Marriage Equality

I support marriage equality. Not because, like Kinky Friedman, I want my gay friends to be as miserable as my straight, married friends. I am happily married and wish the same joy for everyone.

As Hannah Arendt wrote, "Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to 'life, liberty and the pursuit of happiness' proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs."

When she wrote Reflections on Little Rock in 1958, Arendt was protesting the injustice of laws against interracial marriage but the same words could be heard as support for gay marriage today.

It's a State Thing
Every state is allowed to decide what constitutes a valid marriage in that state. Until 1967, states could, and often did, ban interracial marriages. In 1776, seven of the original thirteen colonies outlawed interracial marriage.

Laws have come and gone (and come again) since then. For instance, some southern states legalized interracial marriage during Reconstruction and others did not enforce their bans. But in the 1870s, the laws came back, stronger than ever. Between 1913 and 1948, 30 states enforced anti-miscegenation laws. Only Connecticut, New Hampshire, New York, New Jersey, Vermont, Wisconsin, Minnesota, Alaska, Hawaii, and the D.C. never enacted them.

In 1948, the California Supreme Court ruled that the state's anti-miscegenation statute was unconstitutional (Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (Cal. 1948)). Following that decision, many states repealed or had their laws overturned in the 1950s. But even then, a 1958 Gallup poll showed that 96 percent of white Americans disapproved of interracial marriage and most southern states prohibited it.

State v. State
Each to its own right? Let the liberal states have crazy orgies and the conservative states keep their backward laws.  However, a state can refuse to recognize a marriage if the marriage violates a strong public policy of the state, even if the marriage was legal in the state where it was performed. States historically use this "public policy exception" to refuse to recognize out-of-state polygamous marriages, underage marriages, and incestuous marriages.

In June 1958, Mildred Jeter and Richard Loving married in Washington, D.C. When they returned home to Central Point, Virginia, police raided their home at night, hoping to catch them having sex. which was a crime. Of course, since they were already married, they weren't having sex. Unfortunately, being married was also a crime: a felony under Virginia's Racial Integrity Act. They were found guilty but their prison sentence was suspended, providing they leave Virginia for 25 years. They appealed and, almost ten years later, reached the U.S. Supreme Court.

Loving v. Virginia, 388 U.S. 1 (1967), found that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment and was, therefore, unconstitutional. Although the decision meant no state's anti-miscegenation laws would be enforced, many stayed on the books. South Carolina's and Alabama's state constitutions still retained miscegenation language until 1998 and 2000, respectively.

In 2007, Mildred Loving said, "I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry... I am still 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."

Until the Loving decision, my marriage to an Asian American would have been illegal in 17 states. Although many in both our families may have been unhappy about our decision, my mother-in-law had more reason to be understanding.

On Sept. 12. 1912, her mother Mae Watkins, a white Episcopalian from Ann Arbor, Michigan, married Tiam Franking, a student from Amoy, China.

The papers were full of headlines like "Ann Arbor Girl Weds Chinaman" and editorials proclaiming that foreign students should not be allowed on a campus with American girls because of "the fascination which the Orientals, wittingly or otherwise, exercise over the coeds. That same year Representative Seaborn Roddenbery (Democrat of Georgia) proposed an amendment to the U.S. Constitution to ban interracial marriage throughout the country.  Following Roddenbery's impassioned pleas for the preservation of the white race, many states tried to enact new anti-miscegenation laws, although only Wyoming succeeded in passing one.

In 1945, Mae and Tiam's daughter Cecile also married a Chinese immigrant, William Q. Wu. Although she was biracial, she was raised by white grandparents in a white community so her marriage to an Asian was still risque. Although their marriage was not illegal, they faced considerable prejudice throughout their lives.

My point, besides sharing these family pictures, is that marriage is an important institution, held close to the heart. It was the last bastion for racists and will probably be the last bastion for homophobes. Things are changing so fast that, between the time I write this and you read it, major decisions for or against marriage equality will be made. I don't know when we'll exit from this tunnel but we have come so far, we must continue to move forward.

This, too, shall pass.