Wednesday, July 26, 2006

The State of Gay Marriage: Historical Perspective

July has been a rough month for the gay rights movement, with significant marriage-related losses in New York, Georgia, Tennessee, Nebraska and Washington.

But LGBT people and fair-minded supporters should not be overly discouraged by, nor should opponents of equality take any comfort from, a string of court rulings that, more or less, rely on the insupportable supposition that heterosexual marriage and procreation – indeed, as the plurality in the Washington decision put it today, “limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race” – is threatened by legal recognition of existing same-sex partnerships.

In 1948, California became the first state where a court overturned a prohibition on interracial marriage. The dissent in that decision is well worth reading in light of the more recent anti-gay rulings.

A sampling of phrases from that dissent finds objections to miscegenation that, when references to race are replaced with sexual orientation, are identical to opinions being put out by the courts today.

“Such laws have been in effect in this country since before our national independence and in this state since our first legislative session. They have never been declared unconstitutional by any court in the land although frequently they have been under attack. It is difficult to see why such laws, valid when enacted and constitutionally enforceable in this state for nearly 100 years and elsewhere for a much longer period of time, are now unconstitutional under the same Constitution and with no change in the factual situation. It will also be shown that they have a valid legislative purpose even though they may not conform to the sociogenetic views of some people.”

“The right of the state to exercise extensive control over the marriage contract has always been recognized. The institution of marriage is the foundation of society, and the community at large has an interest in the maintenance of its integrity and purity. Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to control of the legislature.”

“Twenty-nine states in addition to California have similar laws. Six of these states have regarded the matter to be of such importance that they have by constitutional enactments prohibited their legislatures from passing any law legalizing marriage between white persons and negroes or mulattoes. Several states refuse to recognize such marriages even if performed where valid.”

“The argument based upon equal protection does not take into proper account the extensive controls the state has always exercised over the marriage contract, nor of the further fact that at the very time the Constitution of the United States was being formulated miscegenation was considered inimical to the public good and was frowned upon by the colonies, and continued to be so regarded and prohibited in states having any substantial admixture of population at the time the Fourteenth Amendment was adopted….It seems impossible to believe that any constitutional guaranty was intended to prohibit this legislation.”

I’m not aiming to fully equate the struggle for racial equality in America with the LGBT civil rights movements, as clearly the experiences of each group are not wholly analogous. Still, it’s helpful to see that the legal shell-game practiced by social conservatives with the aim of squelching fairness and equality hasn’t changed in sixty years.

The California case, Perez v. Sharp, was not the first anti-miscegenation lawsuit. In fact, as the dissent heartily points out, similar suits had recently failed in Arizona, Colorado, Montana, Virginia, Indiana, Arkansas, Tennessee, Texas and Pennsylvania.

More importantly, it took another nineteen years before the Supreme Court declared all anti-miscegenation laws unconstitutional. The battle for marriage equality is far from over, but already we can see clearly how it will end. Justice will prevail.

34 comments:

Jade said...

I was saddened when I heard the news come out of Olympia on this case... they have been debating about it for months and I really thought it was going to be a victory.

Anonymous said...

Ever think about becoming an attorney or a paralegal? You're astute and articulate.

sattvicwarrior said...

great post Ive been with my partner for 43 fantastic wonderful years. . I dont give a damn about a " marriage contract. just give us EQUAL RIGHTS!!!!!!!!!!!!!!!
thanks for sharing

little-cicero said...

I'm with sattvicwarrior! (no, not that way)

Question: Do you find the interracial marriage rights movement analogous in that somehow the definition of marriage was preventing blacks from marrying whites. By definition I mean legal and otherwise. First, were they legally prevented from getting marriage contracts because their partnerships didn't fit "between a man and a woman with the same color" Secondly, were whites protecting the universal definition they held dear, or were they just trying to prevent misogenation. This would be comparable to gay marriage if it was gay sex that anti-SSM activists were preventing, but that is not the case for most of us.

This apparent difference in the rational versus irrational bases for in effect preventing gay marriages seems to me to more than a little significant when you're comparing in any capacity the two "civil rights" struggles.

little-cicero said...

Oh, and for those of you who might assume that I'm stupid because I misspelled miscegenation...

little-cicero said...

Are you giving me the silent treatment? Grrrr.

Andy said...

No, I've just been under a LOT of stress lately and have been spectacularly uninspired.

Andy said...

No, what I find analogous are arguments from each excerpted paragraph, summarized below.

