Posted on Apr 2, 2004 | by Michael Foust
EDITORS’ NOTE: This is the 17th story in a series examining the national debate over same-sex "marriage" and appears in Baptist Press every Friday This series will resume April 16.
Updated Nov. 30, 2004
NASHVILLE, Tenn. (BP)--In writing the controversial majority opinion last year striking down Massachusetts’ ban on same-sex “marriage,” state Chief Justice Margaret Marshall pointed to the history of interracial marriage laws.
Just as bans on interracial marriage were struck down in the 1960s, she argued, bans on same-sex “marriage” also must fall.
Such arguments anger many in the black community, including pastor William Shields of the 18,000-member Hopewell Missionary Baptist Church in Norcross, Ga.
“That’s apples and oranges,” he said. “It’s not the same.”
The comparison, though, is used frequently.
A lawyer for two homosexual men in Arizona has pointed to the bans on interracial marriage, noting that both the law and “the public’s point of view” changed. The men are seeking to overturn the state’s ban on same-sex “marriage.”
In a January USA Today commentary, journalist and author Gail Mathabane argued that “like interracial marriage, same-sex marriages are bound to become legal sooner or later.” The headline read: “Gays face same battle interracial couples fought.”
Marshall based part of her opinion on two court cases that ended interracial marriage bans. One was Perez v. Sharp, which was decided by the California Supreme Court in 1948 and ended interracial marriage bans in that state. The other was Loving v. Virginia, which was decided by the U.S. Supreme Court in 1967 and struck down the remainder of the nation’s interracial marriage bans.
“As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination,” Marshall wrote.
Lawyers in California reportedly are prepared to use the Perez case to overturn that state’s ban on same-sex “marriage.” Traditionalists, though, say that comparisons between same-sex “marriage” and interracial marriage defy both logic and legal precedent.
“It’s a very different thing for a child to say, ‘I have an Asian father and an American mother,’ than it is to say, ‘I have two moms or two dads,’” Focus on the Family’s Glenn Stanton told Baptist Press. “Knocking down bans on interracial marriage did not redefine marriage. It affirmed marriage by saying that any man has a right to marry any woman under the law. But what same-sex ‘marriage’ proponents seek to do is to radically redefine the very definition of marriage [and] to say it’s not about gender.
“Marriage is about bringing the genders together, not keeping the races apart.”
Shields, the Georgia pastor, was heavily involved in pushing state legislators to pass a marriage amendment that will go before voters this fall. Noting that he took part in civil rights protests years ago, Shields said the Bible clearly allows interracial marriage and opposes same-sex “marriage.”
“To connect this to civil rights, to the rights of an individual, is absolutely intolerable,” he said. “Being black is not a sin. I rest my case there.”
The Loving v. Virginia case involved a white man and a black woman who were married in the District of Columbia before moving to Virginia, where they were charged under the state’s interracial marriage ban and sentenced to a year in jail. But they sued the state, and in 1967 the Supreme Court found that so-called anti-miscegenation laws violated the 14th Amendment’s equal protection clause.
Teresa Stanton Collett, a law professor at the University of St. Thomas School of Law in Minnesota, said there are legal differences between the two.
“The interracial marriage ban was clearly built on a history of preserving the idea of racial purity and racial superiority of one race over another,” she told BP. “The requirement that a man and a woman be the applicants for a marriage license is not built on a history that men are superior to women or that women are superior to men.”
Instead, Collett said, the traditional definition of marriage is “built on the history” that when a man and a woman come together in marriage, they do something that is “unique throughout all human activities” -- creating new life.
“[A]nd in order to ensure that those two people who have created this new life continue to work together in protecting and nurturing that new life to responsible adulthood, we want them to commit [and] to stay together, for that time period,” she added.
Both Collett and Louisiana State University law professor Katherine Spaht testified before a Senate committee in March, arguing that the traditional definition of marriage is in jeopardy apart from a federal marriage amendment.
Spaht has since received written follow-up questions from Sen. Richard Durbin, D., Ill. One of the questions, she said, asks her if she would have supported a prohibition on interracial marriage. Durbin has been vocal in his opposition to a federal marriage amendment, Spaht vocal in her defense of traditional marriage.
Spaht said Durbin’s question ