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Loving vs. Virginia: Its Application

by Richard Harrold, a journalist from central Michigan who covers the courts and legal issues.


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Now let's try a little substitution in this judge's quote: Let's say--

"Almighty God created the sexes, male and female and placed them on this Earth for the purpose of procreating the species, a feat that cannot be accomplished when persons of the same sex are coupled together. And but for the interference with his arrangement, there would be no cause for such marriages. The fact that he created the different sexes with complimentary anatomical parts shows that he did not intend for same-sex couples to exist or same-sex sex to occur."

Now, true, the Virginia trial judge did not say this. But his reasoning for justifying the Virginia law is exactly the same as applied to the instant case of same-sex marriage. And for all the use of this logic, the judge could say that because God did not create humans with wings, then we shouldn't be flying. Or that because God did not create us with the ability to live in a vacuum, then we shouldn't be engaged in space travel. All activities, BTW, which could not have been foreseen by the drafters of the Constitution.

Despite all this, Virginia still believed its law was alright because it applied equally to everyone, both white and nonwhite. And at the time, 16 states had such statutes on the books. The court reviewed and said:

Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period.6 The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person,"7 a prohibition against issuing marriage licenses until the issuing official is satisfied that [388 U.S. 1, 7] the applicants' statements as to their race are correct,8 certificates of "racial composition" to be kept by both local and state registrars,9 and the carrying forward of earlier prohibitions against racial intermarriage.10

All those numbers in the middle of the sentences refer to footnotes.

The State went on to argue that its laws were there to prevent the creation of a "mongrel race" and that marriage traditionally has been a matter left to the states free from federal regulation, and that the court ought to defer to the 10th Amendment and leave Virginia alone.

The court explained:

Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

These are the same arguments being applied to restrictions on same-sex marriage. Both gays and straights alike may not marry someone of the same sex. Therefore, this is not an "invidious discrimination" against sex.

We need to pause here and define the term "invidious", as it is a very precise term: exciting or creating ill will or dislike; offensive. Provoking anger or resentment by unjust discrimination.

It has also been argued that because science has not yet determined completely whether sexuality is largely innate or a chosen behavior, that states ought to be left free to regulate sexuality solely as a behavior and not a status.

But the court didn't buy this argument, and by rejecting this argument, the court rejected the state's offer of a "rational basis" test, requiring instead the "strict scrutiny" or compelling reason test as it always has with regards to race. The same level of scrutiny was asked for by the Hawaiian Supreme Court, which asked for a compelling reason from the state as to why it should discriminate against same-sex marriages.

The state also argued that the 39th Congress was clear when it passed the 14th Amendment that the amendment was not intended to render state miscegenation laws unconstitutional. Sort of like the argument that our founding fathers would have opposed homosexuality. On this matter the court ruled:

While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect." Brown v. Board of Education, 347 U.S. 483, 489 (1954).

In other words, if one is to look at historical context, then one must consider the entirety of that context. In reference to homosexuality, the historical context is clear: homosexuality is viewed with intense animus largely because of religious doctrine, as there was no science available at the time to suggest sexuality was something other than a chosen lifestyle. This also brings into consideration the legal theory of "anachronistic laws", or laws that may have been suitable in one time period, but which have lost that same relevance in current time periods. Clearly a classic example of anachronistic laws are the sodomy laws, which sought to forcefully imbue personal activities with a moralistic hegemony, even when those personal activities posed no harm to others.

In Loving, the court concluded that:

There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races.

The applicability to same-sex marriage is quite clear. The bans against people of the same sex marrying each other rest solely upon distinctions drawn according to sex. And when we apply the issue of homosexuality, we find that a generally accepted conduct -- marriage -- is allowed for one group based upon the characteristics of that group, but proscribed to another group *based upon the characteristics of that group*!

The court went on to say:

Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense." McLaughlin v. Florida, supra, at 198 (STEWART, J., joined by DOUGLAS, J., concurring).

How does one's sex, or even sexuality, become the test of whether a person's conduct is a criminal offense?

It is only after all of this that court makes its comments on whether marriage is a right when it says:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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.

Gee, kind of sounds like what you said Shawn, about the pursuit of happiness....;-)



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