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History of Same Sex Marriage Jurisprudence

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         The history of same sax marriage jurisprudence could be traced back to the African-American civil rights movement.
           Until June 12, 1967, in some American states it was illegal for African-American adults to marry white ones.  In, Loving v. Virginia. U.S. Supreme Court ruled (9 to 0) that anti-miscegenation laws are unconstitutional within the equal protection clause of the Fourteenth Amendment.  Chief Justice Warren said: "There can be no question that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. . . .Marriage is one of 'the basic civil rights of man,' fundamental to our very existence and survival. . . . 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 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." Civil unions for interracial marriages were never part of the equation.
        The Stonewall Riots in 1969 advanced gay rights, but the marriage issue was never part of the equation.  The GLBT movement simply wanted basic civil rights—All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin or sex as Provided by the civil right Act of 1964.  Again we followed the African American plight to civil rights.  As of today thirteen states had reformed their state civil rights code (or experienced court decisions) to include sexual orientation and gender identity, while another seven had amended their civil rights code to only include sexual orientation.  In thirty states it was still perfectly legal to fire you from your job, deny housing or public accommodation, and there were sodomy laws in twenty three states, so as you can guess, marriage was never a high priority to the GLBT movement until 2003.
        The LAWRENCE ET AL. v. TEXAS, Argued March 26, 2003—Decided June 26, 2003—with a single stroke legalized sodomy in all 50 states and territories. The majority chose the "due process/privacy" rational to over rule Bowers v. Hardwick. O'Connor chose the equal protection argument.  She may have chosen that argument, because it allows her to invalidate the Texas statue without overturning Bowers v. Hardwick (in which she voted with the majority). But the equal protection argument has fascinating implications; that government can pass no laws based on animus towards gay people that treat gay people differently than other people.  This has obvious implications for marriage, though O'Connor denies it.  The majority says that the equal protection argument is "tenable", if that counts as an endorsement, then there are 6 votes for treating gay people as entitled to equal protection under the Constitution.  It will make the inevitable marriage case fascinating. (Since all states have always recognized all Canadian marriages, it will only be a matter of time before one state says we honor all Canadian marriages, except yours, because you are gay.  In fact, it was Scalia’s dissent:
“…The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy."  A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race….This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner--for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage….This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest.  But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples.”
Scalia’s dissent flamed the marriage movement.  
        GLBT activist then analyzed state constitutions and the Massachusetts Supreme Court gave us the landmark decision to grant same sex marriages in 2003.
         Unfortunately, the Massachusetts victory created a backlash that helped re-elect Bush. The conservative right came out in droves to vote against the GLBT human rights and we were made the punching bag for the inadequate Bush presidency.  
Six months after gay and lesbian couples won the right to marry in Massachusetts, opponents of same-sex marriage struck back Tuesday, with voters in 11 states approving constitutional amendments codifying marriage as an exclusively heterosexual institution.
        Voters in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah all approved anti-same-sex marriage amendments by double-digit margins.
        Monday June 16, 2008 marked another historic step toward the full acceptance of gay and lesbian couples in America.  California became the second state to allow gay couples to marry, after Massachusetts did four years ago.
        It's wonderful for gays and lesbians to receive the rights, benefits, and responsibilities that come with marriage.  The New York Times on Sunday, though, reported that marriage has been a mixed bag for gay and lesbian couples in Massachusetts.  Some have found wedded bliss.  Some haven't.  Some argue over the in-laws, money, and when to start a family.
        In short, gay couples are pretty much like straight couples.  Or as the comedian Chris Rock once joked, "Gay people got a right to be as miserable as everybody else."
        Once the rest of America sees that gay marriage has not plunged California into the sea or caused the heavens to rain down hellfire, other states will move closer to acceptance.
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Travel website: The Pink Agenda. Several Blogs. Weekly newsletter, available upon request. Publications - Fiction: Borrowing Time: A Latino Sexual Odyssey - Floricanto Press 2003. Poetry: The Refined Savage Poetry Review - Refined Savage (more...)
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