Dispatches from the Creation Wars

Jim Chen on the New Jersey Ruling

Jim Chen, a law professor at the University of Minnesota, has a powerful essay comparing prohibitions on interracial marriage to prohibitions on gay marriage. I’ll post a long excerpt below the fold:

Among life’s challenges, none is more difficult to undertake, and none is more rewarding when achieved, than the mission of finding one person to love above all others, and persuading that person to love you in return. The law has no legitimate basis for regulating this quest on the basis of the race or sex of one’s beloved.

The most obvious analogy supporting legal recognition is Loving v. Virginia, 388 U.S. 1 (1967). It’s such an obvious analogy that it is futile to cite any of the hundreds, thousands of sources that make the connection. But just because an argument is obvious does not make it wrong. In this instance, the Loving analogy is complete.

I take Loving personally. It was decided before I reached six months of age. I came of age in the geographic center of the American region that historically sanctioned extraordinary, even violent, measures to prevent even the hint of interracial mingling. I was born where all my immediate ancestors had been born themselves, an island at the eastern edge of World Island. My wife traces most of her ancestry to an island at the western extreme. The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive.

And so too is the suggestion that the sex of the members of a committed couple should determine that couple’s entitlement to full recognition and protection under the law.

In spite of all this, it appears that one national political party seems hell-bent on devoting the final days of the 2006 campaign to condemning the mere suggestion of same-sex marriage. For shame. A party that has nothing affirmative to offer voters besides an incitement to hate deserves no votes. To oppose equal dignity for same-sex couples is an expression of revulsion. Decent people do not express revulsion at their friends or their families. Over time decency — and love — will prevail…

When this generation shall have passed from this earth, God and/or posterity will judge us as severely for our unwillingness to confess the legitimacy of homosexual love as we today judge those who resist the rightness — legal, moral, and spiritual — of Loving v. Virginia. Yesterday Massachusetts, today New Jersey, tomorrow America from sea to shining sea.

Hear, hear. I’ve said it before and I still believe it as strongly as ever. Loving v Virginia is now nearly 40 years old. It is now so universally accepted as a correct decision that no one outside the KKK will dare to condemn it, primarily because society has so thoroughly accepted the premise at its core that no decent person today would challenge it. In 40 years, we will look back on the uproar over gay marriage and think the same thing.

When I am an old man, I will look back on these days as many of our parents did on the days of the civil rights movement and marvel at how far we have come. More importantly, we will have won this battle completely and most of those who today are so outraged at the thought of two gays getting married will harbor a bit of shame that they ever made such a big deal out of it. We will become used to the sight of gay weddings (and divorces, of course) and it will become routine, hardly worth mentioning.

And as more and more people get to know gay couples and interact with them, they will slowly but surely come to recognize their shared humanity. You see, ridiculous demonizations that portray gays as evil people out to destroy marriage simply cannot withstand contact with reality. When people get to know couples like Jason and Scott, they will see not only that their prejudices were wrong, they will see themselves. They will see two people who love each other and who have all the same problems, the same goals, the same feelings.

When their children are playing with the children of gay couples, oblivious to the artificial distinctions adults have created, they will recognize the shared humanity. They will see people dealing with all the same things they deal with every day, people who work hard to provide opportunity and support for their children. It was that kind of interaction that broke down the prejudices of race and nationality in earlier times, and it will do the same here. And we will all wonder what on earth all the fuss was about.

Comments

  1. #1 CPT_Doom
    October 28, 2006

    When their children are playing with the children of gay couples, oblivious to the artificial distinctions adults have created, they will recognize the shared humanity. They will see people dealing with all the same things they deal with every day, people who work hard to provide opportunity and support for their children. It was that kind of interaction that broke down the prejudices of race and nationality in earlier times, and it will do the same here. And we will all wonder what on earth all the fuss was about.

    How true, Ed, how true – and the proof is already out there. Poll after poll shows that those people who know and love gays and lesbians in their own lives are far more supportive of same-sex marriage and other gay rights initiatives. Which is also a counter-argument to the “innate revulsion” that the “pro-family” movement claims all people have to homosexuality.

  2. #2 steve s
    October 28, 2006

    The war against gay marriage is already lost. The reason? Even young conservatives I know don’t hate gay people like their elders. I think it’s because enough gays are out of the closet that virtually everybody young has grown up knowing at least one, and when a WingNutDaily-type retard says things like “Gay people want to burn all our houses down!!!!!!!!!!11111″ they think, my gay friend bob doesn’t want to burn anyone’s house down, you idiot.

    Among young people I know, liberal or conservative, they know gay people, and they know gay people are more or less just like them. And so they see no reason to arbitrarily discriminate against them.

  3. #3 Skemono
    October 28, 2006

    Gods, some of the comments on that post trying to dismiss the obvious analogies between interracial and gay marriage are appalling.

