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August 7, 2010

STEPHANIE SALTER: Part of the back story of recent same-sex marriage rulings

Stephanie Salter The Tribune-Star

TERRE HAUTE — In the summer of 1958, Mildred Jeter and Richard Loving left their home city of Richmond, Va., for Washington, D.C., so they could be married. Jeter, who was 18 and pregnant, was of African and Native American ancestry, while Loving, six years her senior, was white.

The two were prohibited from marrying in Virginia by the state’s Racial Integrity Act of 1924. A few weeks after the Lovings came home, police descended upon their house and confronted them in their own bed. The police had timed their raid in anticipation of catching the couple engaged in sex, which also was illegal between races.

The Lovings’ D.C. marriage license compounded their crime because Virginia not only outlawed interracial marriage and sex, it also prohibited mixed-race couples from marrying in another state and coming back to Virginia.

On Jan. 6, 1959, the Lovings pleaded guilty at trial to the felony charges of marrying out of state, returning to Virginia and “cohabitating as man and wife against the peace and dignity of the Commonwealth.” To avoid a year in prison, Mildred and Richard moved to the District of Columbia.

Over the next eight years, thanks to the American Civil Liberties Union, their determination to be legally recognized as sanctioned husband and wife wound its way through the lower and appellate courts. Virginia and other states with similar anti-miscegenation laws fought the entire way, arguing everything from the need to maintain racial purity and states’ rights to God’s divine and deliberate discrimination.

On June 12, 1967, the U.S. Supreme Court ruled 9-0 in the Lovings’ favor, pronouncing marriage a fundamental right of U.S. citizens and finding Virginia’s Racial Integrity Act a violation of the Lovings’ Constitutional right to equal protection under the law. Anti-miscegenation statutes throughout the nation were wiped out.

Loving vs. Virginia has enjoyed a renaissance this past week, outside of the customary confines of law school curriculum and civil rights history: A federal judge in California expressed similar reasoning in his ruling against Proposition 8, a 2008 ballot measure that made same-gender marriages illegal in the state.

Denying lesbian and gay couples state-sanctioned marriage — with all its legal and financial privileges and benefits — placed California in violation of the United States Constitution, ruled Chief U.S. District Court Judge Vaughn R. Walker.

Appointed by the first President George Bush, Walker wrote in his 135-page ruling: “The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the equal protection clause because it does not treat them equally.”

The case, Perry vs. Schwarzenegger, was brought on behalf of two, same-gender couples and was argued before Walker in January. The plaintiff’s legal team is an unlikely but powerful duo: liberal Democrat David Boies and conservative Republican Ted Olsen, who had been on opposite sides of the Florida recount case during the 2000 Presidential election. Although California Gov. Arnold Schwarzenegger’s name represented the state in the lawsuit, neither he nor Attorney General Jerry Brown supported the defense with legal or monetary aid, and both hailed Walker’s ruling.

 Walker said the defenders of Proposition 8 had failed to demonstrate how same-sex marriage threatens the welfare of the state and thus justifies discrimination against homosexual couples.

 Proposition 8, Walker said, “was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. The Constitution cannot control private biases, but neither can it tolerate them …”

“That the majority of California voters [52.3 percent] supported Proposition 8 is irrelevant,” Walker wrote. “Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

Last month, a federal judge in Boston employed similar logic in ruling that the Defense of Marriage Act, passed by Congress in 1998, violates the equal protection clause of the Constitution.

Likewise, in the 2009 unanimous decision by the Iowa Supreme Court that overturned a 10-year prohibition of same-sex marriages, Justice Robert Cady wrote: “We are firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective.”

Referring to the “religious undercurrent propelling the same-sex marriage debate,” the seven-justice Iowa court said: “Our [state] constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring that government avoids them. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a duel-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection under the law.”

 At Mildred and Richard Lovings’ trial in 1959, the sitting judge, Leon N. Bazile, defended what the state of Virginia insisted was the legitimacy and authority of its Racial Integrity Act.

“Almighty God created the races white, black, yellow, Malay, and red, and he placed them on separate continents,” Bazile said. “And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

On the 40th anniversary of the Supreme Court ruling in Loving vs. Virginia, Mildred Loving, in her mid-60s and a widow, felt compelled to speak about her and her husband’s fight for their peace and dignity as a married couple. In a rare public statement, she said:

“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry.

“I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

“I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

Some day, when appeals in the Proposition 8 and Boston cases are heard by the U.S. Supreme Court (as all involved parties predict they will be), Mildred Loving will not physically be there: She died in May 2008. But the Lovings’ struggle to be recognized as worthy of a government-issued marriage license in the United States of America will be as present as the Constitution that affirmed their worth.



Stephanie Salter can be reached at (812) 231-4229 or stephanie.salter@tribstar.com.

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