-Submitted by David Drumm (Nal), Guest Blogger
Loving v. Virginia (1967) was a case decided by a unanimous Supreme Court that invalidated all laws that prohibited inter-racial marriages. At the time, Virginia was one of 16 states that had statutes that prohibited and punished inter-racial marriages. Considering recent oral arguments regarding California’s Proposition 8 and the Federal Defense of Marriage Act (DOMA), the similarity to arguments made in support of anti-miscegenation statutes is striking.
One of the arguments used by those who oppose same-sex marriage is “does the state have the right to define marriage as it sees fit?” This issue was addressed by the Court in the opinion written by C.J. Warren:
… the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.
The Court is not “redefining” marriage, it is setting the Constitutional bounds on the State’s police power.
Another argument used by those who oppose same-sex marriage is that the Equal Protection Clause of the Fourteenth Amendment does not apply since “there is no test or law banning gays from marrying a person of the opposite sex.” This was the same argument used by Virginia in Loving: “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 Court rejected the idea that “equal application” of Virginia’s law was enough to circumvent the proscriptions of the Fourteenth Amendment. Virginia had hoped to have its statutes considered under the rational basis test, where “any possible basis for concluding that they serve a rational purpose” would allow the statutes to be upheld.
The Loving Court also opined that marriage is one of the “basic civil rights of man,” and that 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.” This would seem to put marriage squarely in the category of fundamental rights, requiring application of strict scrutiny for purposes of equal protection analysis. In Shapiro v. Thompson (1969), the Court held that any burdening of a fundamental right must promote a “compelling governmental interest.” The denial of the fundamental right of marriage to same-sex couples doesn’t even pass the highly deferential rational basis level of scrutiny.
J. Scalia, in his dissent in Lawrence v. Texas (2003), noted that the majority ruling leaves “state laws limiting marriage to opposite-sex couples” on pretty shaky ground. However, many agree with J. Scalia when he asserted that Lawrence was not a fundamental rights case. According to J. Scalia, any state that outlaws behavior that is “immoral and unacceptable,” will satisfy the rational basis test. How does one fail this test?
In McCulloch v. Maryland (1819), C.J. John Marshall wrote that the Constitution needs to be adapted to new situations if it is “to endure for ages to come.” Those who expound the Constitution should adopt Marshall’s “Adaptive Constitution” to ensure its continued relevance.
In Loving, the Court didn’t side-step the issue, but found that the Virginia’s statutory scheme “violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”
H/T: Sandy Levinson, Gayle Lynn Pettinga (pdf), Arthur S. Leonard, Jeffrey D. Jackson (pdf).
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Pete – you missed a big one. The Great Cosmic muffin – who insisted on plural marriage – said it was a no-no for men. He makes no mention of women though so apparently He gets off on girl-on-girl action.
But I think that about covers it
it’s icky and i don’t like.
there aught to be a law.
did i miss any?
Overturning Citizens has a lot more steam behind it than any proposal to further restrict the rights of natural (as in real) citizens ever would at this point. You vastly underestimate the general displeasure of the people with openly fascist “pay to play” mentality that goes in Washington these days, Randy. Overturning Citizens has broad support that crosses party lines in a way that maintaining oppression of homosexuals simply doesn’t. That’s primarily an ultra-right/religious GOP thing.
” … don’t forget the Equal Rights Amendment is still languishing for lack or ratification …” (OS)
We’re still working on it … the battle women have fought and continue to fight is long and arduous but we don’t give up.
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“The 113th United States Congress (2013-2014) convened on January 3, 2013.
The traditional ERA ratification bill was introduced in the U.S. Senate on March 5, 2013 by lead sponsor Senator Robert Menendez (D-NJ). This bill, S.J. Res. 10, has 10 co-sponsors: Sen. Mark Begich (D-AK), Sen. Richard Blumenthal (D-CT), Sen. Barbara Boxer (D-CA), Sen. Benjamin Cardin (D-MD), Sen. Tom Harkin (D-IA), Sen. Mazie Hirono (D-HI), Sen. Frank Lautenberg (D-NJ), Sen. Carl Levin (D-MI), Sen. Debbie Stabenow (D-MI), and Sen. Elizabeth Warren (D-MA).
