As the judge listened to the attorney explain the state’s interest in barring the couple from marrying, he had a question: Are you saying there is scientific evidence that shows some children will be harmed by such marriages?
The question posed to R.D. McIlwaine III, assistant attorney general of Virginia, came from Chief Justice of the United States Earl Warren on April 10, 1967.
The case, of course, was Loving v. Virginia, which ended bans on interracial marriage.
On Thursday, 47 years to the day after Warren posed his question, 10th Circuit Judge Jerome A. Holmes, who is black, brought the Loving case squarely into the same-sex marriage debate as he asked the attorney representing Utah, how is a line drawn on gender any different from one that divided races when it comes to the right to marry?
“You have a man who wants to marry another man, the only thing that bars him from getting married is sex, gender,” Holmes said. “So why is that any different than Loving when you are drawing a line that is based on a protected classification?”
Attorney Gene C. Schaerr has argued in court filings that a decision affirming U.S. District Court Judge Robert J. Shelby’s Dec. 20 ruling that the state’s ban is unconstitutional would be a “judicial wrecking ball” rather than “the Loving of our age.”
Schaerr told Holmes last week in Denver, that the difference was that the Loving decision didn’t “intrude into the state of Virginia’s definitional authority over marriage. The exclusion of mixed-race couples was a regulatory exclusion.” And it left intact man-woman marriage, he said.
“The whole presumption in Loving was talking about man-woman marriage,” he said, which is “fundamental to procreating and maintaining the human race.”
But from its inception, the Loving case was framed not around gender but race, and in language and principles that parallel those used today in the same-sex marriage debate: procreation, what’s best for children, what’s natural and traditional and what’s in keeping with God’s will.
Richard Perry Loving, who was white, and Mildred Jeter, who was black, traveled to Washington, D.C. , in 1958 to marry because doing so was illegal in their home state of Virginia. They were later arrested at their home, jailed and subsequently pleaded guilty to violating the state’s “Racial Integrity Act of 1924.”
An excerpt from the trial judge’s ruling is infamous for its plain expression of the public and state interest behind the act: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.”
The judge sentenced the Lovings, parents to three children, to a year in jail but suspended the sentence provided they moved out of state. The couple relocated to Washington, D.C., but returned to Virginia occasionally under cover as the nine-year legal battle to have their marriage recognized played out.
“If we do win, we’ll be helping a lot of people,” the soft-spoken Mildred Loving says in “The Loving Story,” a documentary about the case.
Virginia argued that its law was valid because it treated both whites and blacks equally under the law — much as Utah argues that its marriage prohibition applies equally to gays and lesbians.
Another key claim in the case revolved around the “scientific evidence” that then purported to show interracial marriage would lead to a “mongrel race” and harm offspring of both white and of mixed-race parents.
“The state has a natural and vital interest in maximizing the number of successful marriages that lead to stable homes and families and in minimizing those which do not,” McIlwaine told the Supreme Court, according to an audio excerpt of the hearing included in the documentary. “It is clear from the most recent available evidence on the psycho/sociological aspect of this question that intermarried families are subjected to much greater pressures and problems.”
Their children, he added, were frequently described as “victims” and “martyrs” of their parents’ marriages.
Bernard S. Cohen and Philip J. Hirschkop, the American Civil Liberties Union attorneys who represented the Lovings, emphasized how the laws deprived couples like the Lovings of dignity and affected the legitimacy of their children, property inheritance, survivorship rights, and other aspects of their lives.
Cohen told the court the state had failed to show how it or its people were harmed by the Lovings’ marriage, to which, he said, they had a fundamental right under the Fourteenth Amendment.
Two months later, when the court issued a unanimous decision in favor of the Lovings, there were 16 states that still barred interracial marriage.
Utah adopted its ban on interracial marriage in 1888; the real focus of the law adopted by the mostly non-Mormon territorial legislature, however, was to promote monogamy over polygamy, said Patrick Q. Mason, the Howard W. Hunter chair in Mormon Studies at Claremont Graduate University, who wrote about Utah’s interracial marriage law while an undergraduate student at Brigham Young University.
“The only disagreement was how many people could marry, but the foundational basis of [the discussion] was that marriage was sacred, ordained by God, the union of a man and a woman and lies at the very heart of the Christian religion and … Christian society and a Christian republic,” he said.
