Marriage Demosprudence

Many scholars reject the notion that courts can implement sweeping social change through brute force. Indeed, prominent social scientists have viewed courts’ efficacy in this arena with skepticism. Whether courts routinely safeguard minority rights against majoritarian impulses is also deeply contested. These questions of judicial capacity and social change have returned with great intensity as courts have systematically dismantled state laws prohibiting same-sex marriage. Often in the course of debate, parallels have been drawn between same-sex marriage and interracial marriage. These connections, however, are generally thin in their analysis of the comparative influence of courts and legislatures. Marriage Demosprudence reconstructs the historical record to better assess the judicial role in family law evolution during the 20 years prior to Loving v. Virginia. The Article reveals strong parallels between the movement to secure recognition of interracial marriage and that of same-sex marriage. Both movements relied upon courts as legitimizing institutions to erode marriage prohibitions. While the courts were woefully inadequate in combating interracial marriage prohibitions, they were not wholly absent actors. Judicial institutions were part of an evolving dialogue that slowly chipped away at anti-miscegenation laws between 1948 and 1967. Ultimately, the era of marriage law liberalization pre-Loving was more dynamic and more similar to years preceding Obergefell v. Hodges than a cursory reading of the periods may suggest. A careful examination of these two periods offers a strong rejoinder to the critique that courts cannot help produce social reform or that courts have no legitimate voice in shaping the meaning of family