We are in the midst of an attempt to ground a category of discrimination in the fundamental social bedrock of marriage law. I would argue that it is virtually impossible to understand the current debate over same-sex marriage without first understanding the history of American miscegenation laws and the long legal fight against them, if only because both supporters and opponents of same-sex marriage come to this debate, knowing or unknowingly, wielding rhetorical tools forged during the history of miscegenation law. The arguments white supremacists used to justify for miscegenation laws--that interracial marriages were contrary to God's will or somehow unnatural--are echoed today by the most conservative opponents of same-sex marriage. And supporters of same-sex marriage base their cases on the equal protection clause of the Fourteenth Amendment, echoing the position the U.S. Supreme Court took when it declared miscegenation laws unconstitutional in the case of Loving v. Virginia. Both sides confront the structures of marriage law exclusion that were also forged during the history of miscegenation, including, as I show below, the legal maneuvering over the seemingly minor bureaucratic practice of issuing marriage licenses.

A Brief History of Miscegenation Laws

Today, when one out of every fifteen American marriages is interracial, many people are surprised to learn that laws prohibiting interracial marriage (otherwise known as miscegenation laws) were so deeply embedded in U.S. history that they would have to be considered America's longest-lasting form of legal race discrimination--they lasted far longer than either slavery or school segregation. All told, miscegenation laws were in effect for nearly three centuries, from 1664 until 1967, when the U.S. Supreme Court finally declared them unconstitutional in the Loving decision.

The first law against interracial marriage was passed in the colony of Maryland in 1664. It set a precedent that spread to the North as well as the South: Massachusetts, for example, adopted a miscegenation law in 1705. After British colonies turned into American states, they continued, one by one, to pass miscegenation laws, until, by the time of the Civil War, they covered most of the south, much of the mid-West, and were beginning to appear in western states, too. Before the Civil War, there was only one significant challenge to this pattern of steady expansion. In Massachusetts, in the 1830s, a remarkable group of radical abolitionists went out on a limb to argue that the Massachusetts miscegenation law contradicted the fundamental American principle of civil equality. For more than a decade, abolitionists urged the Massachusetts state legislature to repeal the law; finally, in 1843, they succeeded.

Outside Massachusetts, however, laws against interracial marriage held firm right through the Civil War--and beyond. One of the first things defeated white Southerners did at the end of the Civil War was to pass new, and stronger, miscegenation laws as part of their infamous black codes. Determined to overcome Southern resistance, the federal government built its Reconstruction program around the promise of equality, then embedded this promise in the language of the Fourteenth Amendment to the U.S. Constitution, which guarantees all citizens "equal protection" of the law. During Reconstruction, the collision between the power of the federal government and the resistance of white Southerners was sharp enough to dislodge miscegenation laws in several Southern states. In fact, during Reconstruction eight of the eleven formerly Confederate states abandoned their laws against interracial marriage.

But it soon became apparent that Reconstruction would not survive long enough to become a turning point in the history of miscegenation law. As Reconstruction collapsed in the late 1870s, legislators, policymakers, and, above all, judges began to marshal the arguments they needed to justify the reinstatement--and subsequent expansion--of miscegenation law.

Here are four of the arguments they used:

1) First, judges claimed that marriage belonged under the control of the states rather than the federal government.

2) Second, they began to define and label all interracial relationships (even longstanding, deeply committed ones) as illicit sex rather than marriage.

3) Third, they insisted that interracial marriage was contrary to God's will, and

4) Fourth, they declared, over and over again, that interracial marriage was somehow "unnatural."

On this fourth point--the supposed "unnaturality" of interracial marriage--judges formed a virtual chorus. Here, for example, is the declaration that the Supreme Court of Virginia used to invalidate a marriage between a black man and a white woman in 1878:

The purity of public morals," the court declared, "the moral and physical development of both races….require that they should be kept distinct and separate… that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.

The fifth, and final, argument judges would use to justify miscegenation law was undoubtedly the most important; it used these claims that interracial marriage was unnatural and immoral to find a way around the Fourteenth Amendment's guarantee of "equal protection under the laws." How did judges do this? They insisted that because miscegenation laws punished both the black and white partners to an interracial marriage, they affected blacks and whites "equally." This argument, which is usually called the equal application claim, was hammered out in state supreme courts in the late 1870s, endorsed by the United States Supreme Court in 1882, and would be repeated by judges for the next 85 years.

During the late 19th century, this judicial consensus laid the basis for an ominous expansion in the number, range, and severity of miscegenation laws. In Southern states, lawmakers enacted new and tougher laws forbidding interracial marriages. Seven states put miscegenation provisions in their state constitutions as well as in their regular law codes, and most raised criminal penalties to felony level. In Florida, for example, the penalty for interracial marriage was a maximum of 10 years in prison; in Alabama, 2-7 years. Meanwhile, western states set off in a new direction by expanding the racial coverage of the laws. A dozen states passed laws prohibiting whites from marrying American Indians; a dozen more targeted Asian Americans; nine targeted Filipinos. Some states went even further. Arizona, for example, prohibited whites from marrying "Hindus" and my own state of Oregon prohibited whites from marrying Native Hawaiians, or Kanakas. Courts responded by expanding the racial coverage of the equal application claim, too. Thus the Oregon Supreme Court declared that Oregon's miscegenation law did not discriminate (in this case, against Indians) because, as the judge explained, it ""applied alike to all persons, either white, negroes, Chinese, Kanaka, or Indians."

Between 1880 and 1950, the regime of miscegenation law was at the height of its power. The laws were in effect in thirty states--every Southern state, the vast majority of western states, and several states on the border, like Indiana. Those states that didn't have miscegenation laws on their books, mostly in the Northeast, boasted that they didn't need to, because opposition to interracial marriage was by then so deeply rooted that new laws were simply unnecessary.

The power of these laws was reflected in the variety of ways that the laws were enforced, civil as well as criminal. Criminal prosecutions were by no means uncommon. To give only one example, as political scientist Julie Novkov has recently shown, the state of Alabama prosecuted 343 people for the so-called crime of "miscegenation" between 1883 and 1938. In other states, prosecutions for interracial marriage operated in tandem with arrests for illicit sex (that is, because interracial couples were forbidden to marry, they were subject to prosecution under fornication and adultery laws). Throughout the South, the legal practice of enforcing miscegenation laws was shadowed by the vicious, extra-legal, practice of lynching.

