Gay Marriage: Made Legal By the Constitution?

The 141^st anniversary of the 14^th Amendment is today. The 14^th Amendment’s Due Process Clause and Equal Protection Clause have served the intended purposes when tested in court cases, one of which is the 1959 US Supreme Court case of Loving v. Virginia, granting marriage rights to interracial couples.

Mildred Jeter and Richard Loving got married in Washington, D.C. in June 1958, and then returned to their home in Virginia. They were arrested one night while having sex in their home, because it was illegal for them, being an interracial couple, to have sex. In 1958 both marriage and sex were illegal for interracial couples in the state of Virginia.

The US Supreme Court unanimously decided to overturn the convictions. Thus, the Commonwealth of Virginia’s argument (that the law prevented both black and white people from marriage to someone of a different race, with identical punishment for violators of either race, could not be construed as discrimination based on race) was dismissed. Virginia’s anti-miscegenation statute breached Due Process and Equal Protection of the 14^th Amendment, as ruled by the court. The court decision stated:

 “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. 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.”

The Supreme Court deemed anti-miscegenation laws as racist, and were originally ratified to enable white supremacy:

“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”

50 years after the Loving v. Virginia ruling, our country is faced with a parallel situation concerning the issue of same-sex marriage. Certain states allow same-sex marriage, others will recognize the rights of a couple who married in a different state, most ban same-sex marriage altogether. Then there is California, which just has its own huge mess of a situation.

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The California Supreme Court ruled, in May of 2008, all same-sex marriage bans as unconstitutional, allowing 18,000 couples to get married before Prop 8 passed that November. It was once again illegal for same sex-couples to marry in the state. However, the marriages of the 18,000 same-sex couples remain valid and recognized.

Massachusetts, Connecticut, New Hampshire, Vermont, Maine, and Iowa are those states with legal marriage for same-sex couples. If a same-sex couple married in California moved to any of these states, nothing happens to the legal status of the marriage. If the couple moved to New York or Washington, DC, for example, their marriage would also be legally recognized, even though those places do not grant marriage rights. However, if New Jersey was the state they moved to, their marriage is no longer valid, as it would not receive legal recognition by the state.

While there is no risk of arrest in the last example, they are no longer legally married, as is also the case in 42 other states. As far as the federal government is concerned, the couple is not married in any of the 50 states.

The 1959 Supreme Court of the United States decision made it unmistakably clear that “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival….”

But whether or not race and sexual orientation or identification can be seen in the same way becomes a pertinent question.

Massachusetts is going above that question by suing the federal government using the claim that the Defense of Marriage Act is violating the Constitution, as states are obligated to discriminate against gay and lesbian couples. In the filed complaint in US District Court, the Massachusetts Attorney General said “Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.”

In New DOMA Lawsuit is the Most Exciting Yet, Emma Ruby-Sachs wrote, “The genius of this complaint is that it takes a conservative argument – that liberal states should not be permitted to impose their tolerance and acceptance of homosexuality on the rest of the country – and turns it around to benefit a state that really pioneered gay rights in the U.S.

“Even a conservative justice would support the notion that federal encroachment over those few areas where states have sovereign jurisdiction is unconstitutional. In this case, that principle supports, at the very least, limiting the application of DOMA when it affects state programs with federal funding.

“If a conservative justice chooses to oppose the argument put forward by Massachusetts Attorney General Martha Coakley, then their logic could be used in the future to justify federal enforcement of equal rights on those states that oppose same-sex marriage. If state’s no longer have absolute jurisdiction over marriage, a liberal government can interfere with a conservative state’s policies.”

Equal rights for everyone, including gay and lesbian people wanting to marry, might already be encompassed by the Constitution, as it reads:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; not shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.”