Supremacy by Law: The One Man One Woman Marriage Requirement and Antimiscegenation Law

摘要

This article is concerned with epistemology and the assertion of supremacy. Focusing on the resources deployed to make marriage restrictions logical, this article investigates their descriptive and structural underpinnings. I juxtapose support for the Defense of Marriage Act and Federal Marriage Amendment with antimiscegenation case law and examine descriptions of fact, the patterns they shape, and the underlying structure that holds them together. These laws are an arena of contestation not only over policy choices but over God and nature, and ultimately difference. I pay attention to the ways in which constructions of difference work to exclude and erase and I argue that these laws share a common structure of supremacy. Dualistic constructions of difference work to erase those whose bodies threaten the clear lines that justify exclusion by law. Those who are multiracial, where whiteness is a contributor, and those who are bisexual represent such a threat to racial marriage bans on the one hand and same sex marriage bans on the other. The formula of difference-making, erasure, and supremacy in law has important implications not only for challenging marriage restrictions today but to measure future law and policy.