Interracial Marriage Litigation Foreshadows what the Obergefell Court Chose to Address

Author:Mark Strasser
Position:Trustees Professor of Law, Capital University Law School, Columbus, Ohio.
Pages:47-57
SUMMARY

The constitutional treatment of interracial cohabitation and marriage foreshadows what the Obergefell Court refused to address and how that refusal leaves certain valid marriages at risk of interstate non-recognition.

 
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INTERRACIAL MARRIAGE LITIGATION FORESHADOWS
WHAT THE OBERGEFELL COURT CHOSE TO ADDRESS
MARK STRASSER*
I.!INTRODUCTION
In Obergefell v. Hodges, the Supreme Court of the United States
addressed whether states m ust issue marriage licenses to same-sex couples
wishing to marry within the state and whether states must recognize same-
sex marriages validly celebrated elsewhere.1 While this was a case of first
impression, it was not as if the Court was writing on a blank slate.2 A brief
consideration of how various state and federal courts have addressed
analogous questions in the context of interracial marriage provides insight
into what the Court chose to address and why.
Part II of this article addresses state and federal case law concerning the
constitutionality of state regulation of interracial marriage and cohabitation.3
Part III addresses the case law regarding the interstate recognition of
interracial marriage, noting that the Supreme Court of the United States has
never addressed the conditions under which marriages celebrated in one
state must be recognized in another.4 The article concludes by noting that
the constitutional treatment of interracial cohabitation and marriage
foreshadows what the Obergefell Court refused to address and how that
refusal leaves certain valid marriages at risk of interstate non-recognition.5
Copyright © 2016, Mark Strasser.
* Trustees Professor of Law, Capital University Law School, Columbus, Ohio.
1 135 S. Ct. 2584, 2593 (2015).
2 While California’s same-sex marriage ban was challenged in Hollingsworth v. Perry,
133 S. Ct. 2652, 2659 (2013), the Supreme Court of the United States held that those
appealing the district court’s striking down the restriction did not have standing and thus the
Court could not address the underlying merits of the differing positions. See id. (“Because
we find that petitioners do not have standing, we have no authority to decide this case on the
merits, and neither did the Ninth Circuit.).
3 See infra Part II.
4 See infra Part III.
5 See infra Part IV.

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