1) The discrimination in question is traditional, stretching back to and before the birth of our own nation, and is widely shared; therefore it's justified.

2) The court can abdicate its Constitutional responsibility to protect the civil rights of minorities as long as it can cite a rational basis for doing so, in which case it must defer to the legislature. Seriously, read this dissent. You'll find rational bases such as this: In the absence of any uniform rule as to consequences of race crosses, it is well to discourage it except in those cases where, as {Page 32 Cal.2d 757} in the Hawaiian-Chinese crosses, it clearly produces superior progeny, and that the Negro-white and Filipino- European crosses do not seem to fall within the exception. That's every bit as logical as saying heterosexuals are encouraged to raise children in committed relationships only as long as gay people are not given permission to do so.

3) A majority of Americans is opposed (again, ignoring that in a true democracy, the majority does not determine the rights of the minority, that's why we have the Equal Protection Clause, among other things).

4) Equal Protection was not intended to apply to "negroes and mulattoes"...or apparently homosexuals...by its authors, therefore it cannot apply today.

I wish you'd leave this "definition" thing alone, Little Cicero. The question is, is the current definition of marriage (yours) constitutional? Answering by saying "it is, because that's the definition of marriage" is nonresponsive to the initial inquiry.

The point here is that the courts today, as they were in the past, are putting forth the same technical mumbo jumbo in order to perpetuate discrimination.

kr pdx said...

"No, I've just been under a LOT of stress lately and have been spectacularly uninspired."

:(.

little-cicero said...

1) As far as legal definitions, those definitions were CHANGED by rascists in the late 19th century to prohibit blacks and whites from marrying. The definition of marriage directly after the civil war clearly allowed interracial marriage, and had to be altered in order to segregate marriage. This is a HUGE difference you don't acknowledge- that the definition of marriage wasn't groundbreakingly changed to allow those marriages- rather former alterations were revoked to revert to the definition "between a man and a woman" through cases like Loving.

2) That is an attempt at a rational basis, but it obviously is not one- I can solidly prove so. When the judge refers to "superiority" in interracial offspring, he is using it as a basis when you can't prove superiority in a legalistic manner. You cannot prove that this boy is better than that boy because that boy "looks funny". The basis of procreation, while I don't necessarily advocate it as it leads to so many potholes (SSC adoption) is clearly a rational basis, not based on the racial opinions of judges.

3) In the Old South I'm sure a majority would be against both interracial and SS marriage, but in a nationwide vote, the results would differ. This brings up a good point as to why a Federal Amendment is a better idea than Statewide Judicial Rulings- because regional mindsets can get in the way of Strict Constructionism- a tendency which is balanced in a nationwide vote.

4) Equal Protection applies to homosexuals in every case concerning civil and human rights, the only possible exception being marriage.

Black and white marriages fit into the legal definition of marriage- homosexuals do not.

Andy said...

Boy, that sounds an awful lot like the way conservatives have been rushing to pass legislation, including constitutional amendments at the state and federal levels, to "define" marriage as between a man and a woman BECAUSE THE LAW DID NOT HISTORICALLY DEFINE IT THAT WAY, that's just the way it has been interpreted.

Andy said...

PS, talk about not acknowledging things: you're the one studiously avoiding the idiot rationale that allowing me to marry my partner will make you less interested in having children inside a committed relationship.

kr pdx said...

LC, Andy is ahead of me if he is following your thought processes, because I'm not. I'm not trying to be obnoxious, but you really lost me about two weeks ago--you keep saying things that I almost follow, but there are a few very important pieces I missed or you didn't include.

Can you clearly state:
1) What do you think is the legal definition of marriage? (ie, what definition are you trying to defend--not why, or from what, but what is the actual definiton?)
2) Where in our law(s) does that appear/do you think it is implied/should it appear? (ie, what legal standing does it traceably have in our legal system?)
3) What is the basis(/are the bases), according to your understanding, of the definition of marriage you are defending? (legal, traditional, religious, philosophical, psychological ... you have touched on all of these things in passing, but I know from your blog that you like to stack up a tidy pile of reasoned thought ... let's see it!)

Right now I feel like you are operating as if a bunch of your assumptions are so obvious they don't need stating ... and let me tell you, they aren't. Myself, I have yet to hear anyone (anywhere, not just in the blogs, not just you) give a rational support for MF-exclusive modern (not-procreationally-focused) marriage that didn't involve religion.