The Role of Marriage License Clerks

It's worth emphasizing that miscegenation laws were also enforced--probably even more effectively--through civil law. Many an interracial couple managed to avoid attracting the attention of local police only to find their marriages challenged in other court proceedings--in divorce and annulment cases, for example, in pension disputes, and especially, and repeatedly, in inheritance cases. And the civil provisions of miscegenation laws were significant in another respect, too. In the early twentieth century, when marriage licensing served as a kind of public health surveillance system, marriage license clerks were, in effect, assigned responsibility for serving as the gatekeepers of white supremacy, and they wielded this power with considerable effect. Long after most public officials had discarded the blatantly racist justifications originally used to enact miscegenation laws, county clerks continued to refuse marriage licenses to interracial couples, claiming that they were merely carrying out the requirements of laws they were obliged to obey whether they wanted to or not.

Putting an end to the regime of miscegenation law was a long and difficult process. Between 1913 and 1927, the NAACP took the first step by fighting off a rash of attempts to enact miscegenation laws in northeastern states. In the 1930s, a few especially bold couples took the next step by bringing marriage license officials to court in an attempt to challenge the racial classifications of miscegenation laws. These challenges failed, but the fact that the suits were brought at all showed the gradual erosion of the notion that interracial sex and marriage were "unnatural." During World War II, when the social dislocations common in wartime led to interracial marriages at home and abroad, the NAACP, sometimes with the help of the Red Cross, tried an indirect approach, helping individual couples evade the miscegenation laws of their home states by directing them to marriage license officials in Northern states.

The Beginning of the End

The first significant courtroom victories didn't appear, though, until civil rights groups began to support, strategize, and finance direct challenges to the constitutionality of miscegenation laws. The first group to do this was the Catholic Interracial Council of Los Angeles, a small but remarkably effective pressure group founded in 1946, which argued that miscegenation laws were a violation of the constitutional guarantee of religious freedom. In the 1950s, the ACLU began to bring test cases, and the Japanese American Citizens League argued for the repeal of miscegenation laws in several western states. Both groups marshaled all the arguments they could find. They insisted that scientists no longer believed that the differences between the races were either "natural" or significant. They maintained that interracial sex and marriage were perfectly natural, perhaps even especially tempting. They argued that the only thing miscegenation laws really accomplished was to label otherwise long-term, committed relationships as illicit sex rather than marriage. Finally, building on the arguments the NAACP's Legal Defense Fund was making in its famous campaign against school segregation, they argued that the equal application rationale defied common sense. Surely, they insisted, miscegenation laws were a blatant violation of the Fourteenth Amendment's guarantee of equal protection.

In 1948, the Supreme Court of California took a giant step toward ending the regime of miscegenation law when it broke an sixty-five year string of post-Reconstruction judicial precedents and declared California's miscegenation law unconstitutional. Speaking for a deeply divided court, Justice Roger Traynor flatly rejected the shopworn claim that miscegenation laws applied "equally" to all races. "A member of any of these races," Traynor explained, "may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable." "Human beings," he continued, "are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains." "The right to marry," Traynor insisted, "is the right of individuals, not of racial groups." Nineteen years later, in 1967, in the case of Loving v. Virginia, the United States Supreme Court agreed, this time in a unanimous decision written by Chief Justice Earl Warren. "There can be no doubt," Warren wrote, "that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

The Loving decision spelled the formal end of America's three-century-long history of miscegenation laws, though opponents of interracial marriage didn't give up overnight. Alabama, for example, waited until the year 2000 to remove the miscegenation provision from its state constitution. By and large, however, Americans adjusted remarkably quickly to the new judicial consensus that interracial marriage, like marriage itself, was, as Earl Warren had insisted in Loving, "a basic civil right." In the 1980s, when I first started studying the history of miscegenation law, it often seemed as if no one wanted to remember a part of American history that now appeared to be little more than an embarrassment.

Gay Marriage

Historians tend to be uncomfortable making direct comparisons between the present and the past, and I'm no exception to that rule. It is important to remember that there are real differences in the case of gay marriage and so- called mixed marriages. The situation of a lesbian or gay couple in 2004 is not the same as that of an interracial couple in the 1930s, when miscegenation laws carried criminal penalties, when whites were nearly unanimous in their condemnation of interracial marriage, and when the specter of lynching hovered over discussions of interracial sex. The federal government is a much bigger player in the fight over same-sex marriage than it ever was in the case of miscegenation law; in the case of interracial marriage, there was no federal equivalent to the Defense of Marriage Act.

Supporters of same-sex marriage face formidable obstacles, but in large part because of the successes of twentieth century opponents of miscegenation law, they have also found support that interracial couples in the 1930s would have envied--from legal experts on the constitution, from county clerks in Oregon who recently decided that rather than discriminate on the basis of sex, they would refuse to issue any marriage licenses at all (to opposite-sex or same-sex couples), and even from the justices of the Supreme Judicial Court of Massachusetts, who cited the Loving case repeatedly in their Goodridge decision. If the campaign for same-sex marriage succeeds (and I hope, very much, that it does), it will be not only because of the efforts of lesbian and gay activists but because of the civil rights advocates (black, white, Asian American and American Indian) who spent so much of the twentieth century working to put an end to American's three-century tradition of miscegenation laws.

Jacquelyn Weinbrenner - 5/31/2010

Great article! I posted a link to it on my facebook Page; Inter-racial Couples for Same-Sex Marriage. I am a part of an inter-racial couples and I believe we need to declare bans on same-sex marriage unconstitutional as we did with Loving.Please visit and "like" my page if you agree to show support http://www.facebook.com/album.php?aid=6195&;id=114099548632459&saved#!/pages/Inter-racial-Couples-for-Same-sex-Marriage/114099548632459

Jim Summers - 4/13/2009

I think this is a very interesting writeup. However, I would find it very useful to have more footnotes, especially to court decisions where these laws were upheld. It would be similarly useful to have references to religious and political leaders and their statements on interracial marriage so that the parallels to the gay marriage debate can be more easily drawn (and debated fairly).

