John Aravosis of AmericaBlog asks precisely the right question:
Bush says courts shouldn’t be permitted to decide who can marry who. That’s exactly what happened in Loving v. Virginia, and the public was NOT happy about it. So, rather than pull some cute argument about how blacks aren’t like gays, Bush needs to tell us directly – if the courts aren’t empowered to decide who can marry whom, then is the Loving v. VA decision wrong since an activist court overruled the will of the people?
Don’t hold your breath waiting for an answer. But in point of fact, we don’t need Bush’s answer; we have the answer from conservatives at the time of the Loving decision. And not only did the reasoning of the ruling being overturned by the Supreme Court mirror the reasoning of the anti-gay marriage movement today, but the conservative reaction to the ruling was also identical.
Opponents railed against the decision using the exact same arguments conservatives use today against decisions they don’t like. It was those infernal “unelected judges” using their authority to “overturn the clearly expressed will of the people” by issuing a ruling that was clearly opposed to what God himself had intended. Indeed, the lower court ruling that Loving overturned made pretty much the same argument against interracial marriage as we hear against gay marriage from the religious right today:
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.
Yes, folks, a Federal judge actually said that in a court ruling. It might as well say, “Almighty God created Adam and Eve, not Adam and Steve, and his Holy Word says that marriage must be between a man and a woman. But for our sinful interference with His divine arrangement, there would be no cause for such marriages. The fact that he made us so that only a coupling of man and woman can create children shows that he did not intend for gays to marry.”
Bazile was kind enough in his magnanimous generosity to sentence the couple in question to a year in prison, but then to suspend it for 25 years – if they agreed to leave the state and never come back. The Supreme Court overturned such laws in a unanimous ruling, and rightly so. But as I said, the reaction from the right was identical to their reaction today and virtually every argument they use today against gay marriage was also used against interracial marriage, including, believe it or not, the claim that they can’t have children. A Missouri judge in 1883 issued a ruling that said:
“It is stated as a well authenticated fact that if the [children] of a black man and white woman, and a white man and a black woman intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites.”
But from the Bork/Scalia “originalist” perspective, they would logically have to argue that Loving was decided wrongly. Miscegenation laws have at least as long a history as sodomy laws, going back to the common law and existing at the time of our Constitution. Even with the passage of the 14th amendment, most states had laws against interracial marriage. In fact, some of the framers of the 14th amendment specifically promised that that amendment would not overturn such laws.
How, then, could a conservative originalist possibly argue that Loving was correctly decided? I doubt they could make much of a case for that. But neither do they want to say that Loving was wrong. And Aravosis thus asks a prescient question. If the same arguments apply in both cases, but they refuse to apply them equally, why should those arguments be taken seriously?