Center for Gender & Sexuality Law
This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are articulated in and through the institution of marriage? What kind of freedom and what kind of equality does the capacity to marry bring forth? In important ways, what we are witnessing today with same-sex couples echoes the experience of another group of new rights-holders almost 150 years ago. To better understand how the gay rights movement today has collapsed into a marriage rights movement, and what the costs of such a strategy might be, the essay looks backward in history to another time when marriage rights intersected with the rights of freedom, equality and dignity of a marginalized population: newly emancipated Black people in the mid-nineteenth century.
Katherine M. Franke,
The Curious Relationship of Marriage and Freedom,
Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First Century Families, Marsha Garrison & Elizabeth S. Scott, Eds., Cambridge University Press, 2012; Columbia Public Law Research Paper No. 11-288
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1712