Wednesday, July 12, 2006

Loving v. Virginia

"The spouse of one's choice"

What a name for a Supreme Court case. And it was all about marriage too. Advocates of "gay marriage" presented many losing arguments to New York's highest court this year. Several of them were rooted in the Supreme Court's 1967 decision of Loving v. Virgina, 388 U.S. 1 (1967). The state of Virginia may have coined the phrase "Virginia is for Lovers" in an attempt to live down the infamy of that case.

It began when a sheriff kicked in the door of Mr. and Mrs. Loving's home, found them in bed with a framed marriage license on the wall, and arrested them for being of two different skin colors. A concurring opinion from the New York Court of Appeals got one thing wrong: it said the case involved a "white" woman married to a "black" man. In fact, Mr. Loving was classified by the laws of Virginia as "white" and Mrs. Loving was classified as "colored." Either way, they were both subject to arrest for being married to each other.

The U.S. Supreme Court ruled Virginia's law against inter-racial marriage null and void because it violated a fundamental "right to marry the spouse of one's choice." At the time, everyone understood that was the right of any man to marry any woman he chose, if she agreed, and the right of any woman to marry any man she chose, if he agreed. That language is now being used to suggest that the right to "marry the spouse of one's choice" includes the right to marry a "spouse" of one's own gender. Dubious. As the New York court found:

While many U.S. Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage right as involving a union of one woman and one man (see e.g.Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434 US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner v Oklahoma, 316 US 535 [1942]).

The NAACP Legal Defense and Educational Fund filed an amicus curiae brief to the New York Court of Appeals, accepting that "[a]lthough the historical experiences in this country of African Americans, on the one hand, and gay men and lesbians, on the other, are in many important ways quite different, the legal questions raised here and in Loving are analogous. The state law at issue here, like the law struck down in Loving, restricts an individual's right to marry the person of his or her choice. We respectfully submit that the decisions below must be reversed if this Court follows the reasoning of the United States Supreme Court's decision in Loving."

That was a shallow analysis. No doubt the NAACP has caught the one big happy family feeling, that every form of liberation from every restriction is one big cause. In truth, every form of discrimination is different, and must be analyzed on its own merits.

In the case of racial discrimination, there are no merits. The distinction is an empty one, which exists only in the human imagination. It has been specifically and explicitly rejected by multiple constitutional amendments. After 100 years or so, courts even began to enforce those amendments with some consistency. Congress even got around to passing laws to put some teeth into the enforcement. Racial discrimination is subject to what courts call "strict scrutiny." That, as the Supreme Court wrote in Loving, means that if racially discriminatory laws "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." Justice Stewart went further, stating his entire analysis of Loving in one sentence. "It is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

In the case of discrimination by sex, most of us prefer separate bathrooms, and in certain respects we don't even want them to be equal. It is arguable that women have less inclination toward some occupations than men, and more inclination toward others. This has been argued from both a feminist and anti-feminist perspective. All these arguments are far from proven. In any case, it is irrelevant to whether each individual, without regard to sex, should have equal access to prove themselves in any form of education or profession. Still, there are some women who prefer going to all-women schools, and some men who prefer to get their education without the presence of women. Separate sometimes is equal, or simply recognizes genuine differences.

Laws against inter-racial marriage are not legally equivalent to laws which define marriage as the union of a man and a woman. Mr. Loving was a man, whatever his skin color, and Mrs. Loving was a woman, whatever her skin color. The law struck down in Loving was rejected by the Supreme Court due to "the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race." The court was very explicit that other forms of discrimination do not automatically get the same strict scrutiny.

Now here is where it gets sticky. The State of Virginia argued in 1967 that its law did not discriminate against any race, because both those designated by the state as "white" and those designated by the state as "colored" were equally prohibited from marrying anyone designated by the state as of a different race. Both individuals who entered into an interracial marriage were punished by the same prison sentence. The Supreme Court rejected that argument. Therefore, a certain logic suggests that if state's restrictions on marriage equally prohibit a woman from marrying another woman, or a man from marrying another man, then the Equal Protection Clause can still be violated by a law limiting marriage to heterosexuals.

In fact, no state marriage law discriminates against homosexuals. No state law even considers the existence of homosexuals as a class or an individual characteristic. The language of Virginia's invalid law defined in detail what is a "white" person, what is a "colored" person, what is an "Indian" – and made various exceptions for percentages of "white" and "Indian" blood. (Why? The state wanted to "honor" the descendants of John Rolfe and Pocahontas as "white.") The law in Virginia imposed criminal penalties for being married to a person of a different race. There is no counterpart in any marriage law defining what is a "heterosexual" and what is a "homosexual." There are no criminal penalties for being a homosexual married to a heterosexual, or being married to a person of the same sex. The only classes recognized by state marriage laws are "men" and "women." That is without question a rational distinction when it comes to marriage.

No state has banned homosexuals from the benefits of marriage, for such purposes as preventing "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," which were Virginia's stated defenses of its marriage law. It would be foolish to bar homosexuals from marriage for the purpose of preventing the birth of more homosexuals. Homosexual unions do not produce children of any preference. Same-sex couples who wish to adopt children have made a consistent point that the orientation of the parent does not influence the orientation of the child.

All that current marriage laws in most states do is to accept and adopt the definition of what marriage is, a definition which has been in effect for many centuries in Europe and North America, and in some parts of the world for thousands of years. Definition of terms is generally required in any law before anything else can be said. What same-sex couples object to is not that they have been discriminated against, but that marriage has been defined as something they don't want, and does not include something they do want. That is not unequal protection of the laws. If the right to marry "the spouse of one's choice" is understood to mean whatever one chooses, why stop at a person of any gender? Why not one's dog, or a sheep, or one's car? A lot of men have love affairs with their cars, why not issue marriage licenses? That is if they are not already married to a woman, or a man. Marriage to both a man and a car would be bigamy, wouldn't it?

Once the state chooses to license something called "marriage," and defines what the licensed activity is, the state may not discriminate among people who wish to enter into the covenant defined by law as a "marriage." If marriage IS the union of one man and one woman, then the state may not discriminate as to which man can marry which woman. Not based on race, not based on sexual orientation, not based on hair color, not based on nationality. The state has no constitutional obligation to license as a "marriage" anything that any given individual wants to call a "marriage." You can call it a marriage if you want to. You just can't get a license for it from the state.

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