Sunday, November 30, 2008


In Western cultures, for the most part we marry for love. The idea that someone else has the right to choose a spouse for us and we are honour/tradition/legally bound to marry the chosen person is outrageous to us, a clear violation of our right to self-determination.

Equally repugnant is the idea that we can be told who not to marry. It wasn’t that long ago, after all, that miscegenation laws were still on the books of many US states and that right to our freedom of choice in marriage partners was abridged. In 1958 in the state of Virginia, a black woman and her white husband were arrested in their own bedroom for living together as an interracial couple. The judge offered to suspend their sentence if they would agree to exile: they were to leave their home state of Virginia for a minimum of 25 years.

It took nearly ten years of that time for their case to come to the US Supreme Court, but in 1967 the Court ruled: “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…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…discriminations. Under our Constitution, the freedom to marry, or not to marry, a person…resides with the individual and cannot be infringed by the State.”*

At the time of this ruling, 17 Southern states (all of the former slave states plus Oklahoma) still enforced miscegenation laws. After this ruling, those laws were no longer in effect and numerous states repealed them. But it took South Carolina until 1998 and Alabama until 2000 to officially amend their constitutions. The laws were repealed, but hardly by a landslide. More than 30 years after the federal government prohibited racial discrimination in marriage, 38% of voters in South Carolina and 41% of voters in Alabama were against repeal of these discriminatory statutes.

Interestingly, when we marry we accrue to ourselves and our partners a host of legal and customary rights that are not available to us when we cohabit. The “it’s just a piece of paper” argument isn’t really correct because without that maligned piece of paper, you are denied certain rights that automatically devolve onto you and your marriage partner. And while I am sure most of us do not have those rights in mind as we blissfully march down the aisle, they exist for us whether we take them into consideration at the moment we whisper “I do” or not.

As many as 1400 federal rights alone, I have heard, exist for married partners that are denied the unmarried. People who cavalierly dismiss marriage as an unnecessary formality surely have not considered the end-of-life dramas involving who is legally next-of-kin in terms of hospitalization, insurance coverage, inheritance, even custody of the body and funeral arrangements. There are immigration rights, tax benefits, Social Security, pension, child custody and spousal maintenance…hundreds upon hundreds of rights that married people have that are denied cohabiting couples, regardless of how long or heartfelt the relationship. A bride of two days has significantly more legal rights than a cohabiting partner of twenty years.

Domestic partnerships and civil unions have been suggested as a viable alternative to those who decide to live together without the benefit of marriage…either by choice or by laws that prohibit their marriage. The problem with domestic partnerships is that while they can address a few legal situations that are controlled by the state in which they register their partnership, they are denied all federal marital benefits and, if the partners are out of their home state, the protections they enjoy under that state’s domestic partnership laws are not necessarily enforceable in a neighbouring state. Imagine falling ill on holiday and finding your partner prohibited from visiting you in the hospital because your family doesn’t like him? Imagine losing your partner in an accident and suddenly finding your home invaded and picked clean by his family, the house you have called home for so long sold out from under you, maybe even your car spirited away because it was all in his name and you have no legal claim because you never bothered to get that oft disdained piece of paper?

Too often when we are in love we don’t look at the future with our eyes wide open. Paul McCartney was love-struck and, smitten, trusted that his love for Heather Mills would last a lifetime…it had with Linda Eastman, after all. Besotted, he refused to acknowledge reality and ask for a pre-nup, much to his later chagrin. In that same vein, we often overlook other practical matters when we partner up, failing to take into account the disastrous potential consequences of our failure to tidy up our relationship with all the legal bits and bobs that protect us…and our partner…in the future.

These laws exist to protect us…well, most of us. Just as Mildred and Richard Loving were denied equal protection under the law in 1958 in Virginia, so are legions of Americans being denied the same protections today in the form of laws that prevent consenting adults from entering into the protected status of marriage. A majority of their fellow citizens agreed that the Lovings should not be allowed to marry, some states even had constitutional prohibitions against such marriages.

But under US law, while states have the right to make certain laws…marriage laws in particular…for their residents, states cannot make or enforce laws that are contrary to federal law. And so, despite the constitutions of South Carolina and Alabama prohibiting interracial relationships, on that day in 1967, Mildred and Richard Loving caused interracial marriage prohibitions to be invalidated in every state in the union, regardless of whether those prohibitions were enshrined in the state constitutions or they were simply in the state’s codified body of law. Two people wrangling with one state over the right to marry the person of their choice changed the law for every person of every colour in every state of the union.

How different is this from the current flap over gay marriage? If you’ll look at the quote in the third paragraph, you probably didn’t notice that I removed the language that refers specifically to race. Doesn’t the principle hold true, whether the discriminating factor is colour, gender, or something else? The judge who exiled them, when asked to reconsider, stated “Almighty God created the races white, black, yellow, 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.”* This contention, of course, was struck down by the Supreme Court as being irrelevant in the face of the rights of citizens to have equal protection under the Fourteenth Amendment.

Today people argue that same sex people should not marry because physiologically, they were never intended to do so. This, of course, echoes the same specious logic used by Judge Leon Bazile above, citing God having placed the various races on different continents, with the intent to keep them separate. It takes rather a lot of hubris to speak the mind of an omnipotent, omniscient being when you are neither…how could Bazile know the mind of that omniscient being? How can we know whether or not same-gender attraction is intended or not? And who, after all, has the right to deny his neighbour the same rights he, himself, is allowed to exercise?

I have come to the conclusion that the passing of Prop 8 in California is not the disaster I initially thought it to be. While it does present an immediate setback to gay marriage in California, surely someone is going to appeal this to the US Supreme Court and test it against the Fourteenth Amendment. Bearing in mind that, in the Loving case, miscegenation laws were supported by a majority of voters in the affected states and the Supreme Court didn’t care, I think Loving v Virginia may well set the perfect precedent for not only overturning California’s proposed constitutional amendment prohibiting gay marriage, but, like the Loving case, end the discrimination nationwide.

We can only hope!


1 comment:

  1. Your post is comprehensive, thoughtful and exceeding well written. As you already know my position on this issue is the same as your own.

    Given the divorce rates, it's sad that so many choose to fearfully cling to harmful love negating regressive traditions. Creating new opportunities to celebrate the expression of love, and the desire to make long term commitments is long overdue.


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