Same-Sex Marriage and \u3cem\u3eLoving v. Virginia\u3c/em\u3e: Analogy or Disanalogy?

In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative analogy supporting plaintiffs’ claims that same-sex marriage bans violate the Constitution. This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an individual’s freedom to marry the person of his or her choice, and (2) that interracial marriage bans are conceptually distinguishable from laws forbidding same-sex marriages and therefore do not violate the Constitution. The Essay concludes that Loving is a useful and authoritative analogy supporting the claims of plaintiffs who contend, among other things, that states may not constitutionally deny same-sex couples the right to marry based solely on the traditional view that marriage is, and should only be, the legal union of one man and one woman