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.
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.”
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.Next Page >
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