“… It is important for America to come together even though we may have disagreements on certain social issues.”
– Barack Obama on why he chose anti-gay marriage activist Pastor Rick Warren to give the invocation at the inauguration
Gay marriage isn’t a social issue. It’s a civil rights issue. And Barack Obama should understand the significance of that difference. In the 1950s and early 1960s, many whites insisted that black civil rights should be treated like social issues, that black civil rights leaders should go slowly and seek common ground and accommodation instead of receiving immediate, full rights. Today, the same is being demanded of gays and lesbians. Barack Obama asks that gays and lesbians try to find common ground with those who oppose their civil rights.
Is gay marriage a civil rights issue? By definition, civil rights issues affect the rights of personal liberty guaranteed to United States citizens by the 13th and 14th amendments to the Constitution, and in similar provisions in state constitutions. The 13th amendment abolished slavery. The 14th amendment mandates equal protection for all under the law. Civil rights, say gay-marriage opponents, are about race and gender, not sexual orientation.
Laws that deny people the right to marry are certainly civil rights issues. That was shown in the case of Loving v. Virginia, 388 U.S. 1 (1967), which involved a married couple from Virginia: Mildred Loving, an African-American, to Richard Perry Loving, a white man. The U.S. Supreme Court, in overturning the Virginia law that banned marriage between blacks and whites, stated as its premise that “marriage is one of the basic civil rights of man…” The ruling also found that the Virginia law violated the equal protection clause of the 14th amendment.
The California Supreme Court decision of May 15, 2008, linked the basic civil right of marriage to equal protection under the law for gays and lesbians. It overturned a state law defining marriage as between man and woman, declaring not only that marriage is a constitutional right, but also that equal protection in the state Constitution granted the right of marriage to everybody.
The decision firmly equated discrimination on the basis of sexual orientation with discrimination based on race or gender. The court also found that there was no compelling state interest in banning gay marriage and that such a ban can bring harm to gay couples and their children. It’s hard to see how the recently passed Proposition 8 in any way changes that ruling. California voters have amended the state Constitution, but that amendment still violates equal protection. Prop. 8 very probably will be struck down as unconstitutional.
Opponents to gay marriage argue that there is a compelling state and national interest in maintaining marriage as between man and woman only. The compelling interest is a moral one, they say. This argument is nothing new in the annals of American civil rights. White racists of the American past also claimed morality to defend their opposition to interracial marriage, desegregation and other civil rights issues. There are countless examples of this, but one that’s apropos comes from the State of Virginia’s defense in Loving v. Virginia: “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.”
We hear similar moral arguments about God’s intention to oppose gay marriage from the mouths of Pastor Rick Warren and his ilk. It’s not uncommon for people to hide their fears behind the curtain of morality.
Such moral arguments eventually will run out of steam in court. The lack of a compelling interest and the mandate for equal protection eventually will lead to the legalization of gay marriage. One of the best arguments for it came from Mildred Loving, who issued a rare public statement on the recent 40th anniversary of Loving v. Virginia:
“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.”
