Perry: The New Loving?

In today’s Crimson, Avishai Don argues that, if California’s voter-approved gay marriage ban is upheld in the courts, it will “legitimize the concerns of the segregationists four decades ago.”
But the correlation between Perry v. Schwarzenegger and Loving v. Virginia is, legally speaking, less than one-to-one, even though the comparison makes for a compelling emotional argument. Yes, it’s true that the only recourse for defenders of Prop 8 is to say that, while marriage is a fundamental right, gay marriage is not really marriage. But their argument, while not persuasive to me, is at least marginally more plausible than that of the anti-miscegenationists.
As always, the most fundamental issue, underlying all the others, is what one takes to be the purpose of marriage. There are basically two schools of thought: you might call them the procreationist and the emotionalist schools. For the former, marriage can only be between a man and a woman because only that coupling can naturally produce children, and thereby create a family, which is understood as the main purpose of marriage. For the latter, marriage is a social and emotional union, an agreement to provide mutual support, and all it requires, therefore, is two people who love each other.
Notice that, no matter which school you belong to, anti-miscengenation laws are totally unjustifiable. Blacks and whites are of course capable of reproducing together, and all the evidence provided by the wonderfully named Loving couple was that they are capable of emotional bonds as well.
But this doesn’t hold for gay marriage. Only one school of thought regarding marriage’s purpose can underlie support for gay marriage. So, while it is true, as Don says, that supporters of miscegenation cited natural-law arguments, and while this fact should color one’s response to the natural-law arguments currently being put forward to deny gays the right to marry, it is not true that there’s a one-to-one correspondence between the two cases.
The federal courts could uphold Proposition 8 (a result I abhor) without “tossing into the dustbin the reasoning that the Supreme Court used in Loving.” In Loving, the Court recognized that single-race couples and mixed-race couples were in perfectly analogous situations, and like cases ought to be treated alike. It’s less obvious that heterosexual and homosexual couples are also analogues of one another. It all depends on what you think marriage is for.
Photo credit: Flickr stream of Dave Schumaker