Utah ended its ban on interracial marriages four years before the Loving decision — but not without dissent.
In 1963, as Utah lawmakers prepared to consider repealing the state’s anti-miscegenation laws, a two-page pamphlet prepared by the “United White Citizens of Utah” appeared on their desks urging them to vote “no” on the bill.
Rep. J. McKinnon Smith, R-Salt Lake City, stood on the floor of the House during debate on the repeal bill and urged his colleagues to uphold the anti-miscegenation ban since “we really have no problem in Utah.”
Don’t “sell your birthright,” Smith said according to a Salt Lake Tribune report. “Your grandchildren are entitled to the blessings that you enjoy.”
Despite those pleas, the civil rights bill passed 52 to 6.
Fast-forward 41 years to 2004, when the Utah Legislature voted to place Amendment 3, the constitutional amendment barring same-sex marriage, on that fall’s general election ballot.
Rep. LaVar Christensen, R-Draper, who sponsored the bill, said during floor debate that what was at stake was an “internal struggle between right and wrong” and urged his colleagues to not lower “standards or transforming fundamental principles upon which our society is based.”
He said those principles stemmed from “self-evident truths” based on the “God of nature, nature’s laws,” the Bible and “the morality of a people as reflected in its laws.”
In Mason’s view, the conversation surrounding today’s same-sex marriage debate makes many assumptions raised in the past about interracial marriage, but he argues you can’t “just lift race discourse and scratch out ‘black’ and put in ‘gay’ ” given the difference in discrimination and sanctions applied to the two groups.
Disagreement over how and whether Loving works as a framework for same-sex marriage plays out in dueling friend-of-the-court briefs filed in the Utah case at the 10th Circuit Court.
A coalition of African-American groups supporting the state’s position says the two movements are nothing alike.
The coalition includes the Center for Urban Renewal and Education, The Coalition of African American Pastors USA and The Frederick Douglass Foundation Inc.
The Lovings’ marriage conformed to the nature and meaning of traditional marriage, they said, while “racial eugenicists” in Virginia used the “extraneous factor of race” to “commandeer marriage in order to promote the social reform ideology and policy goals of White Supremacy.”
The brief, which draws from articles by Brigham Young University law professor Lynn Wardle, said the marital status of the Lovings was never at issue as they fought the charges brought against them. And the Loving decision “left intact the gender-inclusive definition of marriage,” aimed at fostering “responsible sexuality, procreation and child rearing.”
“In no small part, the Lovings challenged the Virginia anti-miscegenation law for the sake of their [three] children,” the coalition said. In “stark contract” to Loving, “it is not at all yet clear whether the social impact of legalizing same-sex marriage will or will not diminish the well-being of children generally,” the coalition argues.
On the other side: The Howard University School of Law Civil Rights Clinic, which filed an amicus brief backing the three same-sex couples challenging Utah’s ban. The clinic said gay marriage opponents have “carbon copied” the same “flawed arguments that once were used to justify racial slavery and apartheid.”
Then, as now, claims were made that expanding marital rights would upset the social order and lead to social chaos, the clinic said. Interracial relationships were described as unnatural and “contrary to God’s will.” Such relationships were bluntly sexualized through use of coded language about sexual taboos — which the clinic said is repeated today in references to “adult-centric” lifestyles.
“Without acknowledging the racial provenance of these discredited arguments, opponents of marriage equality have attacked same-sex couples as a threat to American society, American families, heterosexual marriage, and children,” it said. “None of these statements is remotely true.”
A religious basis
An amicus brief submitted by religious groups, including The Church of Jesus Christ of Latter-day Saints, that support Utah’s ban on same-sex marriage, echoes comments made in the past about anti-miscegenation laws: “Marriage between a man and a woman is sanctioned by God as the right and best setting for bearing and raising children” and “traditional marriage is indispensable to social welfare and our republican form of government.”
The LDS Church reaffirmed its opposition to gay marriage at its General Conference about a week ago. Apostle Neil L. Andersen said changes in civil law cannot change the “moral law” of God.
“While many governments and well-meaning individuals have redefined marriage,” he said, “the Lord has not.”