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.

A sex difference in seasonal timing of birth in a livebearing fish

Sex differences in seasonal timing include differences in hatch- or birth-date distribution and differences in the timing of migration or maturation such as protandrous arrival timing (PAT), which is early male arrival at breeding sites. I describe a novel form of protandrous arrival timing, as a sex difference in birth-date distribution in a live-bearing fish (Dwarf Perch, Micrometrus minimus). In this species, birth coincides with arrival at breeding sites because newborn males are sexually active. A series of samples of pregnant females and young of year was collected in Tomales Bay, CA. I analyzed the daily age record in otoliths to estimate the conception date of broods and the age that young-of-year individuals were born. Males were born at a younger age than females, as indicated by the daily age record and also by the predominance of females in broods from which some young had already been born, which was a common occurrence in pregnant females with older embryos. Sex ratio of broods varied with conception date such that early-season broods were predominantly male, possibly as a result of temperature-dependent sex determination. The combined effects of the sex difference in age at birth and seasonal shift in sex ratio were to shift the mean birth date of males relative to females by five days. The most likely ultimate explanation for PAT in the Dwarf Perch is that it arises from exploitation (scramble) competition for mating opportunities among recently-born young-of-year males.