Opinion: DOMA, Loving v. Virginia and anti-gay marriage laws

Sometimes love is very inconvenient and the heart follows it’s own course in spite of conventional wisdom.   We don’t always choose who we love and this is especially true for those who find themselves in love with someone others find inappropriate.  It’s even more true for those who find themselves attracted only to members of the same sex.  Gay couples are not the first group of people to find themselves bucking convention, tradition and especially religious thought when it comes to matters of the heart and they aren’t the first to fight the law over the issue of who can and can’t marry.

In 1959, Richard and Mildred Loving found themselves in more than a religious confrontation over  loving each other, they found themselves in jail.  Their crime?  They were an inter-racial couple and the state of Virginia in it’s “wisdom” deemed their marriage a felony.

At one time 30 states had anti-miscegenation laws and 16 of them kept them on the books until the Supreme Court deemed the laws unconstitutional because of their violation of the 14th Amendment.1

After marrying in Washington, D.C., Richard and Mildred Loving were arrested in the early morning of July 11, 1959 when they were removed by police from their bed in their Virginia home.  Under Virginia’s Racial Integrity Act of 1662 the Lovings were charged with  and pleaded guilty to a felony.  They were sentenced to a partial exile from their home state but eventually were allowed to return home SEPARATELY.  The judge, who was no great believer in separation of church and state, stated in his ruling:

“Almighty God created the races white, black, yellow, malay and red, and he placed them in 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 show that he did not intend for the races to mix.2

Yes, such reasoning probably seems absurd to most of us, although white supremacists might agree with the judge.  Can you imagine a judge today trying to justify the anti-miscegenation laws with such tripe?

Ms. Loving wrote to Attorney General Robert F. Kennedy for help. He referred her to the American Civil Liberties Union who took the case. They lost at the Virginia Supreme Court of Appeals, but appealed to the US Supreme Court. In 1967, the court unanimously overturned the Virginia law and similar miscegenation laws of 15 other states. Persons of different racial backgrounds have been able to marry throughout the US ever since. 3

The United States Supreme Court heard Loving v. Virginia and it’s ruling stated:

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, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (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.

These convictions must be reversed.

It is so ordered.4

If one wanted to make a ridiculous case for taking this ruling literally we could argue that only men were recognized as being guaranteed the right to marry…..of course that isn’t what the Supreme Court meant at all, but then again I doubt if God literally meant for the races to stay separate for all time.

To get a better understanding of the U.S. Supreme Court ruling in Loving v. Virginia one must look to the 14th Amendment, which states:

14th Amendment, Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. 5

Just as the 14th Amendment doesn’t use the terminology “white people who marry white people” when defining who the citizens are that are to be afforded the equal protection of the law, it likewise doesn’t state “heteroseuxals”.  In fact the 14th Amendment uses the inclusive language ALL PERSONS and ANY PERSON.  All as far as I know ALL means ALL, no exceptions, and ANY means ANY, no exceptions.  Now, unless one is inclined to argue the meaning of all and any and be in danger of repeating Bill Clinton’s mistake of arguing the meaning of is, one must come to the conclusion that ALL does in fact mean ALL and ANY does in fact mean ANY.  There is absolutely no qualifier that would allow for the Christians of the country to exclude any group from the language of ALL and ANY  to deprive ALL or ANY from the right  of life, liberty, or property….

How is it that the people who proclaim the loudest to love this  country, the constitution and life, liberty and pursuit of happiness are the very ones who are so eager to deny homosexuals the rights granted to them equally under the 14th Amendment of the Constitution?  Wow, talk about cognitive dissonance.

For those who might think that I put all the blame on the conservatives for the denial of constitutional rights to homosexuals, let me say that a good portion of blame belongs to Bill Clinton for signing DOMA…or the Defense of Marriage Act.

DOMA, is the short title of a federal law of the United States passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. The law has two effects:

  1. No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
  2. The federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

The bill was passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives, and was signed into law by President Bill Clinton on September 21, 1996.7

Of course, DOMA hasn’t gone unchallenged and it’s constitutionality has been appealed to the U.S. Supreme court several times but the Court has declined to review any of the appeals.That refusal is rather odd given the number of people affected by the issue and the strife it is causing except when it is viewed in light of the ruling the same Court made in the Loving v. Virginia case.  Let’s go back and take another look at what the U.S. Supreme Court had to say in Loving v. Virginia:

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.

I would hope that we can all agree on the fact that homosexuals are in fact free men (and women) and in that court decision no exception to the rule was given.  Were the Supreme Court to hear the appeals on DOMA they would, in my opinion,  have to do one of  two things….risk alienating the right by ruling DOMA and all state laws banning gay marriage as unconstitutional, OR reversing themselves and making an exception to the previous ruling that recognizes the freedom to marry as one of VITAL personal rights afforded to FREE men, possibly outraging the left and minorities.

To hear an appeal is to admit there is no middle ground such as the one that California tried to take by banning gay marriage while recognizing the gay marriages that took place during the short period of time that it was legal in California.  In fact the Supreme Court’s refusal to hear the appeals are an egregious act of cowardice and one that leaves the gay citizens of this country in limbo and the issue up for court battle after court battle on the state level.

As I sit hear writing this I can almost hear the chomping of the bit by those who want to scream at me how I don’t understand what the Bible says.  Let me assure you that I do.  But, I don’t think religion is the basis for our laws and I believe firmly in the separation of church and state.  I think using religion to make laws ends in disaster and a state like Iran.

