by Peter Sprigg
June 12, 2015
June 12 has been dubbed “Loving Day.” No, it is not an effort to compete with Valentine’s Day. “Loving Day” commemorates the anniversary of a Supreme Court decision — in the 1967 case of Loving v. Virginia — in which the court declared that state laws barring interracial marriage were unconstitutional. Advocates for redefining marriage to include same-sex couples argue that this case is precedent for striking down state laws that define marriage as the union of a man and a woman.
Richard Loving, a white man, had married Mildred Jeter Loving, a black woman, in the District of Columbia. They later moved to Virginia; but in 1958, police officers entered their house in the middle of the night and demanded to know, “What are you doing in bed with this lady?” Although the Lovings had their marriage certificate hanging on the wall, the sheriff was unimpressed, declaring, “That’s no good here.” The couple was jailed for five days, after which a judge accepted their guilty plea to a charge of violating the state’s anti-miscegenation statute. They were given the choice of spending a year in jail or leaving the state. They chose to return to D.C.— and then filed suit to overturn their conviction. The Lovings were vindicated by a unanimous Supreme Court nine years later.
California’s Supreme Court had already struck down a similar statute nineteen years earlier (Perez v. Sharp, 1948). That court had declared that “the essence of the right to marry is freedom to join in marriage with the person of one’s choice.” Homosexual activists claim that this is precisely the principle that should apply to their efforts to marry a chosen person of the same sex.
There is a certain logic to this argument. Laws against same-sex marriage do restrict a person’s choice of marriage partner, as did laws against interracial marriage. But the flaw in the argument is that no one — not even the most radical advocate of homosexual marriage — is proposing to eliminate all restrictions on one’s choice of marriage partner. Every state forbids marriage to specific classes of people — namely, those who are already married, children, or certain close blood relatives.
The point, then, of the cases on interracial marriage cannot have been that restrictions on marital choice are unacceptable across the board. It was, rather, more specifically that race was not a legitimate basis for imposing such a restriction.
The constitutional basis of the case against the “anti-miscegenation” laws was that they violated the 14th Amendment’s equal protection clause, which states that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Courts have ruled that this does not mean states can never have laws that treat some people differently from others, but those distinctions must have a reason and cannot be arbitrary.
It is worth reading an excerpt from the court’s decision in Loving (citations omitted or abbreviated). This was the conclusion of the Court’s Equal Protection analysis:
The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.
There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they “cannot conceive of a valid legislative purpose … which makes the color of a person’s skin the test of whether his conduct is a criminal offense.” McLaughlin v. Florida.
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
Just in these short paragraphs there are references to “racial discrimination,” “distinctions drawn according to race,” “ancestry,” “racial classifications,” “the color of a person’s skin” — a dozen such references in all. This should be sufficient to demonstrate that Loving was not based on a generalized right to marry “the person of your choice,” but was rather based specifically on the Constitution’s clear prohibition of state-sponsored discrimination based on race.
Advocates for redefining marriage have also argued that same-sex couples have been denied the “fundamental right to marry,” an interest in “liberty” that courts have found to be implicit in the 14th Amendment’s “Due Process” clause, which says that no state shall “deprive any person of life, liberty, or property, without due process of law . . .”
Advocates of marriage redefinition point out that Loving was based on a “due process/fundamental right” argument, not just an equal protection one. True — but here is the entire text of the Court’s fundamental rights analysis in Loving:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, (1942). See also Maynard v. Hill, (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
This part of the opinion was a scant 169 words out of over 2,500 in the decision. However, it, too, makes reference to “racial classifications” and “invidious racial discriminations.” There is thus no reason to believe that Loving forbids classifications on some basis other than race.
Numerous courts considering same-sex “marriage” lawsuits have rejected the Loving analogy. As the judge in a 2003 Indiana case (Morrison v. Sadler) noted, “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… . [W]hatever else marriage is about, it is not about racial segregation.” In contrast, however, “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.”
A Superior Court in New Jersey came to a similar conclusion in a similar case (Lewis v. Harris) in 2003:
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.
In November 2014, a panel from the U.S. Court of Appeals for the Sixth Circuit upheld one-man-one-woman marriage laws in Michigan, Ohio, Kentucky, and Tennessee. It is the appeal of these cases (consolidated under the case name Obergefell v. Hodges) which is now before the Supreme Court.
The Sixth Circuit panel noted another compelling reason for questioning whether Loving provides a precedent for allowing same-sex couples to legally “marry.” In 1972, a case out of Minnesota (Baker v. Nelson), making the same claims for same-sex “marriage” now being asserted, was appealed to the Supreme Court. It dismissed the case “for want of a substantial federal question,” a disposal which provides a binding precedent on all lower courts. It is irrational to claim that Loving established a right to same-sex “marriage,” when the Supreme Court already rejected that argument five years after Loving was decided:
Matters do not change because Loving v. Virginia held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between a man and a woman no doubt [was] thought of … as essential to the very definition of that term.” Windsor, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” a reference to the procreative definition of marriage. Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.
Natural Marriage Builds Bridges, Not Walls
The clear purpose of the bans on interracial marriage was to build walls between two groups of people in society, blacks and whites. Such laws were designed to reinforce a system of racial segregation, keeping the races apart from one another.
In contrast, defining marriage as the union of male and female has exactly the opposite intent and effect. Rather than building walls between two classes of people, it creates a bridge across the most fundamental gap in humanity — the gap between male and female. Bridging the divide of the sexes by uniting men and women in marriage is common to all human civilizations, and serves the good of society.
Interracial marriage does not change the definition of marriage, and laws against interracial marriage had as their only purpose preserving a social system of racial segregation.
Homosexual “marriage,” on the other hand, changes the fundamental definition of the institution, and would form at least three segregated forms of marriage: male-only unions, female-only unions, and opposite-sex unions.
Legally defining marriage as the union of one man and one woman does not burden the institution of marriage. Instead, it preserves marriage’s nature and purpose. Homosexual marriage is not a “civil right,” it is a political demand that should be denied.
Note: Portions of this post were excerpted from Peter Sprigg’s book Outrage: How Gay Activists and Liberal Judges are Trashing Democracy to Redefine Marriage (Washington, DC: Regnery Publishing, Inc., 2004).