In his dissent to Obergefell v. Hodges – the case to expand the franchise of marriage to same-sex couples – Chief Justice John Roberts asked “Just who do you think we are?” Calling the majority’s decision “an act of will, not legal judgment.”
“It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples,” he said. “It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes under the law.” – Chief Justice John Roberts
Based on his words, using his logic, the Chief Justice — along with his colleagues Alito, Thomas and Scalia – would not have dared to have intervened in Loving v. Virginia – the case that ended anti-miscegenation laws in the U.S. Roberts went on to say “The people of a state are free to expand marriage to include same-sex couples, or to retain the historic definition,” and that the court’s decision to legalize same-sex marriage was “stealing this issue from the people.”
The simple application of his “logic” would have left the question of interracial marriage in the hands of the voters – or more specifically, in the hands of individual state voters.
In 1966, the year I was born, nearly one third of the country had laws – actively enforced – preventing interracial marriage. In the case of Loving, Richard and Mildred were married in Washington DC in 1958. However, they were Virginia residents – when they moved back to their home state, their marriage was not only not recognized, it was deemed illegal. It took 9 years for their case to wind its way through the lower courts before the Supreme Court ruling struck down the ban in Virginia and the remaining states.
Surely, popular opinion must have been on the forefront, guiding the court in reaching its decision. After all, Roberts indicates that the court should not steal such an issue from the people. What was “the mood of the people” with regard to interracial marriage?
As a nation, we didn’t even hit the majority of approval until 1996ish – nearly 30 years after Loving!!! At the time, only a scant one out of five people supported mixed-race marriages. Approval continues to rise; however, 13% of Americans continue to disapprove of interracial marriages – how are they characterized today? Narrow-minded? Bigots? Simpletons? Or do we just tend to ignore them altogether as people that time forgot?
Too often, we view history through a prism of something happened, then everything changed and we moved on. The Civil Rights movement effectively ended when Martin Luther King was assassinated. The fight over interracial marriage ended on 12 June 1967 with the Warren court’s unanimous decision to wipe out anti-miscegenation laws.
Sadly, there was was no internet around in 1967 – I searched as best I could for reactionary quotes to the Warren decision. At best, we can see reflections of dissent and rebellion to the court’s decision. Two and one half years after Loving, Alabama continued to fight its cause in preventing blacks and whites from marrying one another.
Indeed, in the wake of Loving, states attempted to pass laws continuing the practice of racial purity marriages. The matter was hardly resolved in one day based on the supreme court’s ruling. In fact, Alabama did not formally amend its constitution until 2000, ending anti-miscegenation law (if not practice).
It comes as little surprise that the same areas and the same people that fought tooth and nail against interracial marriage are again at the forefront of the expansion of the franchise. Only this time, the numbers are not in their favor. Unlike the public’s attitude to interracial marriage, public opinion on marriage equality is overwhelmingly in favor of same sex marriage.
Despite the moaning and lamentations of those that see this as the “darkest day in American history,” (Thanks Ted Cruz…) this day was inevitable once the first same sex couple was married in Massachusetts in 2003. Rights cannot be selectively granted for one group while denied to another. Likewise, marriages that were legally performed in states that previously permitted marriage equality could not not be recognized by states selectively banning marriages.
Now the battle will take a turn. Already evangelical marriage equality opponents are reframing the argument around religious freedom, attempting to make the case that discrimination should be condoned by the government based on religious views. I can hardly think of a more convincing reason for congregants of such bigoted efforts to continue to abandon their religious views. According to the latest Pew Religious Landscape study, more Americans identify with no religion than ever before. The millennial generation accounting for the highest percentage across the board. It’s the equivalent of cutting off the nose to spite the face.
What’s worse, these evangelical bigots – touting their love for Jesus – give the millions of marriage equality supporting-Christians a black eye. This reaction to the Supreme Court’s ruling has nothing to do with Christianity, other than the cloak they use to disguise their homophobia, hate, and/or latent homosexuality and self-loathing. They should be called out on it at every opportunity.
My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.
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. – Mildred Loving