Legal History

(Part Two of a Six-Part Series)

by Justin VanLeeuwen

Read Part One      Read Part Three      Read Part Four      Read Part Five      Read Part Six

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). 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 discriminations. 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. — Chief Justice Earl Warren, Loving vs. Virginia (1967)

I do not think it possible to discuss the topic of marriage without addressing the legal history. I will reference several cases in this post, but because of the constraints of space (this is a blog after all, not a book), I will be forced to gloss and simplify what can be subtle and complex arguments. Thus my treatment of this topic will of necessity contain omissions (that fact probably bothers me more than it does you), but I eventually had to force myself to stop reading, cross referencing, and re-reading cases and simply sit down and write. I encourage you to go read the cases yourself (they are surprisingly accessible, actually), and in the meantime I beg your forbearance as I attempt to distill a great deal of material into a workable post.

For the sake of context, I will quickly run through some of the major court cases and relevant historical events.

• 1883 – In Pace v. Alabama the Supreme Court of the United States (SCOTUS) unanimously upheld miscegenation laws, specifically the criminalization of interracial, extramarital intercourse.
• 1964 – In McLaughlin v. Florida SCOTUS unanimously struck down a Florida law criminalizing interracial, extramarital intercourse. This ruling overturned Pace.
• 1967 – In Loving v. Virginia SCOTUS unanimously ruled that miscegenation laws, specifically those banning interracial marriage, violated the equal protection and due process clauses of the Fourteenth Amendment.
• 1969 – The Stonewall Riots erupted in New York City, sparking the launch of the Gay Rights Movement.
• 1972 – In Baker v. Nelson SCOTUS summarily dismissed a challenge on the same grounds as Loving to legalize marriage for same-sex couples.
• 1986 – In Bowers v. Hardwick SCOTUS upheld a Georgia law criminalizing private, consensual sex between same-sex adults.
• 1993 – Don’t Ask, Don’t Tell became law.
• 1996 – The Defense of Marriage Act became law.
• 1996 – In Romer v. Evans SCOTUS struck down a Colorado Constitutional Amendment that forbade the state and municipal governments from passing any laws or statutes that included sexual orientation in non-discrimination clauses (the amendment itself had also struck down such laws and statutes that had already been passed).
• 2003 – In Lawrence v. Texas SCOTUS struck down sodomy laws in Texas and thirteen other states, ending the criminalization of homosexuality. This ruling overturned the Bowers decision of 1986.
• 2012 – In Perry v. Brown the Ninth Circuit Court of Appeals upheld the ruling of the Federal Court for the Northern District of California (Perry v. Schwarzenegger, 2010) striking down Proposition 8, a voter initiative that amended the California Constitution so “only marriage between a man and a woman is valid or recognized in California.” This case is currently on appeal to SCOTUS as Hollingsworth v. Perry.

In a later post I will address more fully and directly the objections I’m sure I provoked by paralleling the marriage cases for interracial and same-sex couples. For now, I’d just like to point out the common legal trend in that regard. In both cases, state laws criminalized private sexual intimacy between consenting adults, and SCOTUS upheld those laws when they were initially challenged. Also in both cases, SCOTUS overturned its previous rulings on those specific issues and explicitly reserved the question of marriage rights to a later time. With Loving, ¹ SCOTUS struck down laws banning marriage rights based on race categories, and I expect that the case for marriage equality for gay and lesbian couples will succeed on the same basis.

I would like to spend a bit of time discussing Loving because it comes up a lot in the debate over marriage equality. Of significance is the issue of jurisdiction. Marriage has been traditionally within the realm of the states to regulate as they wish.² But in Loving the Court made clear that the states must bow to the Fourteenth Amendment when the issue of marriage arises as a fundamental right. (See the quote with which I began this article.)

