Via Glenn we are directed to a post by Jim Chen insisting on an analogy between the recent NJ Supreme Court decision on gay marriage and the 1967 US Supreme Court decision which overturned anti-miscegenation laws, Loving v. Virginia.
I dispute this from Prof. Chen:
The most obvious analogy supporting legal recognition is Loving v. Virginia, 388 U.S. 1 (1967). It's such an obvious analogy that it is futile to cite any of the hundreds, thousands of sources that make the connection. But just because an argument is obvious does not make it wrong. In this instance, the Loving analogy is complete.
Loving v. Virginia at Thirty
by Randall Kennedy
Thursday, February 6, 1997
Randall Kennedy is a Professor at Harvard Law School. He is also a Contributing Editor of IntellectualCapital.com.
This year marks the 30th anniversary of the most aptly titled case in the history of the United States Supreme Court -- Loving v. Virginia. Loving was the name of a couple that was prosecuted for marrying.
...The way that the Supreme Court approached the ban on interracial marriage is a revealing reminder of the cautious manner that the tribunal typically deals with volatile social controversies. It encouraged other lawgivers to lead the way. In 1948 the Supreme Court of California ruled that that state's ban on interracial marriage violated the federal constitution's Equal Protection Clause. Yet, even after having invalidated de jure segregation in public schooling in Brown v. Board of Education, the U.S. Supreme Court was afraid to touch the emotional issue of interracial familial intimacy. In 1955 the Court considered reviewing a conviction under Virginia's ban, but ultimately decided to duck the issue. During the following decade, a dozen states repealed laws prohibiting interracial marriage and the Civil Rights Movement challenged the white supremacist notions from which these prohibitions stemmed. Only near the end of that remarkable era of struggle against racism was the Supreme Court willing to rule on the (un) constitutionality of anti miscegenation laws. In Loving, the Court struck down Virginia's statute on the grounds that it represented merely an "invidious racial discrimination" and that it unjustifiably deprived the defendants of one of the "basic civil rights of man."