  4. #4 MikeQ
    October 28, 2006

    “More importantly, we will have won this battle completely and most of those who today are so outraged at the thought of two gays getting married will harbor a bit of shame that they ever made such a big deal out of it.”

    Sorry Ed. People who oppose gay marriage will still oppose it 40 years from now, they just won’t admit it. There’ll be new euphemisms to hide behind. Just as today you can’t find anyone republicans who voted for Nixon, in the future you won’t be able to find anyone who opposed gay marriage. They’ll have slunk back to their hidey-holes to sulk in bitterness.

    The most difficult thing to do on this planet is to change and reorganize your own beliefs down to the fundamental level. It can be done. It’s not easy. And it’s not the same as being “born again” or any other such nonsense. It’s tough to do. The schmucks who oppose gay marriage don’t have the strength to do it today and won’t have the strength to do it in the future. They’ll write their own history, invent new euphamisms–as I said above–for themselves to hide behind, and still meet and speak with people who agree with them. It’s easier to change the way you percieve reality than it is to change yourself.

  5. #5 Ed Brayton
    October 28, 2006

    Mike-

    40 years from now, most of the people who care will be dead, replaced by people who have known gay people all their life and don’t have the prejudice. The same thing happened with earlier forms of prejudice and it will happen here as well.

  6. #6 Daniel Kim
    October 29, 2006

    I have used this type of analogy to discuss this issue with my own daughters. I remind them that, when my wife and I married, the last anti-miscegenation law was still on the books in (Can’t remember which state), although it was not actively enforced. When I was growing up, I had a persistent feeling of unease at interracial marriage, and now I am in one, and my parents objected to our marriage in part because of the race issue.

    I remind my daughters that, when I was a child, interracial marriage was regarded as “unnatural”. It was a violation of the order of Nature, as well as the laws of God and Man. It was my own encounter with the implacable power of love that broke this barrier of prejudice in me.

    Personally, I know people whose lives and children are suffering from the effects of divorce and remarriage. I will never take ‘marriage preservation through exclusive heterosexuality’ as a serious issue until the advocates of ‘marriage fundamentals’ go whole hog for prohibiting remarriage after divorce. When they are willing to label Ronald Reagan as an adulterer, according to the words of Jesus Himself, then I will believe they are really committed.

  7. #7 Chet Lemon
    October 29, 2006

    One big problem when we’re talking about Loving in relation to the NJ decision. The majority completely rejected Loving in it analysis. Loving affirmed the sanctity of marriage between a man and a woman (the “person” language in the opinion reflects the given that marriage is defined as legally-recognized union between one man and one woman) and struck down laws that were concocted to deny individuals the same rights enjoyed by other individuals. The court stated this clearly, distinguishing between interracial man-woman unions (which do not change the definition of marriage because well, there is a man and woman involved) and homosexual relationships.

    Marriage itself was not created by a smokey-room cabal of evil heteros scheming to stick it to homosexuals and first cousins. Marriage is what marriage is, with certain reasonable restrictions applied equally to every person, because of the one thing a man-woman union can offer society that no other combination or number of people can offer . What that is is so obvious, it needs not be mentioned. No one needs to rattle off hypotheticals about couples who can’t or don’t want to offer society that obvious thing. We all know that the law addresses the general and the way marriage is set up affords every person the same rights and restrictions in regard what person one may or may not marry. This fact is unchallengable and this why Loving, though cited in every piece of litigation regarding the redefinition of marriage, is inapplicable and has been rejected time and time again by courts in Red States and the Bluest.

    Like it or not, marriage is not, as advocates of the redefining of marriage argue, a government affirmation system for a couple or a group of people who want to tell the government that they have a close relationship. If it were, how could we deny a move to license friendships elevating them to equal status with loving sexual relationships? Can’t a friendship be so close, so committed and offer the same thing to society as a homosexual sexual relationship that we can’t possibly deny these life-long, loving companions the same rights of “marriage” in some sort of “friendship union?” And if one is a bi-sexual, why should that person, who cannot possibly live a fulfilling life with only one partner of one sex be denied the right to marry one of each when she loves both? If composition is not sacrosanct, why is the number of participants?

