Stupid Question ™
July 3, 2003
By John Ruch
Q: With the recent U.S. and Canadian pro-gay legal decisions, I’ve heard comparisons to when the U.S. legalized interracial marriage. When did that happen and was the fight similar?
A: Only 36 years. That’s how long straight Americans have had the complete right, not infringed anywhere, to marry a partner of a different ethnicity.
The fortuitously named 1967 Loving v. Virginia decision (well described in the fascinating Supreme Court transcript book “May It Please the Court…”) started with the 1958 marriage of Richard Loving, a white man, to Mildred Jeter, a mixed black and Native American woman.
At the time, 16 states were still enforcing anti-miscegenation (“race-mixing”) laws, and nine out of 10 Americans supported them.
Virginia was one of those states. It had banned interracial marriage (specifically, whites marrying any “lower” race) since the 1600s, and by the 1920s required a racial purity certificate for a marriage license.
The Lovings ducked the problem by getting married out of state. But in 1959, the sheriff back home swooped in with a felony charge of race-mixing.
The Lovings pleaded guilty, and the judge ordered them to leave the state for 25 years—an out of sight, out of mind mentality that is certainly similar to today’s homophobia.
After nine years of secretly living in Virginia, the Lovings went to court with the American Civil Liberties Union and won a unanimous Supreme Court decision.
Loving was based on equal protection and due process, not on the privacy arguments behind the recent sodomy law wipe-out (Lawrence v. Texas), so the analogy is not direct. And Canada’s recent moves to legalize gay marriage are based largely on international human rights treaties that the U.S. holds in utter contempt.
However, Loving will undoubtedly be key in forthcoming state supreme court rulings. Justice Antonin Scalia, in his Lawrence dissent, feared as much: He praised Loving, but said it shouldn’t be applied to anti-gay(-sex) laws that he claims have a “rational basis” in morality.
Scalia also wrote that the Lawrence ruling threatens civil order by acknowledging the “homosexual agenda.” Fitting, because most of the anti-miscegenation rationales implied a sort of “Negro agenda” and sounded much like modern homophobia.
Virginia argued against the Lovings with the same obtuse brand of Judeo-Christianity—God created separate races in separate places, and they shouldn’t mix. (To paraphrase a homophobic jingle, it was Master and Slave, not Adam and Eve.)
It similarly argued that interracial marriages were doomed to failure and engaged in only by psychological deviants. Children produced by the union would be scarred for life. And most Americans hated it.
Like gay marriage and the right to sexual privacy, interracial marriage was feared as a floodgate that, if opened, would drown us in incest, polygamy, underage marriage, prostitution and even drug legalization. Today, all remain illegal, and a member of the Supreme Court itself (Clarence Thomas) lives, apparently happily and productively, in an interracial marriage.
However, Loving is a two-edged sword. It declared marriage a basic civil right in part because it is “fundamental to our very existence and survival”—implying that its value lies in procreation.
Speaking after his court victory, Richard Loving reached a simpler conclusion: “Now I can put my arm around my wife in Virginia.”