06/13/2012 04:49 pm ET Updated Aug 13, 2012

Loving v. Leviticus

Forty-five years ago this week, in a landmark decision with a wonderfully appropriate name, Loving v. Virginia, the United States Supreme Court declared laws banning interracial marriage unconstitutional.

In those days political and religious conservatives were stoking fears about sex and who would to be permitted to have it with whom.

The more things remain the same, the more they appear to change.

The two most basic axioms of marketing are "sex sells" and "fear sells." Conservatives long ago concluded that the political formula most likely to win elections is a combination of the two: "Sexual fears sell best of all."

The spreading of fears about what some perceive to be "strange bedfellows" has had a strange career. In the 1950s and 60s, many on the political right complained about the courts undermining society through their liberal rulings. The great threat these people perceived a half century ago was "intermarriage" leading to what they termed the "mongrelization" of the white race.

There is still a market for that form of sexual fear -- indeed, one suspects that it is the basis for much of the irrational hatred of President Barack Obama -- but today new wine is being sold in the old bottles.

A different category of strange bedfellows has been the main product being peddled on the sexual fear market in recent years. The Great Fear aroused for political purposes in the mid-twentieth century was "race mixing"; in the early twenty-first century it has been sex un-mixing. Then, it was mixed marriage; now, it is unmixed marriage.

The sort of people who used to denounce the courts still do, but now the great threat they see to God and country is not intermarriage; it is intramarriage. The specter haunting America then was different-race couples; now it is same-sex couples. The contemporary fear about strange bedfellows is less that they will be of different races than that they will be of the same sex -- in short, that the bedfellows will both be fellows.

A half century ago, crossing the color line was intolerable to rightwing Americans; now, it is not crossing the sex line that is intolerable to the same group. The former offense got Emmett Till lynched in Mississippi in 1955. The latter got Matthew Shepard lynched in Wyoming in 1998.

When the Court struck down miscegenation laws in 1967, sixteen states still had laws banning interracial marriages on the books. Today, more than thirty states have statutory or constitutional bans on intrasexual marriages.

"Under our Constitution," Chief Justice Earl Warren wrote in his opinion for a unanimous Court in the Loving case, "the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." The question today is whether the same constitutional argument should apply to the freedom to marry a person of the same sex.

Two decisions in United States Courts of Appeal in the past two weeks, one overturning the 1996 federal Defense of Marriage Act and the other rejecting California's 2008 Proposition 8, which amended the state constitution to ban same sex marriage, make it likely that the United States Supreme Court will face that question in its next term.

Call it Loving v. Leviticus.

Five years ago, on the fortieth anniversary of the decision that bears her name, Mildred Loving said that the same logic of freedom the Court had employed in her case should hold for same-sex marriages as for different-race marriages: "I support the freedom to marry for all. That's what Loving, and loving, are all about."

When President Obama came out in favor of same-sex marriage last month, he identified himself with loving and freedom, not Leviticus and infringement of freedom.

Although the fear of intramarriage may still be sufficient to tip some close elections, polls indicate that its potency is in rapid decline. There are, after all, no worries about "mongrelization" resulting from this sort of union.

The issue is one that exposes the inconsistency of conservatives on matters of government regulation.

Is it not curious that so many people who oppose government regulation of the actions of corporations simultaneously demand government regulation of the actions of our living corpus?

Many conservatives favor having government leave artificial corporate "persons" free to "screw" whomever they want; yet they favor government regulation of real persons' freedom to have sexual relations with whomever they want.

In all of this, they have it just backwards. Government has a proper, though limited, role in regulating the activities that go on in boardrooms; government has no proper role in overseeing the activities that go on in bedrooms -- or in who loves whom and who is free to marry whom.

Indeed, an easy way to determine whether someone is a regressive or a progressive is to ask two questions:

Bedrooms or boardrooms?

Loving or Leviticus?

A slightly different version of this piece first appeared in Politico.