“States have a rational basis for determining who gets married.”
“The framers of the 14th Amendment did not intend it to mean a fundamental right to marriage.”
“It goes against God’s law.”
Probably sounds familiar. This is a small part of the backlash against the Supreme Court’s decision in Obergefell v. Hodges, that will effectively legalize same-sex marriage in all 50 states.
But these are the exact same arguments that were part of Loving v Virginia in 1967. That case involved interracial marriage, which many states considered a felony. The Lovings were legally married in Washington, D.C., but were arrested and convicted of miscegenation at their residence in Virginia. The judge at their trial stated the following:
“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.”
These days, that kind of language would get a judge run out of town faster than you could say ‘George Wallace for President’, but does the subtext really sound that much different from what some folks are saying about homosexuals?
The arguments presented in Loving echoes the same arguments that have been used against same-sex marriage. But Chief Justice Earl Warren, writing the unanimous Court decision, said this:
“Marriage is one of the ‘basic civil rights of man’, fundamental to our very existence and survival…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.”
In 1967 there was no 24 hour news cycle. But if there was, I have a strong suspicion that many folks thought the apocalypse was neigh. Similar sentiment has been common since Friday’s decision in Obergefell. While each of us has the right to believe what we will, I find there to be a specific demarcation between the legal right to marry and the religious aspect marriage. This was specifically noted in Justice Anthony Kennedy’s majority opinion:
“…religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
I believe this is what some state authorities (in places like Texas, Mississippi and Louisiana) have focused on to send directives that county clerks do not have to issue marriage licenses to same-sex couples if that is against their personal beliefs. But, a few lines later in the opinion, Justice Kennedy went on to say
“The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
Now, I am no legal expert, but it seems pretty clear to me that, as an agent of the State, a county clerk, Attorney General, etc. must adhere to the laws set forth. To do otherwise opens many possibilities: Could a county clerk that is devoutly Catholic refuse to sign off on a divorce? Could a county clerk that is an atheist decide to not grant any marriage licenses at all? If a judge is a practicing Muslim, could he deny any interest be paid on an outstanding loan on the basis of it being usury? In all of those cases, I do not believe that would happen. But, if individuals are allowed to make a similar claim when denying a marriage certificate to a same-sex couple, the precedent will be set. I have a hard time believing anybody wants that.
Individual liberty and a right to privacy is a cornerstone of our nation, and these have been continually upheld by the Supreme Court. Griswold v Connecticut (1965) held that a married couple could choose to use contraception, and that was extended to unwed couples in Eisenstadt v Baird (1972). Both of these were cited in the majority opinion of Roe v Wade (1973). Loving v Virginia (1967) upheld the right for people of different races to get married. Turner v Safley (1987) held that prisoners were allowed to marry. Lawrence v Texas (2003) held that what happens in the privacy of one’s own bedroom cannot be criminal (and in so doing overturned Bowers v Hardwick (1986), which had upheld criminalization of homosexual acts). Each of the majority opinions in these cases cited Section I of the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That last line is the doozie. “…nor deny to any person within its jurisdiction the equal protection of the laws.” As the case law I cited above clearly shows, and as Kennedy’s opinion in Obergefell states:
“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry.”
I have had several openly gay students in my career as an educator (and probably quite a few more that were in the closet). I asked one of them if he would respond to this question: “How do you resolve the more fundamental teachings of your religion [Catholicism] with being homosexual?” While I know how I would answer, I’m straight and, on the best of days, agnostic. So while my thoughts on this particular aspect seem logical, I do not want to write them here. I will let his response speak for itself:
“As far as the more fundamental stuff – my worth and dignity as a human being – something in me just tells me that it isn’t sinful to be attracted to the same sex/gender. I like to think of it as having clarity or being enlightened, but that’s something a lot of religious people claim to have. I don’t know if that made any sense. It’s taken some time, but I’ve finally learned to find beauty and divinity in ‘difference’.”
When writing the dissent in Lawrence, Justice Antonin Scalia wrote “Let me be clear I have nothing against homosexuals” and claimed that the majority opinion “invent[ed] a brand new Constitutional right”. In his Obergefell dissent, Chief Justice John Roberts stated “Whether same-sex marriage is a good idea should be of no concern to us….And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.” The ‘throughout human history’ argument is particularly troubling. If we had not treated the Constitution as a living document, it is likely that many civil rights and liberties would not be part of our laws today. In the 18th century, women were not afforded the same rights as men. In the 19th century, African-Americans were not on equal footing as whites. Even in the 20th century, discrimination based on fear and misunderstanding were common – from ‘separate but equal’ clauses to the internment of citizens of Japanese descent. While we have made progress in granting rights to minorities and combating discrimination, there is much work to do, as evidenced by the negative reactions to Friday’s decision.
if you choose to not support the wedding of a gay family member or co-worker, that is your prerogative. But I hope you reconsider. As my former student stated so eloquently, let us all find beauty and divinity in difference.