes of the Equal Protection Clause of the California Constitution.

2. Offering a legal relationship called "marriage" to opposite-sex couples while consigning gay couples to "domestic partnerships" impinges upon the fundamental right to marry by denying such legal relationships equal dignity and respect.

The distinction between marriage and domestic partnerships risks the right to privacy regarding sexual orientation for those in domestic partnerships.

Both because a suspect class is targeted and because fundamental rights are impinged upon by the challenged provisions, the strict scrutiny standard of review applies, under which those provisions limiting marriage to opposite-sex couples must serve a compelling state interest and be necessary to serve such an interest. Neither being the case, laws limiting marriage to opposite-sex couples are unconstitutional.

I am struck by the fact that--unlike the Perez, Loving, and In re Marriage Cases decisions--the SCOTUS's Obergefell decision makes no such identification of a "suspect class" or "strict scrutiny"--i.e., there is no statement in Obergefell that laws restricting the rights of a particular group tend to be motivated by discrimination, and thus deserve a closer look.

I wonder why Obergefull stops short of saying that. It's such an obvious opportunity to identify homosexuals as a group that has been historically singled out for discriminatory treatment...and yet it doesn't.

The silence seems significant to me.

Perhaps the religious nature of the typical objections to homosexual partnerships may somehow protect homophobia from being identified as a basis for discriminatory laws, in the way that Loving and Perez identified white supremacism as a basis for anti-miscegenation laws.

But I don't think that's a good explanation, because anti-miscegenation laws were religiously based, too. The original trial judge in Loving (whose decision the Lovings appealed) wrote:

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.

Still thinking about this.