It is this complete lack of secularly acceptable, coherent, rational support that makes the only logical position (in my perception, in our timeplace) to
1) admit that legal modern marriage has more to do with legal protections for the partners (and family if such exists) than with either childrearing or love ... and
2) make the laws reflect accurately that functional reality. Traditional MF marriages are too easy to get into for the value of the protections they give rights to, and lots of other pairs of people (not just SSM-potentials) who need those protections have a hard or impossible time gaining them--the legal disequality seems very very clear (and hard to justify) to me. I would call all legal pairings with the traditional set of protections "civil unions."

Perhaps there should be a separate category of protections, as was recently suggested here, for -with-children people (single or civil-unioned).

Andy said...

KR, LC's argument is perfectly clear. See here: Equal Protection applies to homosexuals in every case concerning civil and human rights, the only possible exception being marriage.

See that? Equal Protection applies to everyone and in every situation...except gay people who want to get married for the very good reason that the definition of marriage does not include gay people. I don't understand what you're not getting here.

/snarkily

Andy said...

Oh, errrm...LC might also want to add, "Except the right to serve openly in the military," which he maintains is actually for the protection of gay people, so they don't get harassed by homophobes, which still leaves me wondering why it's the gay people who get discharged.

little-cicero said...

KR, this is very important- in I believe 45 states in the union, State Constitutions have attached legal definitions of marriage by which officials can execute marriages, since you can't execute an institution without defining it. If you Google "statutory definition of marriage" you'll find these statutes, which are constitutionally protected until augmented by further legislation or judicial rulings. Those rulings, which conservatives of my ilk call "judicial activism" are truly "redefining marriage" in this way. It is only incidentally that the traditional/religious definition is changed when society accepts gay marriage, and my argument is not based in that redefinition, nor is Andy's. I know better than to argue on the basis of tradition.

Andy- Good to see that I'm making my self clear, for I'd rather be wrong with clarity than right without clarity!

As I said, in the military thing, you are not deprived of a right of association or sexual activity, but rather of the right of speech, as in speaking of your homosexuality. As countless precedents may indicate, you cannot shout "Fire" in a crowded building when it serves no purpose. Analogously (very loosely so) you cannot shout "I'm gay" in a barracks when it really serves no purpose. The only way it WOULD serve a purpose is if you're looking for a good time with another gay soldier, which would be prohibited anyways. Since sex is detached from the military realm (theoretically) and homosexuality is a sexual condition, what is the rational basis for protecting the right to pronounce your sexuality in a non-sexual institution? For my basis to be irrational, you have to have a rational basis counteracting my basis.

little-cicero said...

I hope things start clearing up for you soon Andy. This is the first Sunday I can recall when you haven't gotten around to photoblogging. How are your kitties.

Andy said...

The kitties are lovely, thank you. Everything's okay, I'm just sort of in a funk right now.

Jarred said...

LC, your "fire in a crowded theater" is poor at best. First of all, there are further reasons for restricting people from shouting "fire" in a crowded theater than the fact that it serves no purpose. Quite the contrary, the real reason that such an act is prohibited is because it would create a dangerous situation for all people involved. There is no analogous situation to a soldier stating that he is gay. Such a statement does not immediately create a dangerous situation for all people involved. (Unless, of course, you really want to argue that homophobes are really so weak-minded and unstable that they cannot be held responsible for their own behavior that results from discovering someone is gay. And if you do wish to argue that, then perhaps it's the homophobes we should be excluding from the military based on the principle that we really don't want weak-minded or unstable people protecting our citizenry.)

Of course, I would point out that announcing that one is straight (which constantly happens in military dorms, I can assure you) equally fails to serve a purpose. However, such purposeless announcements are allowed without any sort of disciplinary action. Based on that, I'd argue that restricting disclosure of only one orientation is clearly discriminatory.

little-cicero said...

Actually Jarred, my reasoning was exactly as you illustrated- I said in an earlier post that there was rationale in the "don't ask don't tell" in that it protects homosexuals from homophobes. I do find that rational, but I would not if it served any purpose to the individual (equal to or greater than the purpose of not disclosing) to tell others that you're gay. No one ever said "don't ask don't tell" was perfect in its wishy-washy indecisive approach to a divisive issue, but it does bear with it a rational basis in that its basis is more rational than the basis for disclosing one's homosexuality.

little-cicero said...

