Maybe it was the burritos from Chipotle that lured the standing room only crowd of 150 to the debate November 8 at the University of Virginia Law School on the Perry (Prop 8) case in California that seeks to redefine marriage.  The Federalist Society chapter sponsored the event, and invited Matt McGill of Gibson Dunn and me to debate whether Proposition 8, the amendment to the California Constitution defining marriage as one man and one woman state voters approved in 2008, violates the U.S. Constitution.  ADF attorneys have been serving on the team of lawyers headed by Chuck Cooper of Cooper and Kirk in defending Prop 8.

    I want to dispel a false argument made by those seeking to redefine marriage. They frequently argue that marriage laws are unconstitutional like old laws banning interracial marriage.  The Supreme Court struck down Virginia’s miscegenation law in the 1967 case of Loving v. Virginia. The marriage redefiners argue that because it is unconstitutional for a state to limit marriage based on race, as Loving v. Virginia ruled, it is also unconstitutional to limit marriage on the basis of sex.

    This argument fails for at least two reasons. First, there is a huge difference between race and sex. The only reason most every society publicly regulates marriage, and universally define marriage as one man and one woman,  is because placing men and women together in a society will inevitably produce children.  The racial backgrounds of a man and a woman have nothing to do with their ability and desire to procreate. 

    Second, they base their deficient legal argument on an inaccurate understanding of what the miscengenation law at issue in  Loving v. Virginia  actually outlawed.  This common misunderstanding popped up twice during the debate at UVA, and I had to correct it. Many people, including many law students,  incorrectly believe that the unconstitutional Virginia law banned everyone from having an interracial marriage, but it did not.  It banned only white people from having an interracial marriage.  Therefore, an African American man could marry a woman of Asian descent in Virginia.  Although this would be an interracial marriage, it would have been a legal marriage under the Virginia law, because the man and woman would not be white people.  The Supreme Court looked at this racially lopsided law that obviously promoted white supremecy, and rightly declared it unconstitutional.

       Therefore, Loving v. Virginia does not apply to Prop 8 because Prop 8 applies to everyone.  Anyone can enter into a marriage of one man and one woman.   Prop 8 does not apply in some lopsided fashion, as the Virginia law applied only to white people.  Also, not all states had laws banning interracial marriage.  Virginia did not have such a law for the first 100 years of its existence.  Racial restrictions on marriage to promote racial “purity” are not at all universal like the definition of marriage as one man and one woman.  Loving v. Virginia does not mean that Prop 8 is unconstitutional. 

    However, there is a relevant series of Supreme Court decisions that show that Prop 8 is clearly constitutional.  It is the cases from the late 1800′s involving Mormon polygamy. 

        Facing persecution in the Illinois and other states, Mormons moved westward in the 1840′s to the Salt Lake Valley, so they could freely practice polygamy, which Joseph Smith instituted as part of the Mormon faith. The Utah territorial legislature first petitioned Congress for statehood in 1848. Congress conditioned statehood on Utah agreeing to place in its state constitution a provision outlawing polygamy, and also stating that the anti-polygamy provision could not be amended without permission from Congress.  The Mormon-dominated territorial legislature refused to agree to that deal, prompting a half century battle with Congress over polygamy in the territories.  The Republican Party’s first platform of 1856 said that it opposed the spread of the “Twin Relics of Barbarism” in the the territories – slavery and polygamy.  The federal government in the 1850′s began a major effort with U.S. troops to end polygamy by arresting polygamists.  The polygamists in Utah finally gave up and Utah agreed to the anti-polygamy requirement.  Utah became a state after a half-century battle in 1896.

    During the battle with the federal government, the Mormon polygamists brought a number of cases to the U.S. Supreme Court, where they argued that the Constitution protects their right to marry the persons of their choice (sound familar?).  The Supreme Court rejected those claims that the Constitution protects the right of individuals to redefine marriage and practice legalized polygamy.

      In one of those cases, Murphy v. Ramsey, 114 U.S. 15, 45 (1885), the U.S. Supreme Court upheld the power of Congress to require a state to define marriage as one man and one woman as a condition of joining the Union:   

[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent  progress in social and political improvement. [Emphasis added].

   This salient passage from the Supreme Court is but one example of why Prop 8 is constitutional, and why the federal courts should have dismissed the Perry case long ago.  If Congress can require states to adopt a definition of marriage as one man and one woman in order to join the Union, certainly it is constitutional for California voters to define marriage that way for their own state.

      The Ninth Circuit will hear the appeal in the Perry case on Monday, December 6.  Stay tuned.