Critics of my argument that the U.S. Supreme Court should leave the question of same-sex marriage to the states bring up the issue of race. One viewer writes:
Should each state be able to decide if blacks can marry whites? The arguments for this were very similar. This is a civil rights issue, not red states versus blue states. DOMA is a crime! Let’s get things right once and for all!
As late as the mid-1960s, 16 states did forbid whites from marrying blacks. Those laws were thrown out by the U.S. Supreme Court in Loving v. Virginia, in 1967, by application of the 14th Amendment’s demand of “equal protection of the laws.”
So why not do this with the ban in more than 30 states on marriages between men and men, and women and women?
Two reasons. First, race is not the same as gender—not biologically, in regard to procreation, and not historically either. Historically African Americans have a special claim to federal power because of slavery and the Civil War, Reconstruction, Jim Crow, and four amendments to the Constitution. We’ve had racial affirmative action. We haven’t had gay affirmative action.
Secondly, the state anti-miscegenation laws were limitations on a general right available in other places. The white man and “colored” woman in the Loving case could be married in Maryland but not in Virginia. (They also could not cohabit in Virginia without being subject to arrest and imprisonment.) In most states, and in most places around the world, marriage was defined without regard to race. Virginia put a racial limitation on a general right.
In contrast, marriage had been defined in all the states, and everywhere in the world as far as I know, as relation between a man and a woman. That’s what marriage was. I look at the dictionary on my desk, Webster’s New World Dictionary, copyright 1982, which I bought in 1985. It says:
“MARRIAGE. 1. The state of being married; relation between husband and wife…”
“Husband” and “wife” are gendered terms.
Same-sex marriage redefines it. It allows husband-husband marriages and wife-wife marriages. I’m O.K. with that. I voted for it. But when some states adopt it and some don’t, it doesn’t mean that the states not adopting it are in the same doghouse Virginia was in 1967. They have not restricted marriage from what it was. They have declined to enlarge it. I agree that Idaho, for example, ought to enlarge it. But I’m not a citizen of that state, and I leave the matter to them.
I received another email:
One of those odd years, Washington votes again and makes gay marriage illegal. Should we put gay people’s life on yo-yo, constantly fear for their marriage? It’s cruel.
I replied to her:
I agree that making people fear for their marriages would be cruel. I don’t think they need to fear this.
The case in front of the U.S. Supreme Court, from California, is one in which the voters reversed the state supreme court—that is, the court was out in front of the people, and the people pulled them back. But repeal did not erase the marriages that had already happened. Nobody’s marriage was dissolved. And California does have same-sex civil unions.
In Washington, the state supreme court refused to proclaim same-sex marriage a right, the Legislature did it, and the people (twice) said yes. That is more powerful than a ruling by five justices, and I think there is no reversing it. I don’t hear of any campaign by social conservatives to have another vote. They’ve lost and they know it.
I think the biggest complaint of gay couples to my point of view is that if they’re in other states, they’ll have to wait. I understand that. But when you let states like Washington be early, saying that marriage was a right of the states, you should stick to it. That means letting Idaho be late.
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