Also of significance, the State argued that the Framers of the Fourteenth Amendment did not intend for it to apply to miscegenation laws at all, and it supported its claims by statements made in Congress and by the fact that most states (even northern states) had laws banning miscegenation at the time the Fourteenth Amendment was ratified.³ On that basis the defense posed a familiar question: “How can a subsequent difference in approach of this Court after the Framers of the Fourteenth Amendment are dead and buried possibly have any effect upon what they intended when they wrote this language?”

Less subtly put, the defense told the Court that should they rule that interracial couples have a right to marry, they could only do so as activist judges ⁴ (as it would be phrased today), disregarding the original intent of the law.⁵  However the Court ultimately determined that “although these historical sources ‘cast some light’ they [were] not sufficient to resolve the problem”⁶ of whether the framers had intended the Fourteenth Amendment to address miscegenation laws. However, the Court did determine “that the requirement of equal protection of the laws is [not] satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished.”

And with that we have arrived at the crux of the argument against marriage rights for interracial couples — separate (categories) but equal (punishments) — but to treat it properly, we must back up a bit and see how this argument played out historically. In the upheaval after the Civil War, the traditional southern power struggled to regain control, ultimately putting in place what we now know as the Jim Crow laws, but for a brief moment in 1872 in Alabama, sympathetic judges sat on the State Supreme Court, and in Burns v. State, they struck down Alabama’s miscegenation laws. By 1874 the judges had been replaced, and the new Court overturned Burns in Green v. State, reinstating the miscegenation laws. In response to Burns’ argument (among others) that “the [Fourteenth Amendment] intended to destroy the distinction of race and color, in respect to the rights secured by it,” Green stated, “This seems to us a very narrow and an illogical view of the subject. And it might, perhaps, be a sufficient answer to it to say: What the law declares to be a punishable offense, is, marriage between a white person and a negro.”⁷ In this statement we find a formulation of the argument that interracial marriage constitutes a separate act from intra-racial marriages (i.e. that a black man marrying a white woman or vice verse is categorically different from a black man marrying a black woman) and that the mere existence of a law against it is justification enough.

In Pace v. Alabama (1883) SCOTUS echoed that mantra only with vastly increased cognitive dissonance. In reference to the Equal Protection Clause of the Fourteenth Amendment, the Court affirmed that

the counsel [seeking to overturn miscegenation laws] is undoubtedly correct in his view of the purpose of the clause of the amendment in question, that it was to prevent hostile and discriminating state legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. (emphasis added)

In overturning Pace in 1964, the McLaughlin Court pointed out how the Pace Court could simultaneously affirm the sentiment of the Fourteenth Amendment and yet undercut it:

But taking quite literally its own words, ‘for the same offence,’ the Court pointed out that Alabama had designated as a separate offense the commission by a white person and a Negro of the identical acts forbidden by the general provisions. There was, therefore, no impermissible discrimination because the difference in punishment was ‘directed against the offense designated’ and because in the case of each offense all who committed it, white and Negro, were treated alike.

In the same way Loving reaffirms McLaughlin’s opinion that, contrary to the misguidedly fastidious finding of Alabama’s Supreme Court in Green, such rationale “represents [the truly] limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court” (McLaughlin, quoted in Loving). The Court ends its decision in Loving by reaffirming its holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men . . . . 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” (Loving).⁸

I would now like to move on explicitly to the legal case for marriage equality for gay and lesbian couples. Baker v. Nelson came before the Court only five years after the decision of Loving, and the Court summarily dismissed it “for want of a substantial federal question.” Because of the manner in which it came before the Court, the dismissal constituted binding precedent but only on the identical issues raised in Baker. The Court thus clearly disassociated the question of marriage rights for gay and lesbian couples from those of interracial couples, and while this has proved a barrier to marriage cases to date, I believe the casual manner in which the Court brushed aside the case more accurately reflects the social mores of the time than the actual lack of a constitutional question (it would be fourteen years before the Court would uphold laws criminalizing homosexuality, thirty-one before it subsequently overturned the same ruling). At the same time the arrival of gay rights cases before the court belies the short shrift with which the Court originally greeted them.

