A legal history lesson in the same-sex marriage debate

Supreme Court
by Mary Reichard
Posted 11/24/14, 02:05 pm

Last week, the U.S. Supreme Court processed another ruling on the question of same-sex marriage. It let stand a federal judge’s decision ordering South Carolina to issue marriage licenses to same-sex couples. That makes 34 states that grant marriage licenses to same-sex couples—a few by way of democratic means, most by way of judicial orders.

That’s a remarkable number in just 10 years’ time, since Massachusetts became the first state in which courts overturned a constitutional amendment defining marriage as between one man and one woman. But the judicial shift goes back almost 50 years to a 1967 case that proponents of redefining marriage are using to secure victory. It hadn’t occurred to any serious legal scholar at the time that a case affirming the plain meaning of marriage would wind up as the basis for an argument affirming the opposite.

A landmark decision almost half a century ago that threw out a Virginia state law barring interracial marriage rested on an assumption no one needed to talk about: Marriage is the union of one man and one woman. The question that needed testing in the courts, though, was whether skin color mattered. The case concerned Richard Loving, a white man, who married Mildred Jeter, an African-American woman.

The racial overtones in Loving v. Virginia would shock modern ears and offend a biblical understanding that people are made in God’s image.

“We submit that race as a factor has no proper place in states’ laws governing whom a person by mutual choice may or may not marry,” said lawyer William Muritani, arguing for Loving. 

After Loving and Jeter wed in Washington, D.C., they returned home to Virginia. There, the couple’s marriage ran afoul of the state’s anti-miscegenation law, a rule forbidding opposite-race couples from marrying. Found guilty of violating that law, the court sentenced the Lovings to a year in jail unless they agreed to leave Virginia for 25 years.

Those fighting to redefine marriage frame the issue along these same lines: If a state may not forbid consenting adults from marrying because of their race, then why may it forbid a marriage between two consenting individuals because of their sexual identity?

Another Loving attorney, Philip Hirschkop, also pointed out that if Virginia’s anti-miscegenation law stood, the couple would lose their insurance, Social Security benefits, and “numerous other things to which they’re entitled.” Hirschkop compared the laws to slavery laws, which had one purpose: to hold African-Americans to a lower social position. Same-sex couples borrow this argument, claiming the aim of marriage laws is to keep down gays and lesbians.

Justices raised questions in the Loving case that echo today in courts debating same-sex marriage, like, where can states draw the line?

“Surely there’s some limit on that,” Justice Potter Stewart said in Loving. “I suppose you would agree that a state could forbid a marriage between a brother and a sister, wouldn’t you?”

In the end, the opinion was unanimous that laws prohibiting interracial marriage violated both the equal protection and due process clauses of the Constitution. Chief Justice Earl Warren wrote in the opinion “[The Constitution] 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.” 

And that argument is what advocates for redefining marriage use as their goal post. From a legal point of view, it follows, but only so long as the premise is correct that race is no different from homosexual practice. That’s a premise that has nothing to do with law and everything to do with worldview.