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37 Harv. C.R.-C.L. L. Rev. 255 (2002)
The Sexualization of Difference: A Comparison of Mixed-Race and Same-Gender Marriage

handle is hein.journals/hcrcl37 and id is 261 raw text is: The Sexualization of Difference:
A Comparison of Mixed-Race and
Same-Gender Marriage
Josephine Ross*
The past prohibition of mixed-race marriages in many U.S. states is
often cited by those who support civil recognition of same-sex marriages.
Advocates and scholars reason that just as it is no longer legal to deny
marriage licenses on the basis of race, it should be illegal to deny mar-
riage licenses on the basis of sex. Unfortunately, the comparison usually
stops there. No effort has been made by the legal community to examine
the actual lives of these two groups of outsider couples to see if the com-
parison holds together descriptively as well as formalistically.' Nor have
contemporary attitudes towards same-sex couples been compared to his-
torical data detailing attitudes towards mixed-race sexuality during the
time that mixed-race relationships were illicit. This Article will compare
heterosexual mixed-race and same-sex unions (both mixed-race and mono-
race) in the context of history, both legal and cultural. The historical treat-
ment of mixed-race marriages in this country supplies important information
regarding the way society marginalizes certain relationships, and the con-
nection between deprivation of marriage rights and the sexualization of rela-
* Visiting Assistant Clinical Professor at Law, Boston College Law School. J.D., Bos-
ton University School of Law, B.A., Oberlin College. I gratefully acknowledge the com-
ments on an earlier draft by Leslie Espinoza and David Cruz. I have also benefited from
discussions on same-sex marriage issues with a variety of other people, including Arthur
Berney, Anthony Farley, Maria Grahn-Farley, Jane L. Scarborough, and Catharine Wells.
This Article is based on a talk I gave at the University of Florida for Latcrit VI, and I
benefited from the comments of those in the audience. My diligent research assistant
Heather Lynn Anderson also earned my heartfelt thanks. Finally, I thank the editors at this
journal for the enthusiasm and dedication with which they embarked upon the editing pro-
See Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex
Discrimination, 69 N.Y.U. L. Rav. 197, 221, 249 (1994) (arguing that discrimination
against gay men and lesbians is part of a larger pattern of domination of women by men,
just as discrimination against interracial couples is part of a larger pattern of domination of
blacks by whites); James Trosino, American Wedding: Same-Sex Marriage and the Misce-
genation Analogy, 73 B.U. L. Rnv. 93 (1993) (arguing that the judiciary's historical treat-
ment of miscegenation cases reflected societal prejudices, and explaining how those same
prejudices are being reflected in the judiciary's contemporary treatment of same-sex mar-

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