This brings us to Bowers v. Hardwick (1986) and Lawrence v. Texas (2003),⁹ in which the arguments on both sides followed very similar lines. That being the case, I will deal with these cases jointly. As a reminder, in Bowers SCOTUS upheld sodomy laws, and in Lawrence SCOTUS struck them down. The majority opinion in Bowers and Justice Scalia’s dissent in Lawrence make great efforts to frame the question in terms of “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy” (Bowers). Both substantiate their assertion that it does not do so by employing one of two formulas the Court has established to identify fundamental rights not explicitly stated in the Constitution: by asking whether they are “liberties that are ‘deeply rooted in this Nation’s history and tradition’” Bowers quoting Moore v. East Cleveland. Judging on the narrow issue of homosexual sodomy, they do not tire themselves overmuch to build a case that sexual activity between members of the same sex has been criminalized in the majority of states for extensive periods of time and is thus not deeply rooted in American history or tradition. However, as I have already pointed out in the miscegenation cases, interracial sex and interracial marriage were also singled out as discrete offenses by virtue of the fact that they could be committed only by an interracial couple. Scalia’s words seem almost intentionally to echo that sentiment:¹⁰  “On its face [the law] applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex . . . . [M]en can violate the law only with other men, and women only with other women” (Lawrence, Scalia dissenting).¹¹

In contrast, Justice Blackmun states at the outset of his dissent in Bowers, “This case is [not] about ‘a fundamental right to engage in homosexual sodomy,’ as the Court purports to declare, . . . [but] rather, this case is about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone.’ Olmstead v. United States.” Blackmun places the issue of the personal, sexual lives of gays and lesbians squarely where it belongs — within the realm of the right to privacy that safeguards the private sex lives of married and unmarried heterosexuals. Gay sex is not gay sex; it is simply sex, and as such, it ought not to be subject to different rules depending on a person’s orientation. In assessing the majority opinion in Bowers, Blackmun concludes that “the Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.”

He also summarily dismisses the argument based on the history of criminalizing sodomy: “Like Justice Homes, I believe that ‘[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.’”¹² Furthermore, if we were to use that standard to determine the existence of rights in a racial context, the fact that miscegenation laws date back to the early colonies¹³ would equally demonstrate that we had no history or tradition of interracial marriage, but that did not prevent the court from ruling that such discrimination was “invidious.”

Blakmun then asserts his major point which would become the controlling opinion in Lawrence when Bowers was overturned seventeen years later and with which Scalia would take great issue: “If this [constitutional right to privacy] means anything, it means that before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an “abominable crime not fit to be named among Christians.” I would love to copy this entire section out of Blackmun’s dissent, but I will satisfy myself with this single excerpt:

The assertion that ‘traditional Judeo-Christian values proscribe’ the conduct involved, Brief for Petitioner 20, cannot provide an adequate justification for § 16-6-2. That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine. See, e.g., McGowan v. Maryland, 366 U.S. 420, 429-453 (1961); Stone v. Graham, 449 U.S. 39 (1980). Thus, far from buttressing his case, petitioner’s invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy’s heretical status during the Middle Ages undermines his suggestion that § 16-6-2 represents a legitimate use of secular coercive power. A State can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus.