Stating as fact that religious opposition to interracial marriage mirrors their opposition to gay marriage today is a very strong claim, I am not sure have made your case with the meager documentation you have provided. That is not to say that such documentation doesn't exist, simply that I don't see it here.

psycho tol - 8/5/2008

A ban on gay marriage looks a lot like one of those junk laws that don't make sense unless you're some fundamentalist screwball, a knight of the Ku Klux Klan, or just plain off your head on angel dust.

Yeah, probably a bit blunt, but really, bans on female actors, bans on witchcraft, bans on blasphemy, bans on interracial marriage, bans on un-american activities (?????????).

The main arguements for a ban on gay marriage I've seen are "Because God said so," (disputed and shouldn't the First Amendment thing about 'no law picking sides in the great question of what God said' make that one ineffective?), it'll be bad for any kids they adopt or have (what makes you so sure all married couples want kids? You want a ban on childless marriages too? Maybe something saying "have at least N children in C years or your marriage will be dissolved"? And kids are sawn off faeces by nature (something schools need to be better at dealing with anyway if you want a better society), you don't need to have gay parents to draw attention, so protection from ridicule don't work either,) or it'll make marriage somehow less special (What, like having the earth orbit the sun makes us earthlings less special? Also, brace yourself, but: We're not even at galactic centre, we're way out on this arm of stars off to the edge of the Milky Way,) or it'll aid tax cheats who want to file jointly (Bit of a stretch, you file jointly, and your personal possessions are legally co-owned by your partner, not to say people won't enter these things failing to consider that, but if that's going to remain a problem with straight marriage ... I don't know, how does banning gay marriage help exactly?)

Try and prove this ain't a junk law, because right now, that's all this ban looks like: Even more useless junk.

Richard Kramer - 5/28/2005

As a mathematician, and not a historian by any means, I can only give a lay person's view of this.

But aren't those opposed to same sex marriage depending on some of the very same laws passed to prevent interracial marriages?

I'm thinking here of that old 1913 law (unenforced for decades until reciently) in Massachusettes that is aparently preventing same sex marriages from becoming widespread nation wide, delaying widespread challenges to DOMA, by preventing out of state gay couples from marrying there.

Aparently, this law was one of several so-called "Jack Johnson Laws" passed in response to the 1912 arrest and 1913 conviction of former Heavyweight boxing champion Jack Johnson for violation of tha Mann Act, for crossing state lines with a white woman, who I believe he later married.

It seems that the opponents of same sex marriage are content to not only use the same rhetoric that is used by opponents of interracial marriage, but even the very same laws.

http://www.baywindows.com/media/paper328/news/2004/06/24/LocalNews/Back-To.Court-689386.shtml

> Attorneys for plaintiffs in both suits said that
> the 1913 law was originally passed in large part
> to prevent out-of-state interracial couples from
> marrying in Massachusetts, making its renewed
> enforcement by Romney and Reilly particularly odious.
> Reilly has said publicly that there is no evidence
> that the drafters of the law had racist intentions.
> Harvard Law Professor Randall Kennedy, who wrote a
> book on laws around interracial marriage, refuted
> Reilly's argument at the June 17 press conference.
>
> "The evidence is pretty compelling that this law
> was part of a nation-wide revulsion against
> interracial intimacy and particularly marriage,"
> said Kennedy. He said the law was one of many
> passed in the wake of scandals surrounding
> Jack Johnson, the first African American boxing
> heavyweight champion of the world, who angered
> many white people by marrying white women.
> Kennedy said the 1913 law and similar laws
> passed in other states were nicknamed
> "Jack Johnson laws."

Steven Horwitz - 11/8/2004

One further thought here, re: the 14th Amendment. I think it was a mistake to use that line of legal reasoning to get to the decision in Loving (and Roe for that matter). Although the substance of the argument of the anti-miscegenation crowd was wrong, the logic of "equal protection" being satisfied wasn't totally warped. The problem with the language of "equal protection" is that it does open itself to that view, and the anti-gay marriage folks have used it again.

Why not get to the heart of the matter, which is this:

The right to marry," Traynor insisted, "is the right of individuals, not of racial groups."

An alternative strategy would be to look to the 9th Amendment's protection of "unenumerated rights", which is also the implicit logic underlying Lawrence , and then combine that with the equal protection clause? The right to marry is an individual right, even though it is not explicitly enumerated (the 9th) and the 14th prohibits states from excluding any group of people from that right. The first case to mention the "right to marry" ( Meyer v. Nebraska ) lists it along with a bunch of other rights not explicitly in the constitution. Backing this with the text of the 9th amendment could get advocates of legalized same-sex marriage where they want to go.

Frankly, if you're going to use the 14th amendment, it's the "privileges and immunities" clause that makes more sense because that phrase, as Randy Barnett argues in *Restoring the Lost Constitution* had the same meaning as the "unenumerated rights" of the 9th amendment.

All of this stretching and tugging for penumbras in these cases and Roe could be avoided by a much more straightforward recognition that the founders knew there were rights people had that were not listed in the Constitution, and that the "presumption of liberty" was such that the state had to meet a high burden of proof to show why such rights would be trumped.

Peter C Frank - 11/6/2004

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Please show me where, in the Fourteeenth Amendment to the United States Constitution, it states that the discussion regarding equal protection under the laws is limited to the right to vote. Cutting out the middle of the sentence, the Equal Protection clause of the Fourteenth Amendment is, essentially, "No state shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws." Period.

Perhaps you are thinking of the Fifteenth Amendment to the United States Constitution, which covers the voting rights of individuals with respect to race/color?

While you are correct that Congress was granted the power to enforce the provisions of the Fourteenth Amendment (by appropriate legislation), that provision was included because, if you will refer back to United States Constitution, enforcement of the law is a power reserved to the executive branch of government (i.e., the President). The fact remains that the United States Supreme Court is well within its rights to interpret the provisions of the Fourteenth Amendment and was correct in its upholding as unconstitutional the anti-miscegenation laws in its Loving v. Virginia decision.

