Calling Out Heterosexual Supremacy: If Obergefell Had Been More Like Loving and Less Like Brown

In 1967, in Loving v. Virginia,' the Supreme Court invalidated state laws that banned interracial marriage. Nearly fifty years later, in Obergefell v. Hodges, 2 the Supreme Court invalidated state laws that banned samesex marriage. That Obergefell represents the modem-day Loving to many gay rights activists3 is thus understandable. Indeed, the majority and dissenting opinions in Obergefell cited Loving numerous times. By contrast, no opinion cited Brown v. Board of Education, the landmark case that invalidated racial segregation in public schools and served as the basis for invalidating all remaining segregationist laws, including the law struck down by Loving. In significant ways, however, Obergefell was more like Brown than Loving. As Part I of this essay argues, Obergefell was more like Brown in that both decisions adopted an appeasing tone, nonjudgmental and plainspoken analysis, and an empathetic recognition of the harm to children and society caused by the discriminatory laws. The Court in Loving, by contrast, was bold, judgmental and legalistic, calling out Virginia for enforcing white supremacy and declaring broadly that all racial distinctions would be subject to strict judicial scrutiny under the Equal Protection Clause. Part II argues that Obergefell should have been more like Loving than Brown in two ways. First, the Court should have called out states that banned same-sex marriage for enforcing heterosexual supremacy. Second, the Court should have declared that all laws that discriminate on the basis of sexual orientation are presumptively unconstitutional and subject to strict scrutiny under the Equal Protection Clause. Part III identifies one way in which Obergefell was appropriately not like Loving but instead more like Brown. Obergefell and Brown empathized with victims of the discriminatory laws at issue. By contrast, Loving failed to express empathy in any significant way for the victims of antimiscegenation laws. Obergefell was right to be like Brown in its empathy and, in fact, Obergefell's empathy was more forceful and effective than Brown's.