Beyond Racial Precedents: Loving v. Virginia as an Appropriate Legal Model and Strategy for Same-Sex Marriage Litigation

This thesis explores how LGBT marriage activists and lawyers have employed a racial interpretation of due process and equal protection in recent same-sex marriage litigation. Special attention is paid to the Supreme Court's opinion in Loving v. Virginia, the landmark case that declared anti-miscegenation laws unconstitutional. By exploring the use of racial precedent in same-sex marriage litigation and its treatment in state court cases, this thesis critiques the racial interpretation of due process and equal protection that became the basis for LGBT marriage briefs and litigation, and attempts to answer the question of whether a racial interpretation of due process and equal protection is an appropriate model for same-sex marriage litigation both constitutionally and strategically. The existing scholarly literature fails to explore how this issue has been treated in case briefs, which are very important elements in any legal proceeding. I will argue that through an analysis of recent state court briefs in Massachusetts and Connecticut, Loving acts as logical precedent for the legalization of same-sex marriage. I also find, more significantly, that although this racial interpretation of due process and equal protection represented by Loving can be seen as an appropriate model for same-sex marriage litigation constitutionally, questions remain about its strategic effectiveness, as LGBT lawyers have moved away from race in some arguments in these briefs. Indeed, a racial interpretation of Due Process and Equal Protection doctrine imposes certain limits on same-sex marriage litigation, of which we are warned by some Critical Race theorists, Latino Critical Legal theorists, and other scholars. In order to fully incorporate a discussion of race into the argument for legalizing same-sex marriage, the dangers posed by the black/white binary of race relations must first be overcome.

Human Capital and Interethnic Marriage Decisions

Despite a longstanding belief that education importantly affects the process of immigrant assimilation, little is known about the relative importance of different mechanisms linking these two processes. This paper explores this issue through an examination of the effects of human capital on one dimension of assimilation, immigrant intermarriage. I argue that there are three primary mechanisms through which human capital affects the probability of intermarriage. First, human capital may make immigrants better able to adapt to the native culture thereby making it easier to share a household with a native. Second, it may raise the likelihood that immigrants leave ethnic enclaves, thereby decreasing the opportunity to meet potential spouses of the same ethnicity. Finally, assortative matching on education in the marriage market suggests that immigrants may be willing to trade similarities in ethnicity for similarities in education when evaluating potential spouses. Using a simple spouse-search model, I first derive an identification strategy for differentiating the cultural adaptability effect from the assortative matching effect, and then I obtain empirical estimates of their relative importance while controlling for the enclave effect. Using U.S. Census data, I find that assortative matching on education is the most important avenue through which human capital affects the probability of intermarriage. Further support for the model is provided by deriving and testing some of its additional implications.