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Race Claims Echo In Gay Marriage Debate

In this dreary summer of realpolitik I find it comforting to re-read Chief Justice Earl Warren’s opinion in the case of Loving vs. Virginia.

Loving struck down laws against interracial marriage that were still on the books in 16 states in 1967. Another fourteen states had only recently repealed such laws when the Supreme Court unanimously ruled that those statutes violated the Equal Protection and Due Process clauses of the Fourteenth Amendment.

These days interracial couples draw little notice. It seems hard to imagine that within the lifetime of most Baby Boomers such unions were criminal in more than half the country. On the other hand, today we hear shrill cries from people like Gary Bauer of the conservative Family Research Council that granting the legal protections of marriage to same-sex couples would “destroy marriage” and undermine the foundations of civilization.

To his shame, President Clinton has promised to sign the “Defense of Marriage Act” if it reaches his desk. Clinton has made evident his distaste for the bill’s gay-bashing goals and sponsors, but he made equally plain that he sees no reason to sacrifice important presidential votes over the issue. Like many in the House who voted 342-67 to pass the bill this summer, he knows there is an excellent chance the courts will trash the law at minimal political cost to himself. To gay voters and their supporters Clinton shrugs, “Who you gonna call — Bob Dole?” (Webmaster's Note: The Senate approved the Defense of Marriage Act 85-14 on September 10, 1996, after this issue of Sentinel went to press. President Clinton signed the legislation into law on September 21, 1996.)

June Wedding, October Indictment
Mildred Jeter and Richard Loving were married in June 1958. She was black; he was white. The wedding was performed in Washington, D.C., where the law permitted racially mixed marriage. The Lovings then settled in Caroline County, Virginia. That October a grand jury indicted the Lovings for violating Virginia’s law against marriage between whites and non-whites. The two pleaded guilty in January 1959 and were given a choice: Go to jail for a year, or take a 25-year suspended sentence on condition that they leave Virginia and not return. The Lovings opted for the latter and retreated to Washington.

The judge who exiled the Lovings wrote that “Almighty God created the races white, black, yellow, malay and red, and He placed them on 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 shows that He did not intend for the races to mix.”

Their banishment must have rankled the Lovings. In 1963, just after the Rev. Martin Luther King led his march to the nation’s capital, they launched a court fight to overturn their convictions. Virginia’s courts upheld the anti-miscegenation law, which was enacted in that state as the “Racial Integrity Act of 1924,” citing a 1955 ruling in which the Supreme Court of Appeals of Virginia concluded that the state had a legitimate purpose for its anti-miscegenation laws. This was “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” the creation of “a mongrel breed of citizens” and “the obliteration of racial pride.”

The Lovings appealed to the Supreme Court, which had no trouble concluding that anti-miscegenation laws violated the Equal Protection clause barring race-based discrimination. Besides Virginia, the states with such laws in 1967 were Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and West Virginia. All were Southern and border states where all sorts of equal rights battles raged in the 1950s and 1960s.

This was not just a Southern issue, however. Between 1952 and 1967 the following 14 states repealed long-standing anti-miscegenation laws: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah and Wyoming. All but Indiana and Maryland were Western states where the bans on mixed-race marriage were primarily targeted at Native Americans (and, on the West Coast, Asians) rather than blacks.

‘The Freedom To Marry’
“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,” Chief Justice Warren wrote. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. 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.”

Are two people who dedicate their lives to one another any less entitled to “the orderly pursuit of happiness” because they happen to be of the same gender? Are they any less entitled than other couples to equal treatment under the law? Is there any reason other than simple prejudice and political expediency to deny them one of the “basic civil rights of man?”

The Warren Court is long gone, of course, but today’s Supreme Court might well echo much of Loving if it reviews the Defense of Marriage Act. Besides Fourteenth Amendment grounds for overturning DOMA, the court could look to the Full Faith and Credit Clause of the Constitution itself (you can read it in Article IV), as well as to the First Amendment prohibition on the establishment of official religious beliefs.

Sure, Justice Antonin Scalia will dissent, as will Justice Clarence Thomas. (I often wonder why we could not spare the country Thomas’ confirmation debacle by simply giving Scalia a second vote.) But the majority of the Court, like the majority of the country, can be counted on to be fair-minded in the long run of history.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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