Two things I would correct with respect to Dr. Pascoe's work, which I commend as a succinct review of the anti-miscegenation laws that prevailed in our history: First, these laws are more correctly referred to as "anti-miscegenation" as they proscribed miscegenation. The definition of miscegenation is "Cohabitation, sexual relations, or marriage involving persons of different races." (The American Heritage® Dictionary of the English Language, Fourth Edition.)

Second, until last year's Supreme Court decision in Lawrence v. Texas (2003), there were, in fact, severe criminal penalties (up to 20 years) for engaging in sexual relations (one definition of miscegenation) among gay partners. The Supreme Court overturned Texas' anti-sodomy laws, proscribing consentual conduct with a punishment of a prison sentence of up to 20 years (for which the petitioners were convicted, for consentual conduct in the privacy of their bedroom). Many states had already decriminalized consentual sodomy by the time the Supreme Court reached its decision striking down as unconstitutional laws against consentual sodomy in 2003, just as many states had already decriminalized miscegenation by the time the Supreme Court reached its decision striking down as unconstitutional laws proscribing miscegenation in 1967.

There are, in fact, many, many more parallels that can be drawn between the anti-miscegenation laws and anti-same-sex marriage movement, which, perhaps, could be further explored in a more detailed paper examining the relationship therein.

Bruce Baker - 8/23/2004

I think it is the 15th that specifically mentions voting rights. The 14th say, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As well as a bunch of other stuff.
the supreme court will have to decide if sexual preference is a protected "class" under the equal protection clause

Jesse David Lamovsky - 4/25/2004

Don't know how interesting Hay himself was... but he did keep interesting company.

chris l pettit - 4/24/2004

I just was actually trying to be funny, but totally messed that up...I know Hay has nothing to do with the current discussion (or maybe he does in a strange way), but I always thought he was an interesting fellow.

CP

chris l pettit - 4/24/2004

chris l pettit - 4/24/2004

This is an area of contention for many in constitutional debate today. In the area of human rights, economic, social and cultural rights have been universally recognized outside the US to be inalienable, and nations have the responsibility to protect them. THere are those in the US that may protest such things, but the fact is that there are no truly "negative" rights, as you have spoke of them. The right to vote? Well, the government is required to set up polling stations, educate the public on their voting rights, provide public financing for candidates, etc. Right to free speech, fair trial, privacy...all these rights have positive aspects. I would challenge anyone to name a right that does not involve the government taking some sort of substantial positive steps. The truth is that there is little or no separation between positive and negative rights, so i would submit that the argument is a non-sequiter.

Would Jefferson have favored a judiciary that was allowed to overturn state decisions? Well, to be honest, i don't know. There are indications that he would give the weight of the federalism argument to the Union, which would mean allowing the Court to overturn fallacious state statutes, such as the marriage statutes. Then there is his famous argument with Marshall over the issue of judicial review. While, at the time, he favored a strong executive (some would claim he liked the idea of a monarchy of sorts), his later letters to France indicate that his view on the issue had softened a bit and that, while not totally in favor of judicial review, had seen the positives that it could contribute to the national stage. One must remember that the dispute in Marbury v. Madison was a highly politicised one and the reasons why Jefferson and Marshall clashed were due to the fact that Marshall, while ruling for Jefferson in the case, handcuffed him from enforcing the ruling, essentially placating Adams. In my view, this is one of if not the most brilliant case in the history of the Supreme Court and sets the stage for exactly what we currently debate, the ability of the courts to interpret the Constitution and determine the validity of legislative acts.

I think history has shown strict constructionalism to be a father naive way of looking at the document. We could still be looking at slavery of sorts in Jim Crow laws and separate but equal statutes today, as well as many other sorts of discrimination and prejudice. The Constitution is written in a vague and broad manner as to encourage interpretation and flexibility. I don't understand how one can state that the document should be malleable, but not fluid and changing with the times...how is this possible? If it is malleable and able to be used for different purposes, it would therefore be able to be used to deal with the changing social advancements.

In reference to the other courts that you don't worry about Jesse, I would submit that you should. Can you think of much that takes place in the world that does not have some effect internationally? Indeed, the Commerce Clause of the Constitution recognizes and has been interpreted to demonstrate how, when it comes to economic transactions (of which marriage licenses are one) things that happen in certain states carry weight in other states and effect their commerce. The Constitution gives the federal government the ability to control this. Its relevance to the international courts? Just that we need to pay attention to other nations and their judiciaries because the US does not exist in a bubble. if you want to take an isolationist stance, that is acceptable, but very naive. The influence of world opinion and foreign judiciaries is not only limited to economic developments, but extends to all arenas of law. If one chooses to ignore international law and foreign judiciaries, one ceases to be able to make a case for US interventionism, the "war on terror" as anything but a law enforcement action to enforce US criminal statutes, etc. It is in these areas that taking an "I don't care and can choose to listen when I want to" approach becomes hypocritical, contradictory and therefore irreputable.

The Constitution was written to protect white male slaveowners that did not want to completely give up their power...and the Federalist papers come out and say it (give me a day or two to find the quote). In addition, the writings of Madison and Hamilton are those supporting the privileged elite while making sure the masses dont get too out of control. hence the reason why the whole debate took place as to whether the Constitution should be easily changed. Madison and Hamilton come out and claim that it should support the status quo and not allow society to change it easily. Thus, even though they might not have liked it, it had to be left to the judiciary to be able to interpret the Constitution in order to make sure it was current with the times. Ironically, if Jefferson had won the argument with his opinion that there should be a convention ever 30 odd years to examine the consitution and change what needed to be changed, the argument that the courts have not right to make such determinations on issues like gay marriage might have a bit more merit (something that really stirs up Federalists if you get to debate one in person). Can you find me someone in the Senate that does not belong to the top 10% of society? Name one...in the House? Name a federal judiciary member that is not? And you still want to claim that government is not serving the interests of the top 10% of society? I don't understand why it is so hard to realise that if the only people who can afford to run for office are those with a bunch of money (the top 10%) then we are guaranteed a choice between the top ten versus the top ten every election. So the interests of the top ten are those represented. it seems like simple logic to me.

