Thursday, May 15, 2008

Loving legalized in California

The California Supreme Court today ruled that the state must allow the same marriage rights by the same name to gay couples that the state grants to straight couples. They ruled by the reasoning presented in this very blog, which follows the reasoning of the Massachusetts high court in 2004. One of the precedents cited by the court was California's own version of Loving v. Virginia, the 1947 case Perez v. Sharp in which the California Supreme Court, 19 years ahead of the US Supreme Court, became the first court in the nation to rule that a ban on interracial marriage was unconstitutional.

The decision was based on equal protection provisions of the California state constitution. It appears likely that a referendum will be on the November ballot to change the California constitution to ban gay marriage. The state legislature has already voted twice to enact gay marriage in the state, and Governor Schwarzenegger has twice vetoed the measure, but he has already said he will oppose the referendum if it appears on the ballot in the fall (yeah, go figure).

California already allowed almost (but not quite) all the same rights to same-sex couples as to opposite-sex couples. The California court says the state must supply all the same rights and the same name. This is like Brown v. Board of Education (1954) and Loving v. Virginia all in one. New Jersey's high court last year ruled the state had to provide the same rights to same-sex couples but not the name and allowed the state legislature to establish civil unions with the same rights under state law as marriage. That advanced same-sex couples in New Jersey to the separate-but-equal status of Plessy v. Ferguson of 1896. The New Jersey court did suggest they would be willing to reconsider the name issue in the future and possibly advance gay rights in that state past 19th century jurisprudence.

There is an additional legal benefit to full-on marriage beyond the name. Civil unions or domestic partnerships are defined differently in each state and aren't necessarily recognized in other states that allow civil unions, and couples might have to register a new union or partnership if they move to a new state. Marriage, however, is clearly defined and states automatically recognize marriages conferred in other states (with the exception of gay marriages, courtesy of the Defense of Marriage Act). So a couple married in California would still have the protections of marriage if they moved to Massachusetts or any other state that recognizes gay marriage. It also means that gay couples married in Massachusetts and currently residing in California could get divorced in California, should that be necessary. It's a little more complicated for married gay couples who move from California or Massachusetts to New Jersey.

I think it is inevitable that all state courts and eventually the US Supreme Court will rule that states must allow gay marriage, absent constitutional amendments expressly banning it. It took 19 years from the first state court's ruling in favor of interracial marriage until the Supreme Court applied the reasoning nationwide. By that precedent, we could see the gay marriage equivalent of Loving v. Virginia at the federal level around 2023.

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Loving and more

Ruth Marcus, in yesterday's Washington Post column discusses Loving v. Virginia in the context of John McCain's recent railings about "unelected judges" ignoring the "will of the people." She takes McCain to task for these statements. She also wonders whether the current court would have reached the same conclusion that was reached in 1967 and wonders how McCain and other critics would have reacted to the Loving decision.

The Supreme Court is not supposed to be driven by the "will of the people." The constitution is anti-majoritarian, putting limits on the powers of government and protecting the rights of individuals against persecution by the majority. People may disagree with the logic of specific Supreme Court decisions, but statements like McCain's (and many other politicians and pundits, mostly from the right side of the political spectrum) show a lack of respect for the Supreme Court's constitutional role as well as a lack of respect for the constitution itself.

Before denouncing a court's decision it would also be wise to take the time to understand the court's rationale. When state or a federal courts rule legislative actions to be unconstitutional, they are finding that the legislative actions violate principles of the state or federal constitution. Many constitutional provisions concerning civil liberties are broad statements to guide how our society should be governed. It is the courts' role to ensure that we meet the standards that we aspire to through the constitution and reject laws that fail to meet those standards. A little reflection should be in order to ponder what those basic principles mean before trashing the decisions implementing them.

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Monday, May 12, 2008

In Memory of Loving

Mildred Loving died May 2 at age 68. She was the part American Indian (how she preferred to identify herself), part black woman married to a white man, Richard Loving, whose case went to the Supreme Court in 1967. In their unanimous decision the court struck down laws that banned interracial marriage in Virginia and at least 16 other states. At the time of their marriage in 1958, at least 22 states had miscegenation laws. When Barack Obama’s parents wed in Hawaii in 1960, their marriage would have been illegal in those same 22 states.

The case is cited by the most appropriate name I’ve ever seen for any Supreme Court decision, Loving v. Virginia. These two people loved each other and wanted to be married, and the Commonwealth of Virginia arrested them because of that. Virginia hasn’t always been for lovers.

The decision required that Virginia and any other state recognize the marriage of two adults, regardless of race, provided they met other legal requirements. The decision also did not require that any church, synagogue, or other religious organization perform interracial marriages, only that the states couldn’t deny them.

This case is relevant today not only because it made possible the marriage of a current Supreme Court justice (Clarence Thomas), but also because it provides the basis for courts to overturn bans on gay marriage. Even though Virginia law allowed Richard Loving to marry a white woman and Mildred Jeter to marry a black man, banning them from marrying each other based on race violated the equal protection and due process clauses of the fourteenth amendment.

The same logic applies to the case of gay marriage. A marriage is a contract between two adults entered freely. It is recognized by the state and provides privileges and imposes responsibilities. For the state to restrict the contract to one man and one woman rather than two men or two women, the same test should be applied that was used in Loving v. Virginia. It is not up to the state to protect the “sanctity (synonym, holiness) of marriage.” Any holiness is defined and conferred in a religious ceremony by a religious organization.

Mildred Loving was very quiet and did not expect her case to go to the Supreme Court. She wrote a letter to Attorney General Robert Kennedy in 1963 and he passed it along to the ACLU. Last year, on the 40th anniversary of the decision, she issued a statement urging that gay couples be allowed to marry.

Note that it took over 100 years for the Supreme Court to apply the fourteenth amendment to anti-miscegenation laws. One hundred years of tradition of anti-miscegenation laws was not reason enough and prejudice was not reason enough to uphold the practice. Nor should it be the case with same-sex marriage.

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