The only meaningful claim Scalia makes by way of response is that “this proposition is so out of accord with our jurisprudence – indeed, with the jurisprudence of any society we know – that it requires little discussion.” True to his word, he discusses it little: he takes all of two paragraphs to respond to the foundation of the argument against which he dissents in Lawrence, and that being the case, I include them in their entirety below.¹⁴ He does not cite one case or address a single argument that Blackmun put forward in support of his position. Indeed he ignores Blackmun’s dissent altogether, giving Steven’s dissent (the smaller of the two) an honorable mention. The remainder of Scalia’s argument on this point consists of a mere statement that “if . . . the promotion of a majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.” This statement (it is not an argument unless you consider it implied) assumes that the validity of principle must be measured by the effect it has on the laws, and for a man who decries “result-oriented expedient[s]” (Lawrence, Scalia dissenting) it seems at best an inconsistent position to take.¹⁵

But so far, I have only directly addressed sexual relationships. What of marriage? In striking down sodomy laws, the majority in Lawrence declares that its decision “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter” to which Scalia promptly responds, “Do not believe it.” He proceeds to say:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante,at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”?

This is not an argument against the ruling but merely a statement of Scalia’s perspective on how the ruling affects law not considered in the case at hand. And while I find Scalia’s point here persuasive (I think the decision in Lawrence determines the eventual case for marriage equality), I do not find it surprising, as Scalia apparently does, that the Court evaded the issue. They did the exact same thing in the miscegenation cases.

In closing, I would like to address Scalia’s seemingly reasonable contention that the issue of gay rights and marriage equality belong solely in the legislatures and not in the courts. He says:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. . . . One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly.

Notice how he starts by framing it in terms of what the oppressed group might accomplish but ultimately ends at affirming the right of a majority to reject the minority at whim (there need be no rhyme or reason to their actions: a “feel[ing]” is sufficient). This is more than an argument for the status quo. This is an argument in support of empowering a majority to disadvantage unfavorable groups. We are not talking about foreign policy, how to properly finance our public schools, or how we want to zone a city. We are talking about people’s lives. When it came to slavery or freedom for all, we fought a war. Without it, we would not have the Thirteenth Amendment abolishing slavery. And even after the war, the former Confederate States refused to ratify the Fourteenth Amendment. Only after Congress dissolved their governments and placed them under martial law with a requirement of ratifying the amendment as a qualification for reentry into the Union did the states comply. Whether this was constitutional is open to doubt; Congress revoked the Supreme Court’s jurisdiction to rule on a case that would have had implications for the Reconstruction Acts, as they are called. This change was not democratic, but it was necessary because it dealt with the rights of people. I do not pretend that the situation of gays, lesbians, and transgender people equals that of the enslaved or newly freed African Americans in degree, but we are an oppressed group with little to hope for from the majority of this generation, and injustice should not be prolonged for the benefit of the feelings of a majority.

Read Part One      Read Part Three

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¹ I could not find a perfect place to insert this gem, but I couldn’t bring myself to leave it out (this may be my only humorous footnote, and I couldn’t pass it up). I do not think the humor was lost on SCOTUS either as they commented on this twice in their own footnotes to Loving. The one exception to the ban on whites intermarrying with any other ethnicity in Virginia included the allowance for marriages between whites and individuals who were less than one-sixteenth “‘of the blood of the American Indian.’” And as SCOTUS noted, this exception “is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by ‘the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas.’”

² While federal benefits and regulations exist for married couples, before the passage of DOMA in 1996, the federal government deferred to the states in determining marital status. Now the federal government ignores states that do offer marriage rights to same sex couples. Also as with the current marriage debate, this issue of federal vs. state jurisdiction of marriage inspired three attempts at constitutional amendments to ban marriage for interracial couples (1871, 1912, and 1928).

³ The fact that all thirteen colonies criminalized sodomy at the time of the ratification of the Constitution has similarly fueled arguments about the original intent of the Constitution in regard to LGBT+ people.

