Same-Sex “Marriage” is Not Like Interracial Marriage
by Peter Sprigg
May 27, 2009
On May 27, prominent attorneys Ted Olson and David Boies (best known as one another’s opponents in Bush v. Gore, the court case regarding the disputed 2000 presidential election) announced that on May 22 they had filed a federal lawsuit seeking to establish a right to same-sex “marriage” nationwide under the U. S. Constitution.
In a press release and press conference, they cited as precedent the Supreme Court’s 1967 ruling in the case of Loving v. Virginia, which struck down laws against interracial marriage (Loving v. Virginia, 388 U. S., 12; online ). They claimed that because of this precedent, homosexuals must be “guaranteed the right to marry the person they love.”
However, the U. S. Supreme Court in Loving never described the issue in that case as an unrestricted “right to marry the person they love.” Instead, it said that “the freedom of choice to marry [cannot] be restricted by invidious racial discrimination.”
The comparison between interracial marriage and same-sex “marriage” was concisely refuted in a 2003 Indiana court decision rejecting the claim of a right to homosexual “marriage.” As the judge noted,
Unlike anti-miscegenation laws, restrictions against same-sex marriage reinforce, rather than disrupt, the traditional understanding of marriage as a unique relationship between a woman and a man. Marriage traditionally and definitionally has had to do with the sex of each participant. . . . Anti-miscegenation laws, because they interfered with the traditional marriage relationships in pursuit of opprobrious racial segregation policies, had no legitimate connection to the institution of marriage itself. Loving in no way held that the right to marry means the right to marry whomever one wishes. Its import is far more focused: that whatever else marriage is about, it is not about racial segregation. (Morrison v. Sadler, Marion County, Indiana Superior Court, May 7, 2003; online)
The strong legal basis for the distinction was described by another court that rejected a homosexual challenge to marriage laws, this one in New Jersey:
Plaintiffs’ reliance on decisions striking down statutes that prohibit interracial marriage is misplaced. These decisions derive from Constitutional amendments prohibiting racial discrimination and subjecting laws that classify individuals based on race to the highest level of scrutiny. No similar Constitutional provisions outlaw statutory classifications based on sexual orientation . . . . Comparing the State’s marriage statutes to laws perpetuating racial prejudice, therefore, is inapposite.
Individuals challenging bans on interracial marriage had a powerful weapon: Federal Constitutional provisions, passed by Congress and adopted by State Legislatures, that expressly prohibited States from denying recognized rights based on race. It was entirely appropriate for the courts to enforce those duly enacted Constitutional provisions by striking down statutes that made race a qualifying condition for access to a recognized right to marry. Plaintiffs, on the other hand, assert their claims in the absence of express Constitutional provisions supporting their position, and ask the court to circumvent the Legislative process by creating a right that has never before been recognized in this country.
The mandate for racial equality is firmly enshrined in both the Federal and State Constitutions. Importantly, two amendments to the United States Constitution expressly address racial equality [the 13th and 14th]. . . .
The Supreme Court’s decision in Loving v. Virginia is predicated entirely on the Fourteenth Amendment’s prohibition of racial classifications. . . .
No similar Constitutional provision accords heightened protection to individuals who claim that statutes discriminate on the basis of sexual orientation. . . .
. . . [P]laintiffs . . . lack the significant legal foundation that was available to the plaintiffs in Loving to demand judicial recognition of the rights they seek.
(Lewis v. Harris, Superior Court of New Jersey, Mercer County, November 5, 2003; online )
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Comments
Dear Friends:
I have a question concerning the Court’s ruling on prop 8. Since the Court upheld the will of the people here in California, does a Federal Court have the authority to tell a State what to do as it relates to this issue? furthermore, since even the Federal Government does not even recognized Gay “marriage”, and since we have the Defense of Marriage Act, isn’t it contradictory to go to the Feds when even the Feds doesn’t recognize gay marriage? I really need to know.
Thanks!
Wayne
The enemies of marriage equality keep screaming about how marriage is being “redefined,” or even worse, “DESTROYED.” Nothing could be further from the truth.
For Straight (i.e. heterosexual) Americans, NOTHING about marriage is changing. The vast majority of human beings have always been and always will be Straight. They will continue to date, get engaged, marry and build lives and families together as they always have. None of that will change.
For Gay Americans, the only way that marriage is changing is that what was once off-limits is now starting to be allowed. In Massachusetts, Iowa, Vermont, and eventually the entire country, Gay couples are no longer being relegated to the fringes of society, but are being invited to a place at the table. You can quote Scripture all you want, but from a purely Constitutional standpoint there is simply no justification for denying Gay couples the exact same legal benefits and responsibilities that Straight couples have always taken for granted.
