To Have and to Hold: Property and State Regulation of Sexuality and Marriage


In the 1967 decision Loving v. Virginia, the Supreme Court ended centuries of state prohibition of interracial sexual relationships. In Loving, the Court admitted that anti-miscegenation laws, which criminalized interracial sexual contacts and marriage, had contributed to the systemic subordination of people of color. In order to regulate marriage between whites and people of other races, anti-miscegenation laws defined who would be considered “white” and “black” by the state. This categorization allowed the larger legal system to allocate and deny rights according to racial labels. By policing the borders of racial categories, anti-miscegenation laws promoted the fiction of naturalized races, providing an ideological foundation for racial hierarchy, and thus insulating white privilege. Loving was a landmark decision because the Supreme Court for the firsttime acknowledged that racial categorization institutionalizes racism.

Today, the spirit of Loving is mocked by the existence of sodomy laws sand the legal ban on lesbian and gay marriage. Laws regulating same-sex intimacy categorize individuals on the basis of sexual identity in the same manner that anti-miscegenation laws categorized on the basis of racial identity. By excluding gay men and lesbians from the definition of the “family,” state regulation of sexual intimacy once again creates a hierarchy on the basis of identity (here sexual orientation) and protects the privilege of being heterosexual. In a system where only heterosexuals have access to tax breaks for married couples, sodomy laws and the ban on gay marriage play a central role in producing the heterosexual/homosexual dichotomy and determining who does and does not “deserve” these benefits.

In Part I of this article, I explore the process of categorization employed by both anti-miscegenation laws and laws banning same-sex intimacy. State regulation of sexual relations among people of different races and people of the same sex has contributed to the production of racial and sexual identities. Legislators have used legal interdictions on sexuality not only to categorize individuals on the basis of race and sexual orientation, but also to provide advantages to those whom the state designated white and/or heterosexual. By comparing the history of anti-miscegenation laws with the current sodomy laws and the ban on gay marriage, I argue that today the state is implicated in “invidious” discrimination against gay men and lesbians in the same way that the state perpetuated racism through anti-miscegenation laws before Loving.

In Part II of the paper I investigate the depth of privilege enjoyed by whites and heterosexuals as a consequence of claiming these identity labels. I characterize this racial and sexual-preference privilege as property. Traditionally, American society has treated private property as sacred, elevating it above intangible privileges such as legal rights. In his book And We are Not Saved, Derrick Bell exposes the centrality of private property in our system of law through a conversation between the members of the Constitutional Convention and a time-traveling black woman from the present day named Geneva Crenshaw. In this dialogue Crenshaw asks the founding fathers to explain their choice of private property over human rights (in deciding not to abolish slavery). One of the delegates quotes Gouverneur Morris of Pennsylvania (an outspoken opponent of slavery) stating “life and liberty were generally said to be of more value than property… [but] an accurate view of the matter would nevertheless prove that property was the main object of Society.”

Since property has been given substantial attention in our society, I will use the concept of “property” to quantify the full range of tangible and intangible privileges of whiteness and heterosexuality. Cheryl Harris has developed a theory that in protecting settled expectations based on white privilege, American law has recognized a property in whiteness. 10 I argue in Part II that the extent of privilege associated with being heterosexual converts heterosexuality into a form of property similar to whiteness. Thus “having” the label “white” or “heterosexual” is analogous to possessing a form of property. I examine both the tangible and intangible aspects of the property gained by being within the dominant racial and sexual-preference group. In addition, I posit that personhood is a form of property that is also distributed according to racial and sexual identity. I contend that one’s sense of self as an individual–one’s humanity–is stolen when one is black, a gay men or a lesbian and is reserved through the law for those who “own” whiteness and heterosexuality.

A story recited by Patricia Williams in her book The Alchemy of Race and Rights illustrates the relationship between identity and personhood. Williams presents a story about a transsexual student, S., who approaches Williams because she has been outcast by both the male and female populations at the school where Williams is teaching. S. goes to speak with Williams about her experience because she feels that Williams would be more understanding since she is black. Williams explains how she is initially put off by the student’s assumption that she would understand S.’s feelings of being a “nobody,” since Williams was in the middle of her own process of coming to define herself as “somebody.” But Williams quickly realizes that an element of her identity as black is “to be part of a community of souls who had experienced being permanently invisible nobodies; ‘black’ was a designation for those who had no place else to go . . .”One message to glean from Williams’ narrative is that there is an element of “nobodiness” that is common to unprivileged identities. State-sponsored racism and homophobia rob blacks, gay men and lesbians of their sense of being a “somebody.” This paper demonstrates how laws that regulate sexuality contribute to the unequal distribution of somebodiness, and as a result, being a “somebody” becomes a form of property.

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