The homosexual argument is also a red herring. I encourage you to read Matthew Ridley's text "nature via Nurture". you will find that the environment versus biology debate does not even matter. In addition, you would not call religion biological, yet religious persecution falls under the realm of civil rights. Again...the denial that homosexual rights do not qualify as civil rights is illusory thinking. it gets to the point of acceptence and equality, the essence of the 14th amendment. Do you want to "convert" all the gays? How silly of an idea is that? They are entitiled to the same equal rights as the rest of us under the Constitution. The Massachusetts Court in the Goodrich case determined that, and if the Supreme Court wasn't as partisan as it is, it would determine that. Oh...that was also my point about the European and South African courts...they are appointed in an objective manner...unlike our ouwn worthless judiciary (and I say this as a lawyer and law scholar).

One last thing...thanks for the polite response Jesse. i would encourage you to take a look at the South African Constitution and judiciary. They are much more progressive and objective than our own. many of the problems you describe are true in South Africa, however the nation is only ten years removed from one of the worst situations the world has seen and has much to rebuild and redistribute. i should note the "doctrine" of "free market" economics has not helped the situation, instead creating a black elite to join the white elite that got to keep all the money they made off apartheid, leaving the rest of the country in the same desperate situation. however, the South African judiciary has recognised the importance of ESC rights, something our own judiciary should do and work into our own constitutional framework. I can claim some degree on knowledge on the issue due to the fact I have lived studied and worked in SOuth Africa.

CP

Jesse David Lamovsky - 4/23/2004

"Madison, Hamilton, Hay et al"...

My mistake. I meant, of course, John Jay. Perhaps I had John Hay, Lincoln's secretary, on the brain.

Jesse David Lamovsky - 4/23/2004

Certainly, the Founding Fathers believed in the Constitution as a malleable document- some of them, at least. In the case of Madison, Hamilton, Hay et al, this can’t be denied. But the opinions of the original Federalists on issues like tariffs, mercantilism, internal improvements, can’t be treated as legally binding. Only what is actually in the Constitution can be considered as such. In addition, the interests of the Federalists in centralizing power in the Federal government mainly centered on economic issues- not social or moral issues. Moreover, it isn’t as if Federalists were the only people who showed up in Philadelphia in the summer of 1787. Many of the states (and their representatives) were reluctant to sign onto the Constitution in the first place, believing it gave too much power to the Federal government. And as late as 1861 it was accepted as a given in many areas that the states had a perfect right to abrogate their ties with the federal government and secede from the Union! Would men like Jefferson and Mason have agreed to a “flexible” Constitution that allowed judges to overturn state laws willy-nilly, particularly in cases of personal relationships? That allowed the Federal government to reach into every area of social life? I doubt it very much. The Constitution was never meant to be a document that granted positive rights to individuals (the “right” to healthcare, the “right” to a living wage, the “right” to marry, etc.). It simply enumerates what the Federal government can, and more to the point, what it cannot do.

Frankly, I think this whole business about a “living Constitution” is, to a degree, a smokescreen, designed to shroud this document (which is, after all, written in plain English, and can be easily understood by any literate adult) in an ambiguity it doesn’t really possess. Either way, I can only read what is written in the document, and go on that. The 14th Amendment specifically mentions only voting rights- the rights of freedmen to participate in the republican process. It doesn’t mention social relationships, or even legal contracts. And no offense, Mr. Pettit, but I care not a whit for what the European Court or the South African Constitutional Court thinks of our judiciary. Certainly there is nothing in the Constitution that allows Supreme Court justices to use the decisions of foreign courts as precedents (despite what Ms. Ginsburg has said on this issue), and their opinions are irrelevant here. Besides, considering the state of South Africa these days, maybe they ought to concentrate on tidying their own house, and not worrying about whether or not we’re still in the “Stone Age” on issues of equal rights. And the Constitution, as written, protects the natural rights of ALL individuals, not just the “top 10% of society”. That sounds like the old “Constitution as a document designed to protect only rich white slaveowners” argument. That’s a dog that won’t hunt with me.

The civil rights argument, as applies to homosexuals, is a problematic one as well. The main difference between African-Americans and gays is biological- blacks cannot choose what they are, while in the case of homosexuality, this might be a biological condition, and it might not be- we just don’t know yet. I know one thing- no black man can call himself “white” until he’s 44, and at that point “come out”, and become “black”, (as was the case with Bishop Gene Robinson), and instantly become part of a favored minority group. Come with proof that homosexuality is biological and beyond the control of human beings, and we’ll talk about civil rights, Mr. Pettit. But we don’t know that yet. And I’m not in favor of overturning religious and cultural traditions that have served us very well in this country, traditions that I respect very much, based on what might simply be a lifestyle choice on the part of a tiny minority. In short, I’m skeptical about how well the civil rights argument applies here. There is way, way too much ambiguity in the case of gays to treat them as a separate minority group, in the same way blacks or Asians or Hispanics are minority groups. In addition, we can point to cases in American history where the basic rights of African-Americans were clearly abridged- were, in fact, enforced by law. There is no equivalent to the old black codes, or Jim Crow, in the case of homosexuals. Certainly gays have been shunned socially at times- I won’t argue with that- but there’s nothing illegal about this, or even inherently wrong. People have a right to their own mores and traditions, even if you find them retrograde and reactionary. I simply can’t support a government that forces people to subsidize lifestyles that counter their own religious beliefs and traditions. It’s bad enough that Christian citizens are forced to pony up for legalized abortions. Now gay marriage, too? You talk about minority rights. What about the rights of Christian Americans?

Certainly you have some good points, Mr. Pettit, and I’m gratified with the politeness and civility of your post. You have illuminated aspects of the Constitutional argument that I hadn’t thought of, and I thank you for that. But I don’t believe your arguments invalidate mine- mine being that the 14th Amendment, as written, says nothing about social relationships, and therefore, the Supreme Court has no right to interfere in state laws governing these relationships, particularly in the case of homosexuals, who may be a minority group deserving of civil rights- and who may not be. We’re just going to have to agree to disagree.

