Final Paper

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Marriage and Law: LGBTQ and Interracial Marital Disparities in America (1579)

Racially and sexually, the white, cishet hegemon has rarely tolerated mixing in either category. By mixing between races or exploring sexuality, it destroys the foundations of power on which the dominant group stands. The citizenship of individual LGBTQ+ people have been in the hands of conservative lawmakers for many decades. Just now, we are seeing breakthroughs in the legislation that has kept many sexual and racial minorities on the sidelines. This paper explores how the notions of white “purity” and heteronormative ideals have plagued the sphere of marriage law for the past century, in turn justifying the anti-LGBTQ+ rhetoric of today. 

Previous anti-miscegenation laws and anti-miscegenation rhetoric in the Supreme Court reveal the ways in which white power is preserved and maintained both legally and socially. Courts often utilized “[g]enealogy, appearance, claims to identity, or that mystical quality, ‘blood,’” in order to convince white people that mixing with non-whites would lead to doom (Pascoe 51). Picking apart someone’s biological features served, “[the] maintenance of ordered society” (Pascoe 51). As an example, in Kirby v. Kirby, Joe Kirby used his apparent white privilege to plead for an annulment, against his wife, Mayellen Kirby, based on the illegitimacy of interracial marriage at the time. His wife’s lawyer used a racial prerequisite case to question Joe’s legal legitimacy as a man of “Caucasian blood.” However, the court failed to analyze Mayellen’s race: the only basis for distinguishing her as a Black woman was her “color and the hair.” (Pascoe 45).This case exemplifies the racial stereotypes placed on non-white citizens based on their physical features. The same assumptions are rarely ever placed onto white citizens; thus, the law validates racist ideals in favor of maintaining white power. The construction of these racial biases demonstrate Lopez’s idea that “[R]ace reveals itself as plastic, inconstant, and to some extent volitional” (194). By assuming Joe is white and Mayellen is Black based off of their appearances, the case shows how race is cherry-picked to favor white people’s assumptions on who belongs to which race. To expand on this idea, the production of a racial “hybrid,” a person who is mixed-race, (Anzaldúa) breaks the “buckets” of racial categories and threatens conceptions of this white “purity”. (Buckmire). In today’s world, interracial couples are allowed, and their children can see the flaws in forcing others to marry of their own race. The concept of Black/White as binary oppositions is also dismantled because mixed-race people live in a liminal space, an area between these racial binaries (Anzaldúa). The ability to justify racist ideas through the law is lesser now, but that does not hinder the societal stigma of being a person of mixed-race. Society still finds ways to demonize racial “hybrids” for not fitting into one racial label. Kirby v. Kirby is one of many cases that demonstrates how the legal world maintains racist ideas about interracial marriages by allowing certain privileges to white citizens over non-white citizens. 

The same dehumanizing rhetoric around same-sex marriage bars LGBTQ+ people from the economic and legal privileges that heterosexual couples receive. Furthermore, in Singer v. Hara (1974), the use of exclusionary language to deny same-sex marriage rights supports the idea that marriage should be of heterosexual couplings, who can reproduce and maintain gender roles. In Singer v. Hara, the couple had to have proof that the Equal Rights Amendment (ERA), before it was ratified as the twenty-seventh amendment to the United States, was violated when they were denied a marriage license. Two years prior, the election promised legislation for legalizing same-sex marriage if the house joint resolution (HRJ 61) was approved. In a 1972 Voters Pamphlet published by the Secretary of State, they implied a tolerance of homosexuality but a protection of the concept of marriage when they stated that “Homosexual and lesbian marriage would be legalized… People will live as they choose, but the beauty and sanctity of marriage must be preserved from such needless discretion” (Eskridge & Hunter, 800). The use of “sanctity” and “needless discretion,” used to compare heterosexual marriage to same-sex marriage, assumes same-sex marriage is neither holy nor should be willingly given. The language of the Secretary of State reinforces the government’s false promises to enact LGBTQ rights. If same-sex couples cannot expect their rights to be granted, the rights of individual LGBTQ+ people are not guaranteed either. Furthermore, marriage grants economic and legal privileges for heterosexual couples. Eskridge and Hunter state, “[Those rights] include: (1) a variety of state income tax advantages… (2) public assistance from and exemptions relating to the Department of Human Services; (3) control, division, acquisition and disposition of community property…” (810). This couple was denied these opportunities under the assumption that a couple must contain members of the opposite sex. The hegemon of white cishet men cannot enforce their financial power over their partner if they are of the same sex. The whole system of gender wage gap, property benefits, and taxes would need to be uprooted. The fear of destroying society’s gender roles is why same-sex couples are denied marriage rights. The law had given more tax, property, and financial rights to heterosexual marriages, which incentivized homosexuals to deny their sexuality and assimilate into the heteronormative life path. Heterosexuals in power also denied the right to same-sex marriage to prevent sexual hybrids, those who are not heterosexual, under the assumption that having gay parents will “turn children gay.” The importance of marriage is founded on the idea that a man and woman must be producing a child, who will be instilled with “normal and moral” heteronormative values. However, this also assumes that all heterosexual couples want to have children as well: for example, in Obergefell v. Hodges, the Supreme Court perceived reproduction, assumed between a man and woman, to be “essential,” (2). Heteronormativity harms any couple because it assumes that every couple’s purpose is to reproduce. As my colleague, Alex Wells, explains in her essay, “[T]he fear of queer people is used to condition how young Americans act, using the threat of being identified as homosexual to force people to fall into traditional gender roles, further reinforcing the patriarchy in the process, and repeating this self-reinforcing cycle" (Wells). The “danger” of hybrids within miscegenation laws is apparent here too: to make hybrids, racial or sexual, forces the children of interracial or same-sex marriages to see the injustices of racial, gender, and sexual minorities.

