Posted by
aaglaas on Thursday, February 19, 2009 4:51:33 PM
For the people who are angry that 3 separate U.S. Supreme Courts have come up with almost identical rulings in favor of the rights of gay Americans to marry each other, with more to follow... and who want this issue put to a 'popular' vote, you are incorrect in your assumption that this is an issue that can currently be allowed to be decided by 'the People' when the people ignore the constitutional requirements of equality for all citizens because they have been falsely taught to hate people who are homosexual and/or to think that they are somehow less than human, or deserving of equality.
Here is a brief synopsis of some of the abuses of the law in our history over this subject:
Today, when one out of every fifteen American marriages is interracial, many people are surprised to learn that laws prohibiting interracial marriage (otherwise known as miscegenation laws) were so deeply embedded in U.S. history that they would have to be considered America's longest-lasting form of legal race discrimination--they lasted far longer than either slavery or school segregation. All told, miscegenation laws were in effect for nearly three centuries, from 1664 until 1967, when the U.S. Supreme Court finally declared them unconstitutional in the Loving decision.
One of the first things defeated white Southerners did at the end of the Civil War was to pass new, and stronger, miscegenation laws as part of their infamous black codes. Determined to overcome Southern resistance, the federal government built its Reconstruction program around the promise of equality, then embedded this promise in the language of the Fourteenth Amendment to the U.S. Constitution, which guarantees all citizens "equal protection" of the law.
But it soon became apparent that Reconstruction would not survive long enough to become a turning point in the history of miscegenation law. As Reconstruction collapsed in the late 1870s, legislators, policymakers, and, above all, judges began to marshal the arguments they needed to justify the reinstatement--and subsequent expansion--of miscegenation law.
Here are four of the arguments they used that are identical to the ones being used now to argue against allowing gay citizens to marry:
1) First, judges claimed that marriage belonged under the control of the states rather than the federal government.
2) Second, they began to define and label all interracial relationships (even longstanding, deeply committed ones) as illicit sex rather than marriage.
3) Third, they insisted that interracial marriage was 'contrary to God's will.'
4) Fourth, they declared, over and over again, that interracial marriage was somehow "unnatural."
On this fourth point--the supposed "unnaturality" of interracial marriage--judges formed a virtual chorus.
Here, for example, is the declaration that the Supreme Court of Virginia used to invalidate a marriage between a black man and a white woman in 1878:
The purity of public morals," the court declared, "the moral and physical development of both races….require that they should be kept distinct and separate… that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.
The fifth, and final, argument judges would use to justify miscegenation law was undoubtedly the most important; it used these claims that interracial marriage was unnatural and immoral to find a way around the Fourteenth Amendment's guarantee of "equal protection under the laws." How did judges do this? They insisted that because miscegenation laws punished both the black and white partners to an interracial marriage, they affected blacks and whites "equally." This argument, which is usually called the equal application claim, was hammered out in state supreme courts in the late 1870s, endorsed by the United States Supreme Court in 1882, and would be repeated by judges for the next 85 years.
During the late 19th century, this judicial consensus laid the basis for an ominous expansion in the number, range, and severity of miscegenation laws. In Southern states, lawmakers enacted new and tougher laws forbidding interracial marriages. Seven states put miscegenation provisions in their state constitutions as well as in their regular law codes, and most raised criminal penalties to felony level. In Florida, for example, the penalty for interracial marriage was a maximum of 10 years in prison; in Alabama, 2-7 years. Meanwhile, western states set off in a new direction by expanding the racial coverage of the laws. A dozen states passed laws prohibiting whites from marrying American Indians; a dozen more targeted Asian Americans; nine targeted Filipinos.
In 1948, the Supreme Court of California took a giant step toward ending the regime of miscegenation law when it broke an sixty-five year string of post-Reconstruction judicial precedents and declared California's miscegenation law unconstitutional. Speaking for a deeply divided court, Justice Roger Traynor flatly rejected the shopworn claim that miscegenation laws applied "equally" to all races. "A member of any of these races," Traynor explained, "may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable." "Human beings," he continued, "are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains."
"The right to marry," Traynor insisted, "is the right of individuals, not of racial groups." Nineteen years later, in 1967, in the case of Loving v. Virginia, the United States Supreme Court agreed, this time in a unanimous decision written by Chief Justice Earl Warren. "There can be no doubt," Warren wrote, "that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." Denying the freedom to marry solely because of sexual orientation or identity is equally as unconstitutional as doing so because of race.
The Loving decision spelled the formal end of America's three-century-long history of miscegenation laws, though opponents of interracial marriage didn't give up overnight. Alabama, for example, waited until the year 2000 to remove the miscegenation provision from its state constitution.
By and large, however, Americans adjusted remarkably quickly to the new judicial consensus that interracial marriage, like marriage itself, was and is, as Earl Warren had insisted in Loving, "a basic civil right."
When the campaign for same-sex marriage succeeds, it will be not only because of the efforts of lesbian and gay activists but because of the civil rights advocates (black, white, Asian American and American Indian) who spent so much of the twentieth century working to put an end to America's shameful tradition of these type of disriminatory laws.