Before there was even the idea of GLBT Pride Month, much less the concept of same-gender marriage, a judicial event occurred that resonates today in the ongoing struggle for marriage equality. On June 12, 1967, the United States Supreme Court rendered a landmark decision in the case of Loving vs. Virginia. This historic and unanimous ruling voided not only the Commonwealth of Virginia's anti-miscegenation statute, but similar laws in other states as well. It also overturned the previous Supreme Court verdict that upheld the legality of state laws prohibiting interracial marriages in Pace vs. Alabama (1883). Loving vs. Virginia ended all race-based legal restrictions on marriage throughout the entire United States.
In the earlier case of Pace vs. Alabama, the Supreme Court, in 1883, recognized the authority of the then popular interpretation of race that held 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." (Johann Friedrich Blumenbach). That ruling asserted that there was no violation of equal protection because both whites and non-whites were punished the same.
The plaintiffs in Loving vs. Virginia were Mildred Loving, a black woman and Richard Loving, a white man, both residents of Virginia. They moved to Washington, DC, to escape Virginia's "Racial Integrity Act of 1924" (anti-miscegenation law) and were married there in June, 1958. Upon their return to their native state, they were charged, arrested and convicted of violating the act. Specifically, Section 20-58, which prohibited interracial couples from being married out of state and returning to Virginia and Section 20-59, which classified miscegenation as a felony.
Eventually, the Lovings moved back to the District of Columbia and on November 6, 1963, the American Civil Liberties Union (ACLU) filed a suit on their behalf on the grounds that the state law was in direct violation of their Fourteenth Amendment rights. This action slowly progressed to the docket of the U. S. Supreme Court.
The 1967 Supreme Court dismissed the Commonwealth of Virginia's argument that the state's Racial Integrity Act could not be viewed as racially discriminatory as it applied identical penalties to both black and white violators. The opinion of the nine justices was that the act was in direct conflict with both the Due Process clause and the Equal Protection clause of the Fourteenth Amendment. In the view of the high court, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival...To deny this fundamental freedom on so insupportable 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 discrimination. 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."
The judicial authority's conclusion was that the anti-miscegenation laws were, essentially, precisely what they were intended to be: racist. They were legislated to preserve the privileged status of the white race. The justices decision determined that "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain white supremacy."
This ruling nullified all existing prohibitions against mixed-race marriages throughout the United States, not only in the South but across the entire country as a whole. Although many states retained the laws on their respective Codes, they were powerless to enforce them. The last state to remove these restrictions from legal regulations was Alabama which did so only in 2000.
There is no doubt in the mind of anyone as to the real purpose behind the enactment of individual state laws defining and therefore restricting marriage as between one man and one women. The sole reason for these statutes is to deny same gender loving persons the freedom to legally wed. Opponents of marriage equality often cite religious tradition (specifically, Judeo-Christian) as the basis for this prohibition. However, marriage is an institution that is the privilege of the respective secular state which, in turn, grants that right to religious communions. In the eyes of the state, marriage doesn't require adherence to any particular faith community. Christians marry. As do Jews, Muslims, Hindus and Buddhists. Persons indifferent to or independent of any type of organized belief system marry. Even Agnostics and Atheists are allowed to marry. Civil marriages (those performed outside of any religious sanction) take place across the country, all the time, on a daily basis.
Hence, marriage licenses, permission to marry, are issued by the secular (state) authority and not the sacred (religious). Individual values, attitudes and beliefs are not a qualification for the right to wed and live as a legally recognized couple.
In the struggle for complete marriage equality, LGBT attorneys and legal advisers have used the legal principles of
Loving vs. Virginia, especially those pertaining to the freedoms guaranteed by the Fourteenth Amendment, in advancing their arguments in favor of same gender legal recognition. The Equal Protection clause, when allowed by courts, is applicable to all citizens, regardless of sexual orientation or gender identity. On this aspect and interpretation, all jurists are in agreement.
In his 2010 decision overturning California's Proposition 8 (which banned marriage to GLBT couples), Federal Judge Vaughn Walker cited Loving vs. Virginia in his ruling. He concluded that the constitutional right to marry protects an individual's choice of marital partner regardless of gender." On appeal, the U. S. Ninth Circuit Court of Appeals confirmed his decision. This particular case, Perry vs. Schwarzenegger, is pending review by the U.S. Supreme Court.
The current litigation between the Commonwealth of Massachusetts and the Federal Government over the Defense of Marriage Act (DOMA), which was passed by Congress in 1996, while not specifically naming Loving vs. Virginia, does rely on the Fourteenth Amendment judgments rendered in that decision. It has been affirmed that the Equal Protection clause has been denied through the enforcement of DOMA. The Federal Government delegates marital authority to the individual states. In enacting DOMA, the Federal Government is denying Federal benefits (discriminating) against GLBT couples who reside in states and the District of Columbia that do recognize same gender marriages. In essence, the U. S. is usurping the very authority it reserves to the states and in turn is denying equal protection (entitlements) to a select group of citizens.
Both of the above cases, should the U. S. Supreme Court decide to hear them, can be argued as early as the Autumn, 2012. If the high court decides not to entertain a review, lower appellate rulings stand which overturn Proposition 8 in California, thus legalizing (a second time) marriage equality there. In the Massachusetts case, it is technically understood that DOMA would be deemed unconstitutional and therefore nullified.
If the Supreme Court decides to review the above cases, the fact that the plaintiffs have followed a strictly constitutional argument in their case, the court will see the obvious: protected freedoms and rights have been violated. In this day and age, it is hoped the justices will honor the secular (constitutional) nature of government as was done in Loving vs. Virginia as the court did in 1967. The days for using the sacred reasoning, as in Pace vs. Alabama in 1883, have no place in modern society.
Peace! Get naked. Enjoy!
Sources: author's notes, Gallaudet University, Howard University, Wikipedia