    Back to the opening point, here is the passage from the opinion that makes any allusion to Loving in the context of the NJ case completely illegitimate, so what is so “obvious” to Prof. Chen was rejected outright by the NJ SC:

    “Plaintiffs also rely on Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed.2d 1010 (1967), to support their claim that the right to same-sex marriage is fundamental. In Loving, the United States Supreme Court held that Virginia’s antimiscegenation statutes, which prohibited and criminalized interracial marriages, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Id. at 2, 87 S. Ct. at 1818, 18 L. Ed. 2d at 1012. Although the Court reaffirmed the fundamental right of marriage, the heart of the case was invidious discrimination based on race, the very evil that motivated passage of the Fourteenth Amendment. Id. at 10-12, 87 S. Ct. at 1823-24, 18 L. Ed. 2d at 1017-18. The Court stated that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Id. at 10, 87 S. Ct. at 1823, 18 L. Ed. 2d at 1017. For that reason, the Court concluded that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Id. at 12, 87 S. Ct. at 1823, 18 L. Ed. 2d at 1018. From the fact-specific background of that case, which dealt with intolerable racial distinctions that patently violated the Fourteenth Amendment, we cannot find support for plaintiffs claim that there is a fundamental right to same-sex marriage under our State Constitution. We add that all of the United States Supreme Court cases cited by plaintiffs, Loving, Turner, and Zablocki, involved heterosexual couples seeking access to the right to marriage and did not implicate directly the primary question to be answered in this case.”

  8. #8 Ed Brayton
    October 29, 2006

    Chet Lemon wrote:

    Marriage itself was not created by a smokey-room cabal of evil heteros scheming to stick it to homosexuals and first cousins.

    Which might be relevant if anyone was making such a claim. That’s an incredibly silly strawman.

    Marriage is what marriage is, with certain reasonable restrictions applied equally to every person, because of the one thing a man-woman union can offer society that no other combination or number of people can offer . What that is is so obvious, it needs not be mentioned.

    Again we’re back to this ridiculous argument that gay marriage is bad because straight marriage is good. I agree with you completely, marriage is a very good thing for society in a vast number of ways. Now if someone was proposing to do away with marriage, this might actually be a relevant argument. Unless you can show some logical reason why allowing gays to marry will stop straights from marrying, this is just a nonsense argument. Yes, marriage is a good thing. And once we allow gays to marry, every single marriage that currently exists will continue to exist, and every single marriage that would have existed in the future will still exist in the future. We’ll just have more marriages, this time involving gay people, and that will be a very good thing for those people and for the children they raise (and they raise a whole lot of them, whether you like it or not) for all the same reasons why straight marriage is good for straight couples and their children.

    We all know that the law addresses the general and the way marriage is set up affords every person the same rights and restrictions in regard what person one may or may not marry. This fact is unchallengable and this why Loving, though cited in every piece of litigation regarding the redefinition of marriage, is inapplicable and has been rejected time and time again by courts in Red States and the Bluest.

    Actually, you’re giving us the exact reason why such analogies are applicable by using the very argument rejected in Loving. The state of Virginia argued exactly what you are arguing with regard to race, that the law contains the exact same restrictions on both races and therefore it provides “equal protection”. The court rejected that argument in Loving, and rightly so. Now we’re hearing the same argument in regards to gay marriage, that it has the same restrictions on both men and women and therefore can’t violate equal protection. And this, again, is a totally irrelevant argument, for the obvious reason that no one is arguing that bans on gay marriage constitute gender discrimination (there are a few who make that argument, but not here). At any rate, the fact that you are making the very same argument made by the defense in Loving is just evidence for why the analogy is a good one.

    You’re also completely missing the point of Chen’s piece. He is making a very broad analogy between two forms of discrimination and arguing that rulings like this help combat such discrimination just as Loving combatted an earlier form. He is not making a legal argument about the specific applicability of Loving to this New Jersey ruling. Indeed, he is barely making any legal argument at all, only a moral one.

  9. #9 dan
    October 29, 2006

    Chet,

    I’ll jump in with a couple of points.

    1. Prof. Chen is not saying that the same precise Equal Protection reasoning in Loving is applicable to gay marriage. He is saying that the situation of gay couples in society today is closely analogous to the situation of interracial couples prior to Loving, and that the social discrimination driving opposition to gay marriage is of precisely the same stripe as the discrimination involved in opposition to interracial marriage.

    As an example, your point:

    Marriage is what marriage is, with certain reasonable restrictions applied equally to every person

    This was exactly the argument used to justify anti-interracial marriage laws in Loving.

    Another example: You constantly refer to gay marriage as a “redifinition” of marriage.
    Guess what? Opponents of interracial marriage also claimed that marriage had always historically been defined as between a man and a woman of the same race – they saw interracial marriage as a “redifinition” of marriage too.

    2. You argue that

    Like it or not, marriage is not, as advocates of the redefining of marriage argue, a government affirmation system for a couple or a group of people who want to tell the government that they have a close relationship.

    Right. The LEGAL definition of marriage is this: Marriage is a huge set of legal entitlements.

    You may have your MORAL or RELIGIOUS or SOCIAL definitions of “marriage.” Who cares? We’re talking about what the LAW should recognize: not what a church should recognize. And legally, marriage is a large number of legal entitlements.
    Let’s take one out of over a thousand examples: every state allows a marital evidentiary privilege in court: spouses can refuse to testify about things they said to each other in certain situations.
    The law is discriminating against gay people by failing to allow them to enter into a LEGAL relationship in which they can have similar confidential communications with another person.

