Friday, May 23, 2008

Historic times & Landmark cases

A few weeks ago, on May 2nd, Mildred Jeter Loving passed away due to pneumonia. Mildred, a black woman, was a plaintiff in one of the most important civil rights cases in American history. It was 1967 when the United States Supreme Court headed by Chief Justice Earl Warren decided unanimously to overturn anti-miscegenation laws, in this case the state of Virginia's "Racial Integrity Act of 1924", on the basis that such statutes are unconstitutional. The court's historic decision would end race-based legal restrictions on marriage in this country.

In 1958 Mildred Jeter, of African & Native American descent, married Richard Perry Loving who was Caucasian. Though residents of Virginia, they married in the District of Columbia to avoid Virginia's so-called Racial Integrity Act which banned marriage between white and non-white persons. Back home in Virginia they would soon be charged with "cohabiting as man and wife, against the peace and dignity of the Commonwealth". The statue cited not only banned interracial marriage in Virginia but it prohibited interracial couples from leaving the state to marry and then return home. It seems the racist bigots in Virginia had thought of everything, well, except for the 14th Amendment of the U.S. Constitution, that is.

The Lovings {I find their name distinctly apropos} faced a felony and possible prison sentence for up to five years. This, for the "crime" of marrying each other. It's really hard for a lot of people to imagine such a thing occurred only 4 decades ago. But then such blatant discrimination against couples still carries on to this day as more than 10 states have statues banning same-sex marriage and 24 states have passed constitutional amendments either banning same-sex marriage, same-sex unions or both.

There was no denying the "crime" of love that the Lovings committed in Virginia and so they had little recourse but to plead guilty. Judge Leon Bazile presided over the case. In his decision he stated that "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 marriages. The fact that He separated the races shows that He did not intend for the races to mix."

Again, it's hard to imagine that such a racist statement would be made by a judge in a court of law a mere five decades ago, but then it's not at all unlike the ignorant and bigoted statements such as "God made Adam and Eve, not Adam and Steve." A glib remark that homosexuals have often had hurled at them.

Mildred and Richard Loving were sentenced to a year in prison. The sentence, however, would be suspended on the condition that the couple leave the state of Virginia not to return for 25 years. The couple complied, moving to the District of Columbia. Within a few years the ACLU became involved in the case after a referral by then Attorney General Robert Kennedy. The ACLU, on the behalf of the Lovings sought justice from the Supreme Court of Virginia. Sadly, the court held that anti-miscegenation statues were within the bounds of the Constitution. The court claimed that the Equal Protection clause of the 14th Amendment was not violated since both Caucasian and non-Caucasian spouses were treated equally in being barred from marriage to each other and punished equally if having done so. That's some really convoluted logic at work there, but this is not unlike arguments I've heard from anti-same-sex marriage advocates who claim that homosexuals and same-sex couples are not discriminated against by bans on same-sex marriage because "heterosexuals cannot marry people of the same gender, either." Thus, they argue, the law is applied evenly.

The case would be appealed further, making its way to the United States Supreme Court in 1967. Finally justice would be meted out when the court unanimously decided that anti-miscegenation laws do violate both the Due Process and the Equal Protection clause of the 14th Amendment. In particular the court stated, "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."

Thus, justice finally prevailed, though had the phrase been invented at the time {I'm assuming it wasn't, yet}, I'm sure such a decision would have been labeled by racists, using the modern vernacular, as "activist liberal judges" who were overruling the "will of the people". As slavery and segregation has proved, in a society that respects freedom and egalitarianism, some injustices just shouldn't be left to majorities to decide.

Happily, Mildred and Richard Loving remained married until Richard's untimely death in 1975 in a car accident. They have been survived by three children and now many grandchildren.

In more recent times, much to the consternation of individuals and organizations who believe marriage should be unique {read: exclusive} to heterosexual couples only, the Loving vs. Virginia case has been cited by same-sex marriage advocates as a comparison of the injustice of prohibitions against same-sex marriage. Many on the conservative side of this issue dismiss such comparisons, claiming that the two aren't legitimate comparisons. They claim "opportunism" in "using" racial issues. Those who are immersed in their prejudices find it easy to dismiss the plight of those they are prejudiced against.

Fortunately, perhaps the most qualified person of all, Mildred Loving herself, stated on year ago on the 40th anniversary of the Supreme Court's decision {June 12 - a.k.a. "Loving Day"}: "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."

Even in the face of the beliefs of someone so close to suffering and overcoming the personal injustice of archaic prejudices the naysayers continue to claim that "tradition" be upheld. This in spite of the fact that this sort of specious justification for banning interracial marriage certainly wasn't and isn't legitimate. Rationalizations that intermarriage would "weaken the races" are no less well-reasoned than the argument that same-sex marriage somehow undermines the heterosexual family structure.

It is with great symbolic irony that just a week after the passing of Mildred Loving, on May 15th, that the Supreme Court of California found that state laws which discriminate against same-sex couples are unconstitutional. In effect, domestic partnerships {a legal union granting limited rights to couples regardless of gender ratio} are not an adequate substitute for actual "marriage". The Chief Justice in the case cited a state case in 1948 that overturned state laws which prohibited interracial marriage. He elaborated that sexual orientation is a protected class under the Equal Protection Clause of the California State Constitution, a first for a court of such authority.

In less than a month, same-sex couples will be permitted to marry in the state of California, this as so-called "traditional marriage" groups work feverishly to pass new laws which will write discrimination into the State's constitution. What sort of shameless people would have insisted on a prohibition of interracial marriage be added to the national constitution after the US Supreme Court? The same sort that now seek to deny equality and egalitarian principles to other citizens simply because of religious customs or a discomfort with these people's "lifestyle" as they put it.

Of course anyone can refer to interracial coupling a "lifestyle" choice, but few would deny that such a "choice" is one that people do and should have a right to make. It remains to be seen whether bigotry will prevail in California. In spite of great achievements across the country, discrimination against homosexuals is institutionalized in not only society but throughout government. It is the latter that is so threatening, as in a free society all people should come to their government as equals. Even though in Massachusetts and soon to be California same-sex couples will enjoy the same rights, the same privileges, the same legal status as opposite-sex couples at the state level, when it comes to the Federal level, thanks to the so-called 'Defense of Marriage Act' signed by President Bill Clinton, homosexual partnerships will continue to be legally inferior to heterosexual partnerships. In addition, of course, same-sex adoption is still banned in many states. Being openly gay in the military is still not permitted and sexual-orientation can still be cited as a grounds for non-employment or housing in various locales across the country. Disgraceful laws that prohibit sexual relations between members of the same sex {though ruled unconstitutional by the Supreme Court in 2004} are still on the books in many communities, harkening back to the era when interracial sexual contact was prohibited on similar fallacious grounds of "decency" and "morality".

Discrimination based on race and in particular sexual-orientation continues on in this country, but the decision to strike down the "will of the people" who had dictated that homosexuals and same-sex couples are not worthy citizens deserving of equal rights is as relevant and just as when a court struck down in the name of justice some 41 years ago the "will of the people" who had dictated that interracial couples aren't worthy of a right to choose their partner.

It is a very slow process, requiring decades or even centuries, but justice slowly prevails. Within a generation homosexuals will hopefully enjoy genuine equality in this country. It will likely take much longer. Part of that will come about due to a change in attitude, this is inevitable, and there will be setbacks. Part of it will come about from landmark cases like those in Massachusetts and California. As I believe the case of Loving vs. Virginia proves, the world can indeed be changed for the better one law and one marriage at a time.

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