125 Yale L.J. F. 1 (2015-2016)

handle is hein.journals/yljfor125 and id is 1 raw text is: 

APRIL 28, 2015

Brown, Not Loving: Obergefell and the Unfinished

Business of Formal Equality

Katie Eyer


    Nearly fifty years ago, in the 1967 case Loving v. Virginia, the Supreme
Court struck down bans on interracial marriage.1 This Term, the Court seems
poised to further expand marriage equality by holding that same-sex couples,
too, are guaranteed the constitutional right to marry. In both instances, the
Court's taking up of marriage followed decades of organizing and social
movement evolution vis-$-vis a broader underlying civil rights project. In both
instances, marriage has had special symbolic significance as an area of marked,
sometimes visceral, opposition among the social movement's opponents.
    While there are thus numerous parallels between Loving v. Virginia and the
latest marriage case before the Court, Obergefell v. Hodges,2 this Essay suggests
that there is at least one important difference between the two: their position
vis-$-vis the institutionalization of a formal equality regime (that is, a legal

1.  388 U.S. 1 (1967).
2.  135 S. Ct. 1039 (2o15). Obergefell is the lead captioned case in a collection of consolidated
    cases on which the Court has granted certiorari review to resolve the issue of whether the
    Fourteenth Amendment requires states to license same-sex marriages directly and/or to
    recognize valid out-of-state marriages. See OrderList: 574 U.S., U.S. SUPREME CT., (Jan. 16,
    2o15), http://www.supremecourt.gov/orders/courtorders/o116iszr f2q3.pdf [http://perma
    .cc/P257-NZJR]. For conciseness, I use Obergefell throughout this Essay as shorthand for
    this collection of pending cases.
3. As used herein, formal equality signifies a legal regime in which invidious use of a
    particular classification is deemed presumptively unlawful. In the statutory domain, this
    generally takes the form of an explicit statutory proscription on discrimination on the basis
    of a particular characteristic, and, in the contemporary constitutional domain, generally
    takes the form of protected class status triggering heightened scrutiny. Throughout this
    Essay, my discussion includes both of these forms of formal equality protections, which I
    consider to be equally important.

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