⁴ It is important to point out that, though you might disagree with SCOTUS when they espouse a “new” right or doctrine, their doing so is not inherently a sign of “activism” and is fully within the Constitutional framework. The Ninth Amendment explicitly states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

⁵ The defense in Loving asks SCOTUS to employ a double standard here. As I pointed out in reference to the Fourteenth Amendment, the defense enjoined the Court to hold to the proposed original intent of the framers. But even though the defense agreed, when pressed, that it was “unquestionably true” that the miscegenation statutes were enacted on the presumption of white supremacy, it asked the Court to ignore that point and proceeded to make an all too familiar assertion that even granting that point, purported social science that favored the defense’s position should be sufficient justification for the law’s continued enforcement:

Your Honor, I think it is clear that the motivation of the earlier statutes, if you — by motivation you undertake to analyze the feelings of the individual members of the legislature that were responsible for the adoption of the statutes, I think that is correct, but I do not see how that can affect the constitutional problem which is presented to this Court where an enactment of the general assembly of Virginia is on trial . . . . As a second proposition, even if it wasn’t beyond the scope of the Fourteenth Amendment and is subjected to due process and equal protection tests, it is a justifiable regulation in view of today’s evidence on the point.

⁶ The Court proceeded to quote Brown v. Board of Education:

[A]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments, and wished them to have the most limited effect.

⁷ The specific issue being discussed in context is marriage as a civil contract, but the substance of the matter is the equal right to contract, and it is in that light that I find this statement very telling.

⁸ Though the following has no bearing on the legal argument, I find it significant in the spirit of the matter that on the fortieth anniversary of the Supreme Court decision on Loving, Mildred Loving issued a statement including the following:

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 the 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 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.

⁹ I should point out the one technical difference between these cases: in Bowers, the Georgia law prohibiting sodomy applied to heterosexuals and homosexuals alike; in Lawrence, the Texas law applied only to homosexuals. However, in deciding Bowers, the majority took no notice of the breadth of the law and addressed their ruling at homosexual sodomy alone, a fact for which Justice Blackmun took the majority to task in his dissent. In deciding Lawrence, the Court deemed relevant the fact that the law applied exclusively to homosexuals only as an issue of equal protection, and only Justice O’Connor gave that argument attention in her concurring opinion.

¹⁰ Compare the following (what SCOTUS said in its ruling on Pace) with Scalia’s language:

Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.

¹¹ Scalia proceeds: “But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.” All Scalia has managed to say here is that on a plea of equal protection of the laws, the right to sexual relations and the right to marriage between members of the same sex rise and fall together. This is a statement with the veneer of a defense that only exists on the assumption (he does not even attempt to substantiate it) that no equal protection case for marriage exists. But that logic is circular, for if they are linked as Scalia has suggested, then an attack on one is an attack on the other; thus Scalia’s statement regarding marriage by his own logic cannot stand as a defense against an equal protection case for striking down sodomy laws. On the contrary, he has merely extended the argument against denying marriage rights to same-sex couples as well.

¹² Blackmun is here quoting a book (The Path of Law) written by Justic Holmes, not a Court opinion, but he supports the sentiment with a quotation from Roe v. Wade when he says that “the fact that the moral judgments expressed by statutes . . . may be ‘natural and familiar . . . ought not to conclude our judgment.’”

¹³ “Prohibitions against miscegenation date back to the earliest colonial times, and the first record of sanctions imposed for this act in the Virginia colony appears in Hening’s extract from the judicial proceedings of the Governor and Council of Virginia:

September 17th, 1630. Hugh Davis to be soundly whipped, before an assembly of negroes for abusing himself to the dishonor of God and shame of Christians, by defiling his body in lying with a negro; which fault he is to acknowledge next Sabbath day.”

Phillips IV, Cyrus E. “Miscegenation: the Courts and the Constitution,” William and Mary Law Review. Vol. 8. Issue 1. Article 7 (1966); 133.

¹⁴ I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

¹⁵ Even assuming Scalia’s position to be the correct one, he would only maintain that moral objections could sustain rational-basis review but not heightened scrutiny. In fact he makes quite an issue out of the level of scrutiny applied to this case, and arguably rightly so. I address this here mostly to stave off objections that I’m ignoring a substantive point. I intend to address this issue in the following post.