I was sent an op-ed piece that appeared today in the Roanoke Times (Roanoke, VA).  The piece is titled Barring gays isn’t what’s needed to ‘save marriage’ and was written by Paul R. Hinlicky.   Hinlicky is Professor of Lutheran Studies at Roanoke College.  In the piece were a couple of points I found of particular interest as both points were similar to points I have made at one time or another.  Hinlicky hails the California Supreme Court ruling as “for the sake of democratic self-governance” (a point with which I disagree), but he goes on to say that he does not “celebrate the court victory for those claiming to defend traditional marriage.”

Where Professor and I agree is on the idea that “saving marriage” does not end or begin with opposing same sex marriage….it begins with making divorce and it’s causes the focus of saving marriage.  Another point he makes is:

Could not the gay marriage movement be understood as a socially conservative one, that is, as aimed at an ordered and publicly accountable sexual life analogous to Christian marriage?8

I absolutely agree and I go a bit further.  I am of the opinion that in order to do the best to ensure as stable of a society as possible we should encourage stable, monogamous relationships within the homosexual community and I think the best shot at that is by allowing gay marriage.

I believe the religious argument against gay marriage  has as little chance of prevailing as the religious justification cited by the state of Virginia in Loving v. Virginia , and I do not believe is should prevail.

Fortunately for the reader, (because I could go on and on with different points), I have decided to close with the following from Mildred Loving – a statement she made in 2007 on the 40th anniversary of the Loving decision:

“My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.”

“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.”

“I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”9

And to that, Mrs. Loving, all I can say is AMEN.

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15 Responses to Opinion: DOMA, Loving v. Virginia and anti-gay marriage laws

  1. Wizcon says:

    I happened to watch “Showboat” yesterday where there this is addressed as well. This is very well done Sage.
    Back in the 60′s, I watched gay freinds struggle with staying in or out of the closet and watched one get a horrible beating. Now in my business, I watch couples struggling to set up their households to get essentially the same rights as hetro’s as a family. Many state laws have provisions that wink at what should be their civil liberties, but provided twisting obstacle courses to those rights.

  2. skyagunsta says:

    I remember living in Jackson, Mississippi in the 1960s.

    I remember the day James Meredith went to see Gov. Ross Barnett to request admission to the University of Mississippi and I remember the rows of people lined across the street chanting James Meredith down. I remember the priests from the chancery not far away scandalized by all the public hatred of Meredith and blacks. I remember also those, “White Only” and, “Blacks”, signs posted over water the fountains and restrooms at the bus depot.

    And, I remember a trip my husband and I took by train in 1976, when our son was 1 year old, to visit my father in Tennessee … there was a bi-racial couple on the train who decided to take separate seats on the train after the train entered a state (whether alabama, or tennessee itself) for fear that they would be arrested if seating together on the train. The couple was headed to Washington, D.C. or some other other state in the American N.E.

    And … I lived in an apartment complex, also in the l970s, where two Gay University profesors lived together… when one of them died the other one’s life seemed to become so unbeareably lonely…

    It is sad how we can turn fear and ignorance into prejudices and prejudices into roadblocks for other people.

    Thank God for the good souls and understanding people we, all of us, find along the way… I know I thank God for all of the good souls and understanding people I have found along my own life’s journey, and usually those are the people who tend to pause and think rather than react and push emotionality to the boiling point.

  3. SC says:

    Will gay marriage threaten liberty in America?

    Sage Reply:

    No it doesn’t threaten liberty. What threatens liberty is discrimination. Of course some people are only interested in life, liberty and the pursuit of happiness for the subsection of society in which they fit and to hell with everyone else.

    Allow gays to marry doesn’t affect heterosexuals….they aren’t going to be forced to be gay or marry a gay.

  4. 2fewfactsaround says:

    Beautiful, Sage. I hope this gets wide circulation.

  5. Barga says:

    I would like to point out that DOMA was not needed, Loving V. Virginia was about racial marriages, and a more recent court case ruled that it did not apply to gay marriages

    that said, we all agree equal benifits under the government

    Sage Reply:

    Your information is worthless without a source. And IF it was ruled that Loving v. Virginia could not be construed to apply to gay marriage the ruling is cowardly and full of shit.

    Seriously, you referenced Plessy v. Ferguson incorrectly on another thread. You need to post some kind of links to things you want to argue. I don’t have time to do my research and yours.

    barga Reply:

    I referenced it incorrectly, how did i do that?

    Cases refer only to THE SCOPE of the case, not to anything else. You are applying outside of the scope in a clearly different issue

    Sage Reply:

    Scope schmope, it doesn’t change what they said about marriage being a vital personal right. If they state in Loving v. Virginia and Meyer v. Nebraska that marriage is a right then it’s a right for everyone who is a citizen of the United States, otherwise they shouldn’t have included that statement in the cases. There were no qualifiers in the language to limit the statement to scope.

    barga Reply:

    Um, no, scope is exceptionally important
    it is why there are hundreds of cases on abortion, not to overturn, but to hit a new aspect
    same with religion
    and everything else

  6. taoofterri says:

    Great post, Sage. I seem to remember over a year ago a student confronted Karl Rove during a Q & A (sorry, I don’t remember the college or the student’s name) and asked him (paraphrasing) how gay marriage would affect him. Rove started some long windy generalization and the student interrupted and pressed him further…how would gay marriage affect him personally. If I remember correctly, Rove could not answer the question and moved on to another student’s question.

    I agree with you. Allowing gays to marry does not in any way affect heterosexuals or our marriages.

    Sage Reply:

    Thanks terri. I think it upsets a lot of people who self-righteously believe they are morally superior.

  7. Pingback: Miscegenation: Loving v. Virginia | Spirit of a Liberal

  8. Obie Holmen says:

    I have referred to your post and linked to it from my own blog at:

    http://www.theliberalspirit.com/?p=620

    Sage Reply:

    Thank you for the link.

Comments are closed.