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

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.