Marriage Demosprudence

Some prominent academics and judges contend that courts are an ineffective and improper means of social change. Recently, this argument came to the fore in debates over same-sex marriage. This Article addresses that claim in the context of interracial marriage. The Article analyzes how family law developed in the two decades preceding Loving v. Virginia, and whether courts precipitated social change. This Article uses the framework of “demosprudence,” or how democratic action legitimates socio-cultural and legal changes, and how these forces interact in the process. Part II describes the historical roots of state anti-miscegenation laws in the eighteenth and nineteenth centuries. Part III focuses on anti-miscegenation law in California, and the landmark 1948 ruling striking down the law. Part IV examines evidence that rulings of the California and Oregon Supreme Court influenced the first post-war anti-miscegenation repeal. Part V assesses the importance of anti miscegenation litigation to legislation in Arizona, Nevada, and Maryland. Part VI unravels themes from legislative action on racial discrimination in marriage in the 1950s and 1960s, and examines the legislative landscape leading up to Loving. Part VII briefly compares the movement to recognize interracial marriage culminating in Loving with the movement to recognize same-sex marriage movement culminating in Obergefell. The Article concludes that the history of how rights for interracial households developed is a strong rejoinder to recent claims that judicial influence in shaping the meaning of family is ahistorical.

The full text of this Symposium is available to download as a PDF.