Now that interracial and same-sex marriages are allowed, children’s innocence and assumed aversion to topics about sexuality and gender are springboards for anti-trans laws and drag bans. If people cannot criminalize parents who produce or raise children in supportive environments anymore, then barring said children from outwardly expressing their sexuality and demonizing those who express gender through drag is the next step. Similar to barring the interracial couples from mixing, the law is used to limit individual LGBTQ+ people’s right to express themselves. As recently as last March, Governor of Tennessee, Bill Lee, made headlines by signing the ban on drag and gender affirming care: This is a major example of how legislation still uses themes of “purity” but this time under the guise of “protecting children from homosexuals.” 

These ideas harken back to Anita Bryant’s “Save the Children” campaign of the seventies (Miller 402) The Tennessee Senate Bill 3, the “Tennessee Adult Entertainment Act,” equates drag performers to “topless dancers, go-go dancers, exotic dancers, strippers… who provide entertainment that appeals to a prurient interest." (1), which associates the “script” (Wideman) of the “perverted homosexual” against the chastity of children. It also labels people in drag as “male or female impersonators,” ultimately villainizing an expression of gender that does not fit society’s standards of simply “man” or “woman.” To add to the criminalization of gender expression, Tennessee has also prohibited youth from accessing gender-affirming care until they are eighteen years old. The reasoning is that this care is “suddenly forced” upon children by homosexuals or their doctors. It is actually a process of working with “therapists, parents, and health care providers” to provide care that is best for the child in question (HRC). Gender-affirming care is not only consensual hormone therapy and surgeries, it also includes care such as a “new name, new hairstyle [or] new clothing” (HRC) By prohibiting the social gender-affirming care– under the guise of “protecting children” –youth are discouraged from exploring their identities at critical moments in their lives. If the outward expression of being trans or non-binary is barred, the number of citizens who externally are LGBTQ is decreased. Tennessee has been setting precedents for anti-LGBTQ laws in America and as HRC Legal Director Sarah Warbelow responds, "These extremist politicians who took an oath to protect all of the people of Tennessee are telling us loud and clear that they have no plans to uphold fundamental rights or demonstrate respect for all of their constituents” (HRC). Until people halt using outdated notions about homosexuality and children’s “safety” as a scapegoat, it will take a very long time for LGBTQ citizens to be given respect for their bodily autonomy and expression. 

From race to sexuality to gender expression, these ideologies center back to the idea that the white, straight male leadership ultimately decides what is “just” for the lives of LGBTQ people and non-whites in America. However, this is a place that time and time again shows that it does not respect or want them unless they conform to the rigid structure of racial separation and the binary of gender expression. 

Work Cited

Anzaldúa, Gloria. Making Face, Making Soul: Haciendo Caras : Creative and Critical 

Perspectives by Feminists of Color. First edition., Aunt Lute Foundation Books, 1990.

Buckmire Lecture, 2023

Eskridge, William N., Hunter, Nan D., Sexuality, Gender, and the Law, The Foundation Press 

Inc., 1997, https://sites.oxy.edu/ron/csp19/readings/eskridgehunter-baehr.pdf. 

“Human Rights Campaign Slams Governor Lee for Signing Anti-Drag Bill and Gender 

Affirming Care Ban into Law; TN Becomes First State to Criminalize Drag” Human Rights Campaign, 2 March, 2023, https://www.hrc.org/press-releases/human-rights-campaign-slams-governor-lee-for-signing-anti-drag-bill-and-gender-affirming-care-ban-into-law-tn-becomes-first-state-to-criminalize-drag 

Miller, Neil. Out of the Past : Gay and Lesbian History from 1869 to the Present. 1st Vintage

Books ed., Vintage Books, 1995. 

Pascoe, Peggy. Miscegenation Law, Court Cases, and Ideologies of "Race" in Twentieth-Century, 

Oxford University Press on behalf of Organization of American Historians, America The Journal of American History, Jun., 1996, Vol. 83, No. 1 (Jun., 1996), pp. https://www.jstor.org/stable/2945474. 

Obergefell v. Hodges, 576 U.S. ___ (2015), 

https://sites.oxy.edu/ron/fys6/readings/obergefellhodges-syllabus.pdf. 

Tennessee Adult Entertainment Act, Section 7-51-1401, (2023)

https://www.capitol.tn.gov/Bills/113/Bill/SB0003.pdf. 

Wells, Alexandria “Final Essay”. Visited 11/8/23. 

https://alexsverycoolblogfys6.blogspot.com/2023/12/final-essay.html 

Wideman, Daniel J. “Free Papers.”, Outside the Law: Narratives on Justice in America, Beacon 

Press, 1997.

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