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.