On June 6, 2014, Wisconsin joined the growing list of states finding their marriage laws at the mercy of the federal judiciary, after Judge Barbara Crabb overturned that state’s same-sex marriage ban. Crabb’s decision, which came just two weeks after federal judges in Oregon and Pennsylvania made similar rulings, is part of an alarming trend materializing across the country, as federal courts continue to accept and enforce an entirely new form of marriage without the express approval of a state’s voters. In fact, in the year since the Supreme Court’s ruling in U.S. v. Windsor (June 2013), a total of thirteen other states have had their gay marriage bans either reversed or altered in a spectacular violation of American federalist principles.
What’s perhaps most significant about these cases is that every single opinion invokes the landmark Supreme Court case Loving v. Virginia (1967) in some capacity, with most judges pointing to it as a controlling legal and philosophical precedent. For those unfamiliar with U.S. judicial history, in Loving v. Virginia the Supreme Court declared Virginia’s interracial marriage ban unconstitutional and, by extension, overturned all other existing state bans. Proponents of same-sex marriage frequently equate interracial marriage to gay marriage in their media propaganda, perhaps recognizing the political benefits of likening their ideological opponents to nineteenth-century racists. Amazingly, some on the left have even gone so far as to claim the push for gay marriage is the “New Civil Rights Movement.”
Although both the media and these federal judges perpetuate this misguided analogy, in reality the radically different circumstances of Loving v. Virginia and interracial marriage render them inapplicable to today’s battle over same-sex marriage. Outlined below are a few of the most important disparities:
History and Tradition:
- In the scope of human history, few societies ever mandated racialized distinctions for marriage. Even in America, interracial marriage was not uncommon or even outlawed for the first century of the colonial period, and although Southern states rigorously enforced their interracial marriage bans, the majority of the Northern states have never had such laws. Historical examples of interracial unions in America are easy to find, from Pocahontas and John Rolfe (1614) to Frederick Douglass and Helen Pitts (1884), and by the time of Loving v. Virginia only sixteen states still upheld their bans.
- Today the opposite is true, as presently only seventeen states permit same-sex marriage, with half of them arriving there through judicial intervention rather than voter-supported legislation. Indeed, until just a few decades ago it was a universally accepted truth in every society that ever existed that the institution of marriage could only include participants of different genders. This truly extraordinary connection to history is largely ignored and undermined by the comparison to interracial marriage.
Establishing a New Right:
- According to the Court, a fundamental right is one “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [it] were sacrificed.” Because such rights only apply to conduct with a “deeply-rooted history” in America, the fundamental right to marry necessarily refers to marriage only as a strictly heterosexual institution–and indeed, in U.S. legal history, this right has only ever been applied to heterosexual couples. In Loving v. Virginia the Court did not construct a new right but rather extended to racial minorities protection for the existing fundamental right to marry.
- Seeing as Massachusetts became the first state to issue marriage licenses to gay couples only one decade ago, no judge can rationally argue that same-sex marriage fulfills the historical requirements of a fundamental right. Thus, couples challenging the courts today seek to usurp the states’ exclusive right to define marriage and instead establish an entirely new right that is not “fundamental”–the right to marry an individual of the same gender.
- Virginia’s compelling interests in Loving v. Virginia were blatantly prejudiced, designed to protect white supremacy while further subjugating racial minorities, and failed to present any rational state motive for banning interracial unions. The state’s stated interests included the preservation of “racial integrity,” protection from “corruption of blood,” the prevention of a “mongrel breed of citizens,” and the suggestion that God “did not intend for the races to mix.”
- Gay marriage bans were not crafted as a way for a gay-hating, heterosexual majority to violently oppress a homosexual minority; rather, they were born out a legitimate concern for the stability of marriage and the well-being of society. For instance, in Virginia’s same-sex marriage case (Bostic v. Rainey), the state lists (1) the interest of tradition, (2) a proper balance of federalism, and (3) the state’s interests in both “optimal childrearing” and “responsible procreation” as its interests. Although some judges, like Arkansas’s Judge Piazza in Wright v. Arkansas, try to claim that these interests are “eerily similar” to those from Loving v. Virginia, in reality they resemble nothing close to the racial discrimination of decades past.
Thus, the analogy frequently drawn between interracial and same-sex marriage not only misrepresents the legal characteristics of gay marriage cases, but it also leads people to believe in an exaggerated and inaccurate correlation between the plight of gays in modern America and that of racial minorities in the past few centuries. To compare the systematic, state-sanctioned oppression of African-Americans to the exclusion of homosexuals from an intrinsically heterosexual institution built upon thousands of years of tradition both unjustly minimalizes the Civil Rights Movement and unfairly portrays “marriage equality” as a comparable movement in terms of scale and significance.
The comparison also serves an additional political purpose: by crafting a narrative that decries the injustice of preventing individuals from “marrying who they love,” as was the case with interracial marriage, the left distracts from the all-important fact that same-sex marriage cases fundamentally alter the definition of marriage in a novel and dangerous way. Because of same-sex unions, marriage is now largely considered to be a consent-based institution without any gender distinctions or procreative connections.
If the courts continue to endorse the idea of marriage as a mere expression of love, rather than a stabilizing social institution requiring regulation, then what’s to stop them from permitting other unconventional unions? If it’s now unconstitutional for a state to define marriage in a way that prevents anyone and everyone from accessing the institution, then what legal barriers exist to preserve bans on, say, polygamous or even incestuous unions? If “love is love” and anything standing in the way of that should be considered a crime of the greatest magnitude–as the left frequently suggests–then wouldn’t it be hypocritical to stop just at gay marriage?
The misguided comparison between gay and interracial marriage clouds the real potential of this “slippery slope,” which is actually already happening. Just last December, Utah faced a lawsuit brought by the polygamous stars of the TV show “Sister Wives,” and the judge nearly struck down the state’s polygamy prohibition precisely because federal judges are suddenly deciding that a state definition of marriage as between one man and one woman is unconstitutional. America is a nation of over 300 million incredibly diverse individuals, and even though it may be uncomfortable to think about, polygamists as well as people who practice incest undoubtedly exist. They’ll want their “freedom to marry” just as gay couples do, and the only real reason they won’t receive that right any time soon is because their behaviors are still considered taboo. However, seeing as just a few decades ago homosexuality was also taboo, yet today popular culture portrays gay marriage as a new norm, it’s hardly a stretch of the imagination to foresee the further disintegration of society’s most sacred institution.
Before we succumb to either the emotional rhetoric of the media or even our own sympathies in the marriage debate, we should think long and hard about the potential consequences of gay marriage–consequences that make the push for “marriage equality” entirely different from the Civil Rights Movement.