By the way, I'm not sure men actually advertise that they're heterosexual. I think what you're referring is their tendency to speak of their sexual exploits. However, Andy has revealed at points his opinion, if I'm not mistaken, that sexual preference has nothing to do with sexual exploits. In other words, just because Peter has sex with Maria, that does not mean that either Peter or Maria is heterosexual, if Peter's preference was sleeping with Paul and Maria's preference is sleeping with Jane. I'm not sure if that's your opinion, but in that context you have every right to advertise your homosexual exploits in a barracks, you just can't disclose that you preferred gay sex to straight sex. Of course, I'm not sure what the courts' rulings are on the definition of homosexuality, whether it's preference or orientation...

Andy said...

Truly, you have a dizzying intellect.

You're not sure men advertise that they're heterosexual? You haven't hung around any construction sites, have you?

Jarred said...

LC, you conveniently ignored my response to that argument. I maintain that a far more rational response to protecting gays from homophobes is to make homophobes responsible for their actions. If homophobes cannot control their urges to hurt gay and bisexual people, than it is the homophobes that should be removed from military service. Telling gay and bisexual people to just keep quiet so they don't get hurt is nothing more than another case of blaming the victim rather than holding the wrongdoer accountable. Honestly whatever happened to all that talk about "personal responsibility"? Or do homophobes get a pass on that?

As for your dizzying logic, it seems to me that you're trying to take one of Andy's comments out of its original context in order to twist it to defend your position. (Indeed, if that is your best defense, it's time to reevaluate the merits of your position and seriously consider revising it.) While it is true that sexual orientation is not synonymous with sexual exploits, it is undeniable that sexual exploits are a strong indicator of a particular sexual orientation. After all, if Paul's numerous exploits all involve women, it's pretty reasonable to conclude that he is indeed straight. If he brags about those numerous exploits, it's as good as admitting that he is straight. Similarly, no one is seriously going to assume that Peter is straight if he's always talking about the guy he picked up at the local gay bar. Indeed, I find your attempt to split hairs to be silly at best and downright disingenuous at worst.

little-cicero said...

If I seemed to ignore your response, I apologize. Reason # 1: I was trying to keep my argument concise.

Reason # 2: I take for granted that gay bashing should be punished ferociously. If you think otherwise of me, I'm more than a little insulted. The problem with that argument is that it is all post-violence. The ideal is to avoid gay-bashings, not simply punish them. Also, it's not as if you're punishing victims because they were gay-bashed- if someone is in a gay-bashing, they aren't punished for being gay, rather they are treated as if they were simply bashed, as far as I understand the military. The basher is also treated as if it was a normal bashing. I would assume he would face a punishment according to the severity of the beating.

Jarred said...

LC, the point of punishing gay bashers is to let them know up front it will not be tolerated. So while it is in effect "after the fact," the eventul effect is that gay bashers learn that there are severe consequences for their action in a world that does not allow such things.

I'd also argue that your understanding of how "don't ask don't tell" works in the military -- as well as how the military handles the whole topic of homosexuality in general -- bears little similarity to reality. I strongly recommend that you spend a bit more time actually looking to see how the military handles these policies on a practical level -- in other words, look at actual situations.

Also, bear in mind that an incomplete argument is still flawed, no matter how concise.

little-cicero said...

I didn't make an incomplete argument- punishment is a separate argument from prevention, no matter how much the two intersect. Of course, complete arguments can be false and incomplete arguments true.

I can't say how much punishment serves to prevent hate crimes. I would assume that if one is filled with hate, knowledge of the conviction rates of perpetrators will not change the course of their actions, as they are ruled by hate, not reason. I have little experience with hate, so this is pure opinion on my part.

Jarred said...

Regardless of how punishing hate crimes is against preventing further hate crimes, punishing hate crimes and protecting openly gay soldiers (and non-soldiers, for that matter) is the appropriate course of action. All telling gay people to keep quiet accomplishes is as follows:

1. It maintains the status quo at the expense of gay people's rights to be open about their lives and who they are.
2. It enables homophobes by "protecting" them from situations where they lack the self-discipline to control their own behavior rather than pushing them to act as responsible and ethical members of society.. (While this may offend you, I really can't see how you can get around the truth inherent in the statement.) Enabling hateful and violent (or even potentially violent) people in even the slighttest is simply unjust and unethical.

little-cicero said...

You are right on both points, Jarred, but remembering that this is the military, we have to look at the priorities by which laws are constructed. Security vs. Freedom. Seeing as how the military in its very existence is an organization of Security, whose only orientation with freedom is its protection of freedom, I find the facts you stated to be unconvincing. I appreciate your concern with freedom, but the military rank is the one place wherein security should have presidence over freedom.

