The Supreme Court of the United States (SCOTUS) handed down rulings this week concerning marriage equality in law for same sex couples at the federal and state levels. The Defense of Marriage Act (DOMA), the law which prohibited the federal government from recognizing same sex marriages, was declared unconstitutional and the court refused to hear the appeal of Proposition 8 in California, the ballot measure that changed the California Constitution to add a new section 7.5 to Article I, which reads: “Only marriage between a man and a woman is valid or recognized in California.” Proposition 8 was declared unconstitutional by a lower court, the Ninth Circuit Court of Appeals, in 2012 and the government of California chose not to defend the law on its appeal to SCOTUS. Consequently, a majority of the Justices refused to hear the appeal on the grounds the appellants did not have the constitutional authority, or legal standing, to defend the law in higher courts after the state refused to appeal its loss at trial. These rulings are the latest in an interesting history of legal battles over the definition of marriage in the United States.

While these rulings are a victory in the fight for marriage rights for same sex couples, the fact remains the court was evenly divided in both rulings with a five to four split among the Justices. DOMA with Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan in the majority and Justices John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas dissenting. Proposition 8 was also a split decision with five Justices, John Roberts, Ruth Bader Ginsburg, Antonin Scalia, Stephen Breyer and Elena Kagan representing the majority and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor dissenting. This split in opinion concerning marriage equality among the Justices is reflected in the wider society in which a poll carried out by ABC News and the Washington Post found support for the legalization of same sex marriage at 55% and opposition at 40% respectively. The fight for marriage equality for same sex couples is not over, but for now this is cause for celebration, particularly for gay couples living in California who are now free to marry.

Opponents of same marriage rights for same sex couples remain undaunted. The fight against marriage equality will continue. The arguments they put forward typically rely on appeals to the order of nature, tradition and religion. One of these opponents, Ben Shapiro, an educated conservative political commentator and observant Jew articulates this opposition in asserting “the goal of same-sex marriage proponents is to elevate homosexuality to the same moral level as heterosexuality. If children are not the sole purpose of marriage, they say, any marriage is merely a grouping of two people who love each other. This is absurd. Marriage is implicitly about the relationship between man and woman. Marriage is codification of the idea that a man and a woman in a committed and sexual union make each other and the surrounding society better.” (as cited in Creators.com). He adds “a marital relationship between a man and a woman provides spiritual enrichment for each. The union between a single man and a single woman is, as the liturgy says, blessed. That this blessed union produces the blessing of children demonstrates the Divine origin of such unions. Children are not merely the product of traditional marriage and the beneficiaries of it; they are Divine confirmation that the union of man and woman is special and good.” (as cited in Creators.com)

While this definition of marriage is seen as quite reasonable to opponents of same sex marriage it is worth noting that throughout much of the history of the United States, this definition of marriage between a single man and a single woman applied to men and women of the same race. Marriage between men and women of mixed races was prohibited by law. There was even a proposal to amend the Constitution of the United States to effect a nation-wide prohibition on interracial marriage. A Democratic Congressman from Georgia, Seaborn Roddenbery, introduced the proposed amendment in 1912, in addressing the House of Representatives:

No brutality, no infamy, no degradation in all the years of southern slavery, possessed such a villainious[sic] character and such atrocious qualities as the provision of the laws of Illinois, Massachusetts, and other states which allow the marriage of the negro, Jack Johnson, to a woman of Caucasian strain. [applause]. Gentlemen, I offer this resolution … that the States of the Union may have an opportunity to ratify it. … Intermarriage between whites and blacks is repulsive and averse to the very principles of Saxon government. It is subversive of social peace. It is destructive of moral supremacy, and ultimately this slavery of white women to black beasts will bring this nation a conflict as fatal as ever reddened the soil of Virginia or crimsoned the mountain paths of Pennsylvania. … Let us uproot and exterminate now this debasing, ultra-demoralizing, un-American and in human leprosy.–Congressional Record, 62d. Congr., 3d. Sess., December 11, 1912, pp. 502–503

Though the proposed amendment was never ratified, anti-miscegenation laws, as they were called, remained in effect across most of the United States until 1967 when in a unanimous decision the Supreme Court of the United States declared once and for all these laws unconstitutional. The case before the court was that of Loving v. Virginia. An interracial married couple, Mildred Loving, a black woman, and Richard Loving, a white man, who had been sentenced to a year in prison in Virginia for marrying each other. This was in violation the State of Virginia’s anti-miscegenation law, the Racial Integrity Act of 1924, which proscribed marriage between people classified as “white” and people classified as “colored.” In striking down anti-miscegenation laws, the court held:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. (as cited in Wikipedia)

In handing down its ruling declaring DOMA unconstitutional, the Supreme Court of the United States, in its five to four decision seemingly concurs with the understanding of the court Loving v. Virginian that marriage is one of the “basic civil rights of man” in asserting:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. (as cited in the Huffington Post)

While the fight for marriage rights for same sex couples in the United States is not over, the rulings handed down on DOMA and Proposition 8 in California do not mean that laws prohibiting same sex marriage are unconstitutional nation-wide, this is a step in the right direction.

Posted by Geoffrey