Asking the Right Question

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?


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From David Rakoff's Fraud:

I'm reminded of those fanatically religious homophobes who stand on the steps of St. Patrick's Cathedral during Gay Pride, holding signs that say "Adam and Eve, not Adam and Steve!" I have always wanted to go up to them and say, "Well, of course not Adam and Steve. Never Adam and Steve. It's Adam and Steven."

I'd serious like to see an attempt to answer this. not to ridicule, i just want to know what the way around this could possibly be.

Two decades before Loving, I was in Selma, AL for flight training. In 1967 they were all in a roil about the civil rights legislation passed in 1964 and 1965. When some "uppity" blacks insisted that they be allowed to use the municipal swimming pools, just like anyone else, the town closed down the three pools rather than allow blacks to be in the same water as whites.

In a similar snit, they were still in a tizzy about the Brown v Board of Education decision from the decade before. I still remember the "IMPEACH EARL WARREN" billboard just east of the Edmund Pettus Bridge.

To his credit, Chief Justice Warren was able to secure a unanimous ruling in Brown. That didn't stop the complains about activist judges, as evidenced by the billboard, and shows that railing against activist judges has a history that goes back more than 50 years.

On a lighter note, the closing of the municipal pools delighted a local preacher no end. He was famous for his calling the morning radio show complaining about the pools because of the "promiscuous mixed bathing" that occurred there. Boys and girls, naked but for their swim suits cavorting around in the pool together. Nothing good could come of that, he warned us. Those were rather modest one piece swim suits girls wore then. I wonder what he would think of today's bikinis?

My guess is a response to this would involve the child-bearing issue...namely that the 1883 judge was hideously wrong, but without extreme involvement of cutting edge technology (I don't know exactly where we are now), a gay couple actually can't have biological children.

That, of course, doesn't cut to the heart of the matter: Can the courts decide something over the will of the people? Which of course they we really not decide EVERYTHING by vote for efficiency purposes only?

By ThePolynomial (not verified) on 05 Jun 2006 #permalink

"do we really not decide EVERYTHING by vote for efficiency purposes only?" (sorry, forgot the codes to set it off)

But note the kind of vote they're asking for: one of legislators (which would unfortunately probably pass) and not a sort of plebiscite -- one that, based on recent polls, suggests a very close vote (50 to 47% I heard said -- on Fox News of all places I think).

But the calling out of "activist judges" is one of pure and simple hypocrisy, as has been well documented here by Ed and other posters -- hence why they're concerned about the pro-life (or anti-abortion, anti-choice) views of judges.

The claim that gay couples cannot have children biological or otherwise is bogus. Gay female couples have often used semen donors just like many straight women, both single and married. Similarly male couples can hire a surrogate mother to carry a pregnancy to term. Now it's true that the offspring is the biological child of only one half the couple, but that's identical to the offspring of heterosexual couples who have also used semen donors or surrogate mothers. Gay marriage has been with humankind for several millenia. It's just that is has only recently begun to be recognized and respected so that it's practitioners didn't have to fear for their lives if revealed.

Anyone remember the book that came out in the early 1990s (probably 93 or 94) that argued that the Catholic Church married gay couples -- in the church itself -- while hetero marriages were conducted outside (since they weren't for love)? I think the arguments (it was an academic book, introduced to the public through Doonesbury) were refuted though.

MB69, the book is "Same Sex Unions in PreModern Europe" by John Boswell, who also wrote "Christianity, Social Tolerance, and Homosexuality," which argued that the anti-gay teachings that arose in the Christian church with a vengence only around the 12th or 13th century were not the product of the relatively weak anti-gay biblical passages, rather the passages were used to justify a social movement.

I don't think his research into the same-sex blessing ceremonies can be fully refuted - the blessings existed, although some have argued they were merely friendship blessings (although Boswell has some compelling counter arguments to that). The reality is that the blessings are so obscure and there is so little evidence for their use that his interpretation is as supportable as anyone elses.

Having read both books, in fact, it seems to me that later writers, rather than Boswell, really made his arguments seem stronger than he made them out to be in his books.

Yes - the percentage of the population in favor of gay marriage today is much higher than the percentage who were in favor of interracial marriage at the time of Loving... The arguments are almost exactly the same, and they are as bogus now as they were then.

And if the whole "they can't have children" thing is allowed to stand, what's next? Compulsory child-bearing and annulment of all marriages where one partner is found to be infertile? Shades of Romania and Papa Ratzi's latest diatribe against Canada!

virtually every argument they use today against gay marriage was also used against interracial marriage

Having done a great deal of research into this myself, I have found pretty much every argument was uttered then but two:

1) Protecting the "sanctity of marriage". This one is replaced, of course, by the efforts to protect the "purity of blood". And I've also found some hints of people saying this: in this speech it's claimed that people said it, but no specifics are given; and in one newspaper it was reported that a bunch of governors railed against the second Jack Johnson marriage as "defiling this most sacred union" (that's not verbatim, mind)... but I can't find that actual quote in the proceedings of the conference in which this was supposedly uttered.

2) This would "change the definition of marriage". This is often raised, in fact, to counter the miscegenation analogy; so if you ever asked someone the above questions, their rejoinder would likely include that phrase somewhere.

When I started writing this, I thought there were three "reasons" to ban gay marriage I hadn't found in the literature on miscegenation, but I can't remember the third, if there was one.

By the by... maybe the next time you write a post like this you could include some actual quotes that support your position that people were saying the same thing about legalizing interracial marriages?


Please email me. I would be very curious to see some of your research on the matter.