Jarred said...

That's a bullshit excuse, LC. It's also a clear sign that you're merely interested in defending the policy rather than sincerely considering if it's a just one.

By your logic and for the sake of consistency, all freedoms of soldiers should be removed, particularly any freedom of speech. If security is such an issue, then apply a consistent ban of discussion and disclosure of any personal information amongst the soldiers. Ban discussion of children, spouses, lovers, mothers, fathers, aunts, uncles, hobbies, and anything else. After all, this could all be justified on your same argument. Furthermore, it would offer further protection while applying the same restrictions consistently to all military personnel. Otherwise, your argument amounts to rationalizing discrimination.

little-cicero said...

I'm sorry you feel that way. I really have zero passion for Don't Ask Don't Tell- how can one have passion for a policy that was thrown together as a quick-compromise on the issue of letting gays in the military. But I believe gays SHOULD be allowed in the military. I don't want them getting hurt, becoming isolated because of sexual tension, or engaging in sexual activity in barracks.

I'm not an expert on the military, but I do know that the individual has never been encouraged in the military. Who you are is immaterial in combat- it's what you're made of that counts. So if the military doesn't want you talking about who you are- why should we be concerned. As far as I'm concerned, a soldier who has the Army Values in heart is one of the most valuable people in this country because of what's in his heart- not what's in his pants.

Speaking pragmatically, don't ask don't tell is a useful infringement of freedom of speech. The purpose for infringing outweighs the purpose for respecting, as can be measured by any Supreme Court Justice. The military is in the business of disrespecting individuality and emotional fulfillment, so the argument that the two combined are reason enought to compromise solidarity, discipline and above all security, is in your words "bullshit"- with all due respect.

Jarred said...

You're still conveniently ignoring the inconsistency of who is allowed to express their individualism and who isn't, LC.

Quit making excuses and commit to the honest search for truth and justice you claim to value.

little-cicero said...

I've done so as far as is possible. You haven't yet answered why the con outweighs the pro, but I'm not saying that you're failing to engage in the search for truth!

I've addressed this in the following post (I think). "If I'm a soldier, do I have the right to discuss insubordination in a military barracks? Do I have the right to discuss attacking a fellow soldier in a barracks? Do I have the right to discuss the faults of my superior officers and illegitimize their authority? Do I have the right to discuss *anything considered dangerous or destabilizing by superior officers* in a barracks? This is the point I'm trying to express- in the military, accomplishing the mission, security and stability all trump life (as you frame it), liberty and the pursuit of happiness."

The point is: homosexuals are NOT the only soldiers being deprived of rights. They ARE the only soldiers being deprived of the right of disclosing their sexuality. If you want to make things equal you will have to prohibit heterosexuals from disclosing their sexuality- that would be equality and, as you said I was lacking, consistency.

But what would the purpose be? None that I can figure. If you can find a reason that this would be useful enough to trump the freedom to say that I'm a heterosexual, I would welcome the move.

Jarred said...

I would think that the purpose would be obvious: To infringe everyone's rights equally. After all, creating one group of soldiers whose rights are more protected than another group is a pretty strong detriment to unity among all soldiers, as it creates resentment and hostility between the two groups. That sort of thing is at least as damaging to the military's purpose as a hypothetical gay-bashing.

The reason I accuse you not searching for truth is that unlike many others here (myself included, though others are far better at it), you don't seem to check your arguments -- or the assumptions you make in them -- against any sort of reality. You have not checked military protocols to verify you assertion that "security trumps servicemen's rights" actually fall into it, or if that concept can be so broadly applied as to allow the infringement of the rights of a subset of servicemen beyond what other servicemen's rights are infringed. (Indeed, all of your other examples of "infringements" are applied accross the board, so they don't support your argument in favor of infringing certain rights for only a smaller group.) In effect, you stop as soon as you come up with an argument that sounds good to you. The thing is, the search for truth has to go beyond the searc for what sounds good. It has to continue with the careful examination of how well it fits reality.

Jarred said...

Incidentally, LC, when DADT was originally implemented, it was intended to be applied unilaterally. This was according to my brother-in-law -- an Airman First Class at the time DADT was instituted -- who said that according to the wording of DADT, no one was supposed to disclose any information about their sexuality (both orientation and anythin that might be interpreted to suggest a particular orientation). However, even he admits that it has only ever been enforced when the violation of said policy involved someone who was gay.

So not only is it a stupid policy, but it's not even properly enforced.