    3. If you want a precise constitutional argument of why refusing to allow same-sex couples to marry is a violation of Equal Protection, look not to Loving. Look to Lawrence v TX:

    The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

    “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

  10. #10 Lee
    October 29, 2006

    Civil marriage is a large set of mechanisms, codified in law and case law, to deal with the issues created when two people become a single merged economic unit. Very little of marriage law has to do with children – where it does it mostly addresses presumed parentage of the husband to children born in marriage, and the rights o parents toward their children upon dissolution. Laws for the protection of children are largely independent of marraige law.

    Marriage is historically economic – remember that not too long ago marriage was essentaily the transfer of a daugher as property of the father, via marriage, to wife as property of the husband. Up until recently the wife was considered an economic appendage of her husband. VERY recently – I was well into my teens before my mother was considered to have her own independent credit rating and able to get her own credit card.

    We have modified that law as we have recognized the economic and legal equality of the partners in marriage – civil marriage now spells out the mechansism for dealing with that equality, for protecting the rights of each aprtner and of civil entities tha tinteract with married partners, in the eocnomic partnership that marriage creates and *also* requires other parts of society to recognize.

    Denying these civil, economic and legal protections to peopel simply because of whom they choose as their partner, is clearly discrimination of a base and unjustifiable sort.

  11. #11 Matthew Young
    October 30, 2006

    Just to follow on from Dan’s point above:

    You may have your MORAL or RELIGIOUS or SOCIAL definitions of “marriage.” Who cares? We’re talking about what the LAW should recognize: not what a church should recognize.

    My wife and I are, not unusually, married only in law because we are both enthusiastically anti-religious. The fact that the church doesn’t recognise our marriage is as irrelevant to me as whether or not it is recognised by Winne the Pooh.

    The fact that we have had plenty of sex both in and out of wedlock and none of it for the purposes of procreation is a violation of the biblical concept of marriage, is it not? And if it isn’t then our utter contempt for religious institutions and dogma surely is. Does this violation of biblical marriage mean we should be denied legal status as a married couple? I’d like to see these cretins making that argument in a court of law.

  12. #12 Coin
    October 30, 2006

    The fact that the church doesn’t recognise our marriage is as irrelevant to me as whether or not it is recognised by Winne the Pooh.

    WHY DO YOU HATE WINNIE THE POOH???

  13. #13 Terrance
    October 30, 2006

    And some of us will look back with just a little bitterness that we were required to “prove” our humanity in the first place. Being used to it doesn’t make it any less bitter a pill to swallow.

  14. #14 Ed Brayton
    October 30, 2006

    Terrance-

    Understandably so. America evolves slowly, to be sure, but we usually end up in the right place in the end.

  15. #15 Jim Chen
    October 30, 2006

    Regarding Terrance’s comment:

    And some of us will look back with just a little bitterness . . . .

    Yes. Again, an analogy to the civil rights movement is apt. In matters of justice, nothing comes quickly, easily, or free of cost. And as Martin Luther King, Jr., said, justice delayed is justice denied. But in the end we Americans have always managed to achieve some sort of Poetic Justice. Given the alternative outcomes, I’ll take it.

    Ed and commenters, thank you very much for this discussion. It has been a refreshing change from the generally hostile discussion at Jurisdynamics and at The Volokh Conspiracy.

  16. #16 Terrance
    October 31, 2006

    The only thing I’d add is that while we’re waiting for the rest of our fellow citizens to catch up, our families live without the benefits and protections that other families enjoy.

    The worst of it is that those benefits and protections for the most part only kick in during times of crisis, like the illness or death of a partner. And those scenes usually play out away from the public eye where we’ve been busy “proving our humanity.” They take place in hospital rooms and hallways, in courtrooms and funeral homes, and behind the doors our own homes.

    So at first glance, we don’t appear to be lacking anything that other families have, and when the consequences of not having the benefits and protections of other families comes into play, it’s when not very many people are looking.

    And for most of us, for the time being, there won’t be any remedy for it.

  17. #17 DuWayne
    October 31, 2006

    Terrance -

    This is what convinced me to get angry and loud about it. I mean it is clear to me that gay marriage is going to happen. I even think that eventualy “marriage” will no longer be the civil standard. I used to be just fine with waiting it out – easy for someone who can have those legal protections to say.

    But then I started reading horror stories, many of which make me weep. Some include kids taken away from their only surviving parent, because that parent is gay and not their natural parent. Others include persons driven to poverty due to the loss of a supporting partner. The common theme, people driven to despair and personal loss, based soley on their sexual orientation, or that of their parents.

    I am sorry that our society has so far to go and that so many families continue to suffer – right now, because of backwards neanderthals who fight against the very “family values” they claim to hold so sacred.

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