The issue of children is irrelevant, since one does not need a marriage license to make babies, nor is the desire or ability to make babies a prerequisite for obtaining a marriage license. Ask any couple why they wish to get married, and the answer will more likely be because they wish to make a solemn commitment, in the presence of friends and family members, to one another’s support and happiness. Gay couples understand and support this.
While it would certainly be satisfying to write an emotional diatribe against this sort of blatantly discriminatory interpretation of both the law and the past, I will merely address what I view as the fallaciousness of these legal arguments.
Citing state level court decisions as conclusive evidence of the historic definition of the nature of marriage is an error; the state level courts were responsible for the defense of anti-miscegenation laws. It was because of state level court rulings that Loving v. Virginia was brought to the Federal Supreme Court. It was a state level Virginia court that declared:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
This is an argument similar to many brought against same-sex marriages of today. Clearly the interpretations of the law by every court can hardly be seen as indicative of the intentions of the law, historically accurate, nor timelessly correct.
Secondly, the second court statement is in error. While the 13th Amendment expressly prohibits slavery in the United States, it does not expressly address racial equality. As in the 14th Amendment, what is expressly enshrined in the Constitution is equal rights of all citizens. While this is in fact not argument of the definition of marriage, but the legal recognition of marriages (that will exist whether or not they are recognized by state or federal governments), the very fact that the government issues rights and benefits solely on the basis of a marriage contract between two individuals (apart from any question of parenthood or any other social function of such a union) means that this is violation of a constitution that states:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
I cannot know what the Supreme Court’s decision will be once this case of same-sex marriage comes before it. But I can assert that it would be an abusive interpretation of the constitution to continue to deny the federal recognition that is currently awarded heterosexual couples to same-sex marriages. It would be a disservice to lesbian and gay US citizens like myself who should be protected, not neglected or discriminated against, by the law.
Chuck-
“…but from a purely Constitutional standpoint there is simply no justification for denying Gay couples the exact same legal benefits and responsibilities that Straight couples have always taken for granted.”
Do me a favor. Read the Constitution first. Only then will you be able to accurately detail its justifications concerning same-sex marriage. Otherwise, you are merely spittle-spraying foolish, made-up propaganda.
“Ask any couple why they wish to get married, and the answer will more likely be because they wish to make a solemn commitment, in the presence of friends and family members, to one another’s support and happiness.”
Another false statement. I challenge you to find me ONE couple whose marital aspirations match your inaccurate viewpoint.
Michael-
“This is an argument similar to many brought against same-sex marriages of today.”
Maybe my circular reasoning is not as developed as yours, but I fail to see the comparison. Enlighten me!
“Secondly, the second court statement is in error. While the 13th Amendment expressly prohibits slavery in the United States, it does not expressly address racial equality.”
Stick to your day job, sir. The Thirteenth Amendment is the stepping stone that the Fourteenth Amendment is based on.
In it’s first section, the Fourteenth Amendment formally defined citizenship and protected people’s civil and political rights from being abridged or denied by any state. It also represented Congress’s reversal of the portion of the Dred Scott decision which ruled that black people were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship.
This section was also written in response to the “Black Codes” which the southern states had initiated following the passing of the Thirteenth. The Black Codes were laws that attempted to return freed slaves to conditions not unlike their former by (among other things) restricting their movement and by preventing them from suing or testifying in court.
“the very fact that the government issues rights and benefits solely on the basis of a marriage contract between two individuals (apart from any question of parenthood or any other social function of such a union) means that this is violation of a constitution that states:”
It is in the best interest of the State to facilitate the most proper development of it’s future citizens, which is something that only a heterosexual family can provide. The State (should not) have any role in attempting to legitimize the ‘love’ you share for your partner.
Unfortunately it seems as if your colleague Chuck has backed you into a corner if, as he states, the purpose of same-sex couplings is “to make a solemn commitment, in the presence of friends and family members, to one another’s support and happiness.”
By: gary47 | May 27, 2009 at 9:34 pm
Convenient, isn’t it? You overlook that the trial level ruling in Lewis v Harris was overturned when the NJ Supreme Court ordered substantive equality. “Civil Union” is supposed to be legally indistinguishable from “Civil Marriage”. It isn’t in fact, and that is why the NJ legislature will replace “Civil Union” with “Civil Marriage” in the short term future.