Magazine article Poverty & Race

Same-Sex Marriage: The Supreme Court Chose States Rights over Equal Rights

Magazine article Poverty & Race

Same-Sex Marriage: The Supreme Court Chose States Rights over Equal Rights

Article excerpt

Should the states decide whether black Americans can marry white Americans?

Today, that idea seems absurd. Most Americans believe that states shouldn't be allowed to trample the basic right of interracial couples to marry-even if a majority of people in a state want to do so. It would be unfair-a clear violation of equal rights. That's one reason we have a federal government.

But that's exactly what the Supreme Court did in June. Its two rulingsoverturning the federal Defense of Marriage Act (DOMA) and invalidating California's Proposition 8 (which banned same-sex marriage) on technical grounds-reflect the basic conservatism of the Roberts Court. They stopped short of proclaiming same-sex marriage a basic right. They left it to the states to determine whether gay Americans have the same right to marry as their straight counterparts.

Compare this to the Supreme Court's bold 1967 ruling in Loving v Virginia, which knocked down state anti-miscegenation laws. At the time, "states' rights" was the justification used by Southern racists to defend Jim Crow laws, including school segregation, racial discrimination in restaurants and buses, severe limits on voting by African Americans, and bans on interracial marriage. Back then, the Supreme Court was ahead of public opinion regarding interracial marriage. In June, the cautious Supreme Court was far behind public opinion on same-sex marriage. It is hard to see how the legal case for same-sex marriage is any different, but the Supreme Court chose to advocate states' rights over equal rights.

Nevertheless, advocates of samesex marriage are rightly celebrating. The June rulings did represent a major victory for social justice. The battleground now moves to the states. In the past year alone, six states have legalized gay marriage, bringing the total number to 13 states, including California. In contrast, 29 states now have constitutional amendments defining marriage as between a man and a woman. There's no doubt that in the near future, gay activists and their straight allies will persuade many states to overturn those laws and legalize same-sex marriage, but the fact that they will have to do so on a stateby-state basis reflects the Supreme Court's essential conservatism.

The battles to end prohibitions on interracial marriage and same-sex marriage were not simply legal matters fought out in the courts. They were part of broad social movements that involved a variety of protest tactics that injected the issues into the public debate and challenged Americans' cherished views. The legal strategy was part of a wider arsenal of tools used to bring about change.

In 1948, the California Supreme Court legalized interracial marriage in Perez v Sharp. It was the first state to do so. At the time, most Americans opposed the idea. Ten years later, when half the states still had laws prohibiting interracial marriage, 96% of Americans opposed black-white marriages. By 1967, when the Supreme Court decided the Loving v Virginia case, 16 states still had anti-miscegenation laws on the books. More shocking, 72% of the American public still opposed interracial marriages.

It wasn't until the 1990s that even half of Americans said they approved of marriage between blacks and whites. In 2011, the most recent poll on the topic, 96% of black Americans and 84% of white Americans supported interracial marriage. It may be shocking to some that 16% of white Americans still disapprove of interracial marriages, but the shift in public opinion over five decades has been steady, irreversible and overwhelming. Equally important, 97% of Americans younger than 30 support interracial marriage.

In 1967, the Supreme Court justices, no doubt influenced by the Civil Rights Movement, ruled that states did not have the right to ban marriage between people of different races. They based their ruling on the 14th Amendment's "equal protection" and "due process" clauses.

The case was filed by an interracial couple- Mildred Jeter Loving, a black woman, and Richard Loving, a white man-who lived in Central Point in rural Virginia. …

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