Paul Noonan - 4/23/2004

Actually, I was forgetting that Section 2 of the Fourteenth Amendment calls for the representation in Congress to be reduced for any state that restricted sufferage of adult males for any reason other than participation in rebellion or criminal convictions. This implicitly recognized the authority of the states to restrict suffrage based on race as long as they accepted the reduction of their Congressional delegations.

Of course, as you point out, the right of suffrage of blacks in the South was routinely denied for a century until the 1960s and the Congressional delegations of those states were never reduced, just as the Fifteenth Amendment remained unenforced.

Hans Vought - 4/23/2004

In the case of state constitutional amendments, it depends on how the legal issue is framed. If, as most Democrats seem to be arguing, marriage is a "state's rights" issue - that is, an issue left to state control under federalism - then the state constitution, not the federal constitution, controls. For example, in the 1991 Hawaii case Baehr v. Anderson, the state supreme court initially ruled in favor of the gay plaintiffs, but after the state amended its constitution, the state supreme court made a final ruling in Dec. 1999 that the new amendment made the plaintiff's complaint moot.

Ben H. Severance - 4/23/2004

In one sense, I see your point. Section 1 of the 14th defines citizenship as theoretically all inclusive. But citizenship in the 19th Century did not automatically make you eligible to vote. States determined voter qualifications, as Section 2 of the 14th makes clear (a section designed to encourage southern states to enfranchise blacks). In drafting the 14th, Congressional Republicans were thinking in terms of codifying civil rights, particularly those of the freedmen, not the political rights of suffrage and office holding. However, with the 15th, as you rigthly point out, black suffrage is "explicitly" guaranteed, though the world of Jim Crow rendered the amendment largely irrelevant.

chris l pettit - 4/22/2004

When I mention Amendments in my above post I meant state Amendments such as the one envisioned in Massachusetts violating the federal Constitution. I realise that I was not specific enough nor did I define what I was speaking of in a clear enough manner. Mr. Vought is quite right in his statement about federal amendments...another key aspect of the checks and balances system. If the federal Marriage Amendment were to be passed, it would be part of the federal constitution. Thanks Mr. Vought for clarifying that. i am in your detriment.

CP

Paul Noonan - 4/22/2004

..not the Fourteenth that relates specifically to voting. Actually, the Fifteenth Amendment seems superfluous since the Fourteenth implicitly guarantees that voting rights are not to be abriged because of race, but the Fifteenth Amendment makes it explicit.

Hans Vought - 4/22/2004

Just to clarify, amendments become part of the Constitution. An amendment to the Constitution cannot be overturned by the Supreme Court, as Pettit states. On several occasions Congress and the States have amended the Constitution to "overturn" the decisions of the Supreme Court. The 14th Amendment itself is one example, as Section I overturned the 1857 Dred Scott decision. So if the proposed amendment reaffirming that marriage applies only to two people of opposit sex is passed by 2/3 of the House and Senate and ratified by 3/4 of the States, the only way to overturn it would be to pass another amendment repealing it (as the 21st repealed the 18th).

chris l pettit - 4/22/2004

The Fourteenth Amendment was originally articulated to deal with voting rights problems...Section one that contains the equal protection clause says nothing about voting rights whatsoever. if only voting rights were to be governed by the clause, that is what would have been articulated. While it is true that those bringing the 14th Amendment to the table were thinking mainly of voting rights, they framed the Amendment in such a sense that it could be utilised for other purposes. Flexibility of usage is a key aspect of many Constitutional provisions, for those articulating them realise the problems of getting stuck with too many static provisions.

CP

chris l pettit - 4/22/2004

...and state their own political interpretations of the Fourteenth Amendment. Unfortunately, they are a bit off...and overly narrow strict constructionalism is also not the best pursuit either if you want to actually progress through history instead of being left behind. The Founding Fathers were quite clear in articulating that the Constitution was to be a fluid and ever changing document that was to be developed according to changes in society.

The Court in Loving was not the first to expand the application of the 14th Amendment beyond voting rights. The Fourteenth Amendment, while mentioning voting rights, was designed to apply the Bill of Rights to the all law, federal and state, whereas previously the Bill of Rights only applied to federal law. The Due Process clause of the 14th Amendment is identical to the clause in the 5th Amendment. There is also the important difference between the procedural and substantive aspects of the 14th Amendment. Federalists...who favor a weak judiciary in favor of a strong executive and legislature, have problems with the substantive aspect due to the fact that the courts can legalize crimes that should not have been criminalized in the first place...and actually allow the Constitution to be the fluid and changing document that it was designed to be. It is in this was that the judiciary plays its vital role in the checks and balances system, and protects those vital rights articulated in the Constitution and the Bill of Rights from being trampled by misguided legislative decisions made by certain states. The courst also give those individuals not in the top 10% of society that is actually represented within the legislatures a chance to have their voices heard and rights protected. Were the legislatures truly representative and everyone had a voice in said legislatures, Federalists would have an arguable point. But given the fact that most individuals do not have their interests represented in our duopoly, the judiciary is a necessary outlet to protect those rights. The right to idividual liberty becomes the key turning of when, rather than whether, due process should be applied. Since we are a common law country and rely on precedent, we rely on judges to interpret existing law and societal, historical, and cultural movements (where legal cases are truly decided) to determine how the law applies to certain cases. THose wanting less judicial interpretation and a weaker judiciary are welcome to consider civil law juridictions such as Germany.

This being stated, the courts have made flawed decisions at times (the Dred Scott decision, separate but equal, upholding sodomy laws, striking down gay marriage), but eventually have come around...historically much faster than legislatures. It was legislatures and executives that failed to integrate and recognise civil rights and fail(ed) to recognize gay rights. It is unfortunately the case in this nation that the only true progress made in the field of human rights or civil rights is motivated by social movements and established in law by the judiciary interpreting the rights articulated within the Constitution. If legislatures choose to amend the constitutions, state or otherwise, after these decisions, that is their prerogative, but the amendments are also held to the scrutiny of the existing COnstitution and are invalid if they contradict the existing Constitution (hence the reason why the marriage amendment would not be upheld even if it were passed). Unfortunately, our judiciary has become so politicised that different partisn views dictate the decisions of a majority of justices. This is very problematic, as we have seen during the current crisis regarding the extremists (Scalia, Rehnquist, Thomas) on the Supreme Court and the fact that Bush will be able to appoint more extremists in the same line if he is re-elected. THe process needs to be designed so that judges are not politically appointed, but are chosen by a panel of individuals chosen from all sectors of society. it would also help if judiciary positions were not limited to lawyers, but also legal historians and sociologists in order to get away from the strict positivist interpretation of law that is currently dominating US legal thought and leading us backwards instead of forwards.

