Litigants and lawyers in recent cases, who have asserted that “equal protection of the laws” entitles same-sex couples to a marriage license, often cite the 1967 decision of the United States Supreme Court, in Loving v. Virginia, as a legal foundation for their argument. This precedent has been referenced in recent controveries in California and Iowa, as well as earlier cases in Massachusetts and New York.
When the Supreme Court ruled on Mr. and Mrs. Loving’s suit against the State of Virginia, it overturned all state laws which prohibited, or imposed criminal penalties for, inter-racial marriage. Perhaps the sentence most cited from that decision is “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
The NAACP is on record supporting application of the Loving decision in same-sex marriage cases. In the New York case, Hernandez v. Robles, NAACP attorneys submitted an amicus curiae brief that “the legal questions raised here and in Loving are analogous. The state law at issue here, like the law struck down in Loving, restricts an individual’s right to marry the person of his or her choice.”
That analogy is pathetically misplaced. The Supreme Court’s ruling was founded on the understanding, “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
There certainly is not “invidious racial discrimination” in defining marriage as the union of a man and a woman. Is there some other “invidious discrimination,” i.e., as to sex or sexual preference? The Supreme Court, and the Virginia statutes submitted for review, all plainly assumed that marriage is a specific human relationship between a man and a woman. No party, and no amicus curiae, suggested otherwise at the time.
The logic offered more recently appears to be, that if a “white” man cannot be barred from marrying a “colored” woman, then a man of any color cannot be barred from marrying a man of any color, and a woman cannot be barred from marrying a woman. Taking the phrase “the person of his or her choice” entirely out of its legal context and usage, that is a semantically plausible argument.
When the facts and law of the entire case are examined, that argument has no substance whatsoever. There is no reason a state needs to provide a “rational basis” to “discriminate” on the basis of “sexual preference,” because no discrimination has occured.
If there is a direct analogy to Loving v. Virginia, it would apply to a state law prohibiting heterosexuals from marrying anyone but another heterosexual, and homosexuals from marrying anyone but another homosexual. Is anyone fighting for the constitutional right of heterosexuals to marry a gay person of the opposite sex?
The State of Virginia argued that it had not discriminated on the basis of race, because the penalties of its statute applied equally to “white” and “colored” persons who violated the law. There was some precedent for that, an 1883 case called Pace v. Alabama, concerning a statute imposing greater penalties for inter-racial adultery or fornication than for the same crimes (as they then were) between individuals of the same race.
Justice Potter Stewart observed that “it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” Although the rest of the court did not consider that sufficient to decide the case, Chief Justice Earl Warren cited Stewart’s statement favorably in the opinion of the court.
There are no state statutes at issue which make the same behavior by either a heterosexual or a homosexual punishable as a crime, and apply the same criminal sanctions to both. The analogy there would be that heterosexuals and homosexuals are both equally prohibited by law from marrying each other. No law bars a person defined as “heterosexual” from marrying a person defined as “homosexual.”
State marriage laws which implicitly or explicity define marriage as a specific human relationship between a man and a woman have excluded no man, and no woman, from entering into this relationship. Nor has anyone questioned that a “man” and a “woman” are two distinct types of human being – unlike racial classifications, which are artificial, and based on superficial differences. Indeed, the word “homosexual” would have no meaning, if men and women were not different.
Mr. and Mrs. Loving entered into the same human relationship as every other married couple in the State of Virginia. The union of two persons of the same sex, however sincere, stable, monogamous, tender, affectionate, and rewarding, is not the same relationship as the union of a man and a woman. To bar the Lovings from marrying, the state had to impose distinct identities upon them. Quite the contrary, the plaintiffs in gay marriage cases have had to wrap themselves in a distinct identity to make out any case at all.
Further, criminal penalties for same sex marriage are not at issue. It has already been established in Lawrence v. Texas that a state may not impose criminal penalties on private homosexual relations between consenting adults. The issuance of a marriage license, if available, neither makes the relationship more or less of a crime. There is a huge difference between the right to make such private decisions, without interference by the police, and an asserted right to receive a license, formally recognizing a specific relationship. It is an important legislative question, but not a constitutional question.