Last week I participated in a discussion sponsored by the Federalist Society at Stanford Law School in California on redefining marriage to include same-sex couples, and its collision with the First Amendment rights of those who define marriage as one man and one woman only. We had a great discussion on some of the cases we have described here, like Elane Photography in New Mexico (who was sued for discrimination for declining to photograph a same-sex commitment ceremony), Jen Keeton in Georgia and Julea Ward in Michigan (who were expelled from graduate school programs in counseling from Augusta State and Eastern Michigan University, respectively, for refusing to change their beliefs that same-sex behavior is morally wrong).
What I did not expect at Stanford was a debate on the relevancy of the 1967 Supreme Court decision striking down Virginia’s law banning interracial marriage, Loving v. Virginia. Many who support redefining marriage to include same-sex couples are convinced that this case greatly supports their position. It does not. I have found that many people have not read the decision, or do not understand what the Supreme Court ruled in that case. The decision doesn’t help them. So it is a dreadfully flawed argument and a non sequitur to argue as many do that ”just as a ban on interracial marriage was unconstitutional, so a ban on same-sex marriage is unconstitutional.”
I have earlier discussed the deficiencies in analogizing a law defining marriage as one man and one woman as the law struck down in Loving v. Virginia. Because so many find the argument persuasive, let me state here what I said to the law students at Stanford:
The Virginia law only banned white people from having an interracial marriage. An African American man could marry a woman of Asian descent under the Virginia law struck down by the Supreme Court. That interracial marriage was OK because it did not include any white people. The obviously uneven application of the law based on race is why the Supreme Court struck it down. These despicable laws did not say, “whites can only marry whites, blacks can only marry blacks, Asians can only marry Asians,” etc., but many wrongly assume that is what those laws said.
Race is different than sex. It would have been unconstitutional too if the miscegenation law said, “whites can only marry whites, and blacks can only marry blacks, ” etc. But that’s not what the Virginia law struck down by the Supreme Court said. That hypothetical does not provide any precedent for striking down a regular marriage law. Even if the law did say that, it’s not important, because race is different from sex. Only one man and one woman can produce a child, and the parents can be of any race. Two men together or two women together will never produce a child. So having an opposite sex couple is essential for producing children. What is critical is having one man and one woman. The parents’ race is irrelevant in their ability to reproduce. It is rational, in fact, it is wise for a society to urge men and women to get married in order to produce and raise their children, because they represent the next generation of their society.
Race has never been a universally-accepted element in the states’ definition of marriage. States generally have agreed that people seeking marriage must meet several criteria. For example, the two people seeking marriage must be a man and a woman, they cannot be married to anyone else, they both must possess the mental capacity to consent to marriage, they cannot be near relatives (like brother and sister) and they both must be above a certain age. Race has not been a universally-accepted part of the definition of marriage. For example, not all states banned white people from having an interracial marriage. Some states, like Virginia, allowed whites to marry nonwhites for many decades before imposing a ban on whites marrying nonwhites. The existence of miscegenation laws is a sordid historical fact. The court decisions striking down those laws offer no principle of law that compels legalizing same-sex marriage.
Some states did not ban interracial marriages consistently. Virginia was faced with the dilemma that one of its founders, John Rolfe, married a nonwhite woman, the famed Pocahantas. Virginia resolved this dilemma by making Pocahantas an honorary white person, and exempted marriages (in some circumstances) where a white person married a Native American.
I hope I convinced at least some of the law students at Stanford to stop embracing the false parallel between Loving v. Virginia and the efforts to legalize same-sex marriage.