The equal protection clause is very key as well since we are dealing with civil rights. All of the marriage laws are blatant violations of this clause by denying equal rights to homosexuals. As with slavery, the reasoning is about the unnaturalness and tradition...the usual crock of bs. The question with this clause becomes whether it can be satisfied by civil unions...something that precedent demostrates was not possible with "separate but equal" laws. Would the same stigma attach? I am not sure, but I suspect that it would. The court would have to engage in a balancing test to determine whether the protection of the rights of homosexuals and the risks that they would be discriminated against was greater or lesser than the "traditional" definition and stereotyping of marriage. With an objective and human rights based court, this issue would not be a problem...which is why the European Courts and South African Constitutional Court see this as a ridiculous case and cant believe that the US is still in the Stone Age on it. By the way...as an aside...the Chief Justice in the Goodridge case is a South African expatriate and brilliant woman. The equal protection clause makes no mention of race...reading "any person..."

By the way...the whole Congress issue? Section 5 states that COngress shall have the power to enforce this article. Huge difference between interpret and enforce. The judiciary interprets the article...and has throughout history. The Congress can decide not to enforce the judiciaries decisions...and there have been many instances, particularly during the civil rights movement, that judicial decisions were disobeyed...but eventually everyone complied...as always happens. history keeps going...either hop on or get run over.

One more thing I should mention in terms of civil unions and the 14th Amendment that is an open question that will have to be raised if civil unions go through: the Court has interpreted the 14th Amendment to enable the prohibition and abolition of practices that may not be unconstitutional in and of themselves, but lead to an unconstitutional purpose (see voting poll tests, etc). If civil unions lead to an unconstitutional discrimination against homosexuals, the Court may be asked to allow gay marriage because of it. I am not saying that this is the case, and arguments can be put forth on both sides since it has not been put into wide enough practice to determine. it may not even be determinable due to the fact that it might be a social stigma or attitude that is discriminatory...an even tougher thing to examine.

If one examines the history of the usage of the 14th Amendment and the clauses within it, one can see the problems with politicising the judiciary. The political makeup of the Supreme Court has led directly to how narrowly the Amendment has been interpreted, regardless of precedent. This leads to an even grayer line of determination and results in less certainty as to when the 14th Amendment is applicable. This current Court is one of the most regressive of our time. The politicisation of the judiciary should be addressed.

I hope i clarified some of the misstaken political points raised in the above post.

CP

Jesse David Lamovsky - 4/21/2004

Problem is, we're not necessarily talking about the rhetorical strategy of the anti-gay marriage camp. What we're really talking about is Prof. Pascoe’s (progressive) definition of the rhetorical strategy of the anti-gay marriage camp. That's a different thing altogether, and it behooves the question: why bother? Why should anti-gay marriage advocates change their rhetoric at all? First of all, many of these folks are arguing from a religious standpoint, and I wouldn’t expect anyone coming from that perspective to water down their beliefs just to temporize the debate. Besides, progressives by and large much have their minds made up as to the “bigotry” and “homophobia” of their opponents, so why bother pandering? We see where it got George W. Bush: he’s been sucking up to the left since he took office, and he still gets slammed as a “racist”, a “homophobe”, and, most absurdly, a “far-right conservative”.

Also, the interpretation of the 14th Amendment that compelled the Supreme Court to overturn miscegenation laws in Loving v. Virginia is, in fact, an erroneous one. Aside from the fact that the “Equal Protection Clause” refers specifically to voting rights, and not the “right” for two men, or two women, to get hitched, it is up to Congress, and only Congress, to “enforce, by appropriate legislation, the provisions of this article”. Not the Supreme Court. I make this argument not as a supporter of a Defense of Marriage Amendment, nor as a fan of miscegenation laws (God forbid!). I simply believe that federalism is the best way to approach this issue. But I would bet my dog and lot that one of these days, not so far off in the future, the Supreme Court will unconstitutionally strike down DOMA acts in the states and nationalize federally protected homosexual marriage, employing this flawed view of the Equal Protection Clause. This is exactly what happened with Roe v. Wade. Which further begs the question: why bother? If we already have an idea that the Supreme Court is going to use an (intentionally) flawed interpretation of the Constitution to further the agenda of gay-marriage advocates, than again, what does the "rhetoric" of their opponents matter? After all, gay-marriage opponents are right on the Constitutional issues involved, and progressives are wrong, but that obviously doesn't make a difference.

David Lion Salmanson - 4/21/2004

I don't think Pascoe is attacking anti-gay marraige advocates. Rather, she is pointing out that their rhetorical strategy is likely to lose in courts now because that rhetoric has already lost in court before; the use of Loving as a precedent in the current cases holds the argument together. If I were anti-gay marraige, I would take away from this article the necessity of changing rhetorical strategies if I were seeking success. Wonder what Russell Arben Fox and the folks over at Times and Seasons make of this?

Hans Vought - 4/21/2004

Of course historians can draw conclusions and have opinions. Rhetorical analysis is fine, but she does not contextualize the use of rhetoric in the current debate. Her point is obviously to suggest that supporters of the traditional heterosexual definition of marriage are intolerant bigots. Attacking your opponents' character rather than answering their arguments is the definition of ad hominem.

Consider the case in reverse: a conservative might write an article showing that Marxists (or some other conservative bogeymen) supported racially mixed marriages, thus implying that supporters of homosexual marriage are all Marxists. Either way it's a logical fallacy.