Representative Carolyn Maloney (D-NY) cancelled a March 6 ERA press conference because of a predicted snowstorm in Washington, DC. The event will be rescheduled at a time to be announced.
Three-state strategy bills removing the deadline for ratification of the ERA will also be reintroduced in the near future by Senator Benjamin Cardin (D-MD) and Representative Robert Andrews (D-NJ).”
http://www.equalrightsamendment.org/
randyjet,
The convention process will not happen. It may sound easier, but there is a reason why it hasn’t been used in years and years.
Well, I hope that it does because the only way to overturn Citizens United will be to have such a thing. Of course, big money will be against such a convention and that may well be the reason it will not happen. Even with enough GOP support in the legislatures against gay marriage, they may well decide not to take such a risk to Citizens.
randyjet, I like you and we probably have far more in common than differences. I did not mention alternatives to Congress because that is an even more difficult road to adoption. Once in two and a quarter centuries ought to be instructive. On this issue, it is simply not going to happen. The politics nor the momentum is there. If you notice, more and more Republicans are suddenly supporting same sex unions. This is one where the plane has left the gate.
OS You may well be right, but of course we have not heard from the SCOTUS yet and the fallout from that. I did a quick count of legislatures that could pass such a call, and it appears that there is the requisite 34 to do it.
randyjet,
I know what the procedure is. My point is that it is next to impossible to get a constitutional amendment passed. The framers of the Constitution meant for it to be difficult to amend. Getting an amendment passed that might take civil rights away from people will have an even higher bar to hurdle.
OS if you know that such a thing does not have to go through Congress, I guess your previous statement was in error that maintained it did. The fact is that while the 21st was proposed by Congress and sent to the states, they used the little used provision of convention ratification rather than the state legislatures and got it passed pretty quickly too. A convention can be called for proposing such an amendment too, and completely bypass Congress on all levels. It depends on a lot of things as to whether or not such a thing will come about. Of course, it is designed to be difficult and thus reserves it to major items, such as redefining marriage in the face of a divided SCOTUS, Congress, and a lot of other states which are in the overwhelming majority in not allowing same sex marriage. Having a 41 state majority is a pretty good start for passage of such a thing.
Otteray Scribe:
The fact that the ERA has not been adopted is a national disgrace.
randyjet, don’t forget the Equal Rights Amendment is still languishing for lack or ratification. More than half the population are women. But first, a proposed amendment has to get through Congress. If what you are suggesting is proposed it will be DOA.
OS You need to read the Constitution because the amendment does NOT have to go through Congress at all. All that is required is that 34 states must call for a convention to be held to propose an amendment to the Constitution. There are easily that number of state legislatures that have that kind of vote now. Then all that is required is for three fourths of the states, 38 today, to either have their legislatures or each state have a convention to pass on the amendment issue. In fact, that is the way the 21st amendment was passed by the states.
I too would like Citizens United overturned.
However, there is a growing movement to legalize same sex marriage. The political momentum is shifting in favor as more and more gays come out of the closet. A lot of families are suddenly finding out they have gay children, which shifts their perspective dramatically. I have a feeling Dick and Lynn Cheney would not be staunch supporters of gay marriage if they did not have a lesbian daughter. An estimated ten percent of the population is either gay or bisexual. Every one has families. Admittedly, some parents and families disown their kids, but they are in the minority. Even those have a way of coming around once they get used to the idea.
The passage of a Constitutional Amendment on any issue is a very high hurdle. There is a good reason we only have amended the Constitution 27 times in the past 226 years. Only 17 times if we discount the Bill of Rights that were attached all at the same time. There are six Amendments pending and awaiting ratification, which may or may not happen.
In addition to those pending awaiting ratification, there were 17 which failed to be passed by Congress, were never voted on by Congress, or are still pending before Congress. Only one or two of those may stand a slight chance of going on to the ratification process.
OS I agree that it would be a high hurdle, but one has to remember the fact that the Catholic Church will be foresquare for this and can be counted on to mount a full scale press for this one. That in addition to the Mormon Church and all the evangelicals and then add into the mix the fact that all those religious groups will be totally free to pour any amount of money and resources into such a campaign since it is not partisan politics. Any momentum you think exists now, can be countered. I remember what happened to Kerry when as a Catholic he lost that vote which cost him the election. The last Pope was instrumental in getting the Cathlic Church to be against Kerry even though he was Catholic and many Catholics went so far as to call him a Jew because one of his ancestors was a Jew. In the opinion polls Kerry was ahead at the time of the election too. Yet that mobilization was very effective.
