Mixed Race Studies

The Sexualization of Difference: A Comparison of Mixed-Race and Same-Gender Marriage

Harvard Civil Rights-Civil Liberties Law Review
Volume 37, Number 2, Summer 2002
pages 255-288

Josephine Ross, Associate Professor of Law; Supervisor, Criminal Justice Clinic
Howard University, Washington, D.C.

I. Introduction: Mixed-Race Love as a Sexual Orientation

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 marriage 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 comparison holds together descriptively as well as formalistically. Nor have contemporary attitudes towards same-sex couples been compared to historical 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 monorace) in the context of history, both legal and cultural. The historical treatment of mixed-race marriages in this country supplies important information regarding the way society marginalizes certain relationships, and the connection between deprivation of marriage rights and the sexualization of relationships.

To say that a relationship is “sexualized,” means it is viewed as essentially sexual, and is not seen to be about commitment, communication or love. To understand what I mean by the word “sexualized,” consider certain reactions to an elementary school teacher who came out to his class in Newton, Massachusetts. When asked if he was married, the teacher responded that he was not, but that if he were to live with someone, he would live with a man that he would “love the way your mom and dad love each other.” This response gave rise to a parent’s complaint that the teacher had talked inappropriately about “sex;’ That story nicely encapsulates what I mean by the sexualization of same-sex love. If the teacher had answered that he would like to marry a woman whom he would “love the way your mom and dad love each other,” no one would have sexualized his response.

My argument is that the sexualization of gay relationships is similar to the way interracial relationships were sexualized in the past. For both, sexualization is a cause as well as a symptom of disempowerment. In the 1970s, social scientists began to describe the continued sexualization of black-white relationships in the United States from the time of slavery through the decade following the Supreme Court’s 1967 decision in Loving v. Virginia. They noted that narrative discourse around mixed-race couples was sexualized, and that mixed-race love was viewed as something pornographic and essentially different from mono-race love. Social scientists uncovered attitudes towards mixed-race couples by family members and society at large that I believe mirror attitudes towards same-sex couples.

Part II of this Article provides clues to the link between the sexualization of relationships that trespass on societal norms, and the deprivation of power and rights. Section A explores how mixed-race relationships were sexualized in the past, while Section B examines how the law has been used to restrict both mixed-race and gay couples. Section B also explores the cases that predate Loving and the reasons for denying recognition to mixed-race marriages. Those reasons are compared to arguments made by marriage opponents in same-sex marriage cases today.

Part III considers similarities in the lives of gay couples and mixed-race couples in order to demonstrate that analogizing the issue of marriage as it relates to each group is not merely a trick of logic. Section A examines the analogy between Loving v. Virginia and same-sex marriage cases. Section B reviews recent social science data that illustrates many parallel experiences of outsider couples, including the reactions of family members and society, the ways non-traditional couples cope with those negative reactions, and the reasons couples commit to one another despite adversity. By comparing mixed-race and same-sex couples, one can learn a good deal about the way society grants status and safety to certain relationships while marginalizing others.

Part IV asks whether the term “sexual orientation” should be expanded to include those in mixed-race, heterosexual relationships. How one answers this question will shed light on whether the phrase “sexual orientation” is a useful or accurate term when applied to those in gay relationships.

In the Conclusion to this Article, I urge scholars to desist from sexualizing gay relationships. Like mixed-race couples, same-sex partners are not necessarily any more sexual than their heterosexual counterparts. Gay couples, like mixed-race couples, are different not because of what they do or do not do in the bedroom, but because of the meaning ascribed to these couples in supermarkets, in dance halls, and in PTA meetings. Advocates and scholars should learn from past sexualization of mixed-race love and consider more accurate and less sexualized means to characterize same-sex love and relationships…

…The ban on mixed-race marriage did not eliminate sexual activity, but affected the nature of the sexuality, making it secret, closeted and sinful. In the case of white men and black women, the taboo distorted their relationships, suppressing affection or the appearance of affection, rendering them sexual liaisons only. As sociologist [Calvin C.] Hernton wrote, a white man “can sleep with [a black lover] discreetly, give her mulatto babies, but in all of this he must never act as if he loves her.”

Although the apartheid system in this country was intended to prevent access to white women by black men, the system was not completely successful. Hernton documented in his personal life and in his work a great deal of sexual activity between white women and black men in this era. In his opinion, women were often the aggressors because they were the ones with power during segregation. Jim Crow laws could even be said to aid the women’s conquest because although there were dreadful consequences for black men who consented and were discovered, men were sometimes more afraid to resist for fear they would be framed as rapists and face mob violence. As with white men’s liaisons with black women, the interracial sex taboo served to make liaisons between white women and black men purely sexual and clandestine…

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