Jonathan Dresner - 4/21/2004

Actually, that's not what she's discussing at all. What she's very clearly described is the parallel rhetoric used by anti-miscegenation and anti-gay marriage partisans, and suggesting that the logic that was flawed in the mid-20th century might still be flawed in the early 21st.

Lots of other historians have discussed the rise and fall of laws against male homosexual behavior.

Remind me again, why can't historians draw conclusions and have opinions? Informed, reasoned opinions? Why can everyone else use historical arguments ("2000 years of sanctified heterosexuality....") but historians can't?

Hans Vought - 4/21/2004

Dr. Pascoe's succinct history lesson on miscegenation laws was very good. However, she does not demonstrate any connection between miscegenation laws and laws banning homosexual unions. Instead, she implies that since opponents of interracial marriage were vile racists, opponents of homosexual unions must be vile homophobes - and most likely racists, too. This is a misuse of history to conduct what is, in essence, an ad hominem attack. Instead of countering the arguments of those who support the traditional definition of marriage, she calls them names, masking her logical fallacy by using a lengthy but largely irrelevant history lesson.

Whatever one's views on the controversy may be, surely it is not too much to expect that professional historians will not twist history to support their views. Why not discuss the relevant history - i.e., laws regarding homosexual practices?

David Lion Salmanson - 4/21/2004

Except the scarcity argument doesn't work in the American Southwest where the Navajo maintained - and continue to maintain - a matriarchal culture.

Jonathan Dresner - 4/21/2004

Indeed, the increase in single-parent households in urban/minority populations is at least as much caused by as a cause of the rising incarceration rate (note: not rising crime rate, because any crime whose definition has remained more or less constant and for which we have decent records is dropping, as they have for at least a century) which Mr. Tyrka cites as a symptom of non-marriage.

And I'm increasingly familiar with Pacific traditions, which, while different from Western and Asian ones, nonetheless preserve some very powerful patriarchal elements. The argument about scarcity and resources, though, is interesting, in that it suggests the possibility of radically divergent relationship patterns once scarcity has been ameliorated. And that's what we're seeing: patriarchy and mandatory, exclusive heterosexual marriage, having served their historical purpose, are now obsolete?

That's remarkably materialistic argumentation from a cultural traditionalist.

Name Removed at Poster's Request - 4/20/2004

"Yes, I could just as easily have said that, but I didn't because I recognize, as apparently you don't, that family structure was a mutually beneficial arrangement for both parents and children."

So I guess you have no problem with two married gay parents raising children? Your arguments all work against keeping otherwise committed longterm same sex couples with children from marrying.

"All you have to do is look at the burgeoning prison population of violent criminals to see the results of single parenthood combined with a milieu bereft of meaningful values."

You haven't proven cause and effect here. I think the burgeoning prison population is more due to the orgy of prison building since the late 1960s, the lengthening of sentences for existing crimes, the changing of previous misdemeanor into felonies, as well as the legislation of new crimes to convict people on, as well as our country's moralistic, puritanical, punitive drug war.

Robert Henry Tyrka Sr - 4/20/2004

That I "could just as easily have said Marriage historically has been used by societies as a way to maintain male control over women and children, who were considered assets to developed and denied rights of property and independence, which explains the prevalance of polygamy and the acceptance of divorce for infertility"
is true.
Yes, I could just as easily have said that, but I didn't because I recognize, as apparently you don't, that family structure was a mutually beneficial arrangement for both parents and children. The old shibboleth about maintaining male control with all of its attendant evils shows up predominately in societies where basic necessities were in short supply--as they continue to be in the great majority of patriarchal societies today. If you look at societies where this has not been the case--especially in the Western and South Pacific, you can often see very different patterns of male/female/child behavior. Much the same kind of behavior differentials can be seen in other mammals--a study of sea lions in California, as I recall, was particularly illustrative of the change in male behavior toward both his male peers and his harem when food was scarce contrasted with it when the food supply was more than sufficient.

I must say that all this half-baked, feminist-generated twaddle about the evils of male control in marriage gets to be rather tiresome after a few decades. I'm surprised you didn't tell us that a woman needs a man like a fish needs a bicycle.

"Until you study the long-term effects of single parenthood in an environment that is accepting rather than condemning (as the US is), you don't really know that it's a bad thing."

You obviously have little if any awareness or experience of black inner cities, or white rural poverty areas to make such a claim. We are growing ever larger populations of uneducated, and, horrible dictu, uneducable people who have been "raised" by a sometimes- there parent and an indulgent society in such a manner that many have become vicious sociopaths. All you have to do is look at the burgeoning prison population of violent criminals to see the results of single parenthood combined with a milieu bereft of meaningful values.

Jonathan Dresner - 4/20/2004

You assert that "Marriage historically has been used by societies as ways to confer priveleges on male and female bonding in order to reinforce the attempt to have a secure environment for offspring that have, for mammals, such a long maturation process."

You could just as easily have said "Marriage historically has been used by societies as a way to maintain male control over women and children, who were considered assets to developed and denied rights of property and independence, which explains the prevalance of polygamy and the acceptance of divorce for infertility."

Your Scandanavian study is only convincing if you already think that marriage is necessarily a good thing: until you study the long-term effects of single parenthood in an environment that is accepting rather than condemning (as the US is), you don't really know that it's a bad thing. And, being free individuals, whether or not it's a thing with bad results may not actually determine whether we should make it a matter of law.

Robert Henry Tyrka Sr - 4/20/2004

Well, I guess you know where I'm coming from! To call male homosexuals "gay" is like calling Typhoid Mary one who spreads joy. It is counter-descriptive and only serves the purposes of those who wish to propagandize.

Marriage historically has been used by societies as ways to confer priveleges on male and female bonding in order to reinforce the attempt to have a secure environment for offspring that have, for mammals, such a long maturation process.

We have seen, as a result of the weakening of the marriage bond, the horrendous effects on children, and these are accelerating as the weakening continues.

Studies in Scandanavia have shown that those communities that have accepted homosexual marriage have seen a sharp drop in heterosexual marriage as the idea of marriage being something special--having to do with raising children--has disappeared. In those communities where homosexual marriage has been accepted longest, overall marriage rates have declined to the point that more than 80% of children are born to and raised by parents or a parent who are unmarried.