Looking at the states that could pass such an amendment there is Washington, Oregon, Nevada, Arizona, New Mexico, Montana, Idaho, Colorado, Wyoming, Kansas, Nebraska, Oklahoma, Texas, S Dakota, N Dakota, Minnesota, Wisconsin, Michigan, Iowa since they kicked out two of the justices who voted for gay marriage,Missouri, Arkansas, Louisiana, Mississippi, Alabama, Georgia, Florida, S Carolina, N Carolina, Tennessee, Kentucky, Indiana, Ohio, Pennsylvania, West Virginia, Virginia, Delaware, New Jersey, New Hampshire, So while only 9 states allow same sex marriage, that leaves 41 states which do not which is three over the number needed to pass one such amendment. If those who are for such an amendment are smart, they would pair this opposite sex marriage amendment to the one to overturn the Citizen United ruling in going to the states.
randyjet 1, April 6, 2013 at 4:17 pm
My previous post was in respone to OS by the way. As for marriage existing in a state of nature that is not marriage since it requires a state to enforce a contract as Gene H points out. Thus marriage as a legal matter does not exist since there are no laws. What Gene H refers to is simply called living together, not marriage. That is legal now for all people and in any groups as I pointed out earlier.
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Contract law is not relevant at the core of this.
The behavior of consenting adults to do sexual stuff in their bedrooms is closer to the core of it.
If the states, including the federal state, cannot govern that consensual behavior, what is up with arguments that they can govern that otherwise legal behavior on the way to that bedroom?
Marriage is usually one way of saying we are officially headed to the sack to do ____, ____, and __________.
So, how can the state say you consenting adults can’t go to the bedroom.
What the states need to focus on is property law as applied to married consenting adults, and loose the archaic meddling in designs of marriage which is not an exclusively state affair.
“The problem with dismissing the need for a large majority on the SCOTUS ruling is that such a ruling can and quite probably will be overridden with a Constitutional amendment.”
Gibberish.
“As for marriage existing in a state of nature that is not marriage since it requires a state to enforce a contract as Gene H points out.”
Straw man. That’s not what I said. I said contracts can be had at the state of nature but your only remedy for breach or to seek dissolution is self-help. That doesn’t mean contracts cannot exist in the state of nature, only that you have no recourse but what you yourself can enforce absent the protections and enforcible judgements of the courts. The only valid governmental interests in marriage is in contractual enforcement. The only thing required to make a contract though is two parties making a promise in exchange for value (even if that value is only another set of promises as in a marriage vow). Government plays no part in the contractual relationship unless there is breach and the parties avail the courts for remedy or unless the contract is for an otherwise illegal purpose like hiring a hitman to kill somebody.
Screw up your own arguments, Randy.
There’s no need to misrepresent mine.
OS,
Let the discriminatory crowd try a constitutional amendment. It will keep them busy for awhile.
randyjet,
The chances of a Constitutional Amendment making same sex marriage illegal will stand just about the same chance as one overturning Loving. That is to say, none. Ever land on an icy runway where braking was nil? That’s where that proposal is politically. It has gone past the overrun and is in the ditch.
I am glad to disagree with OS since I was afraid of being a ditto head with him. I know full well what it is like to land with nil braking, and I remember every one of those landings which are too many for me. I have always tried not to claim nil braking since that closes the airport and one time I landed with a United 737 behind me. He asked for a braking report, so I gave him a good hint and reported that I required full reverse thrust to stop. He got the hint and said they were going to DEN instead.
I have wound up in the ditch before, but that is normal for Metros which got the name weedeater for a number of reasons, that being one of them. You canot be a real Metro pilot unless you have gone off the end or off the runway. Having said that, the Loving decision was unanimous, there were only 15 states at the time that prohibited interracial marriage when it was handed down, the Civil Rights Act of 1965 had been passed so it was extremely unlikely to have any chance of an amendment to overturn it. The same is not even close for same sex marriage. There are only nine states which allow for same sex marriage, so if I were hot for that, I would be cautious about what they wish for. Then there is the movement to pass an amendment to overturn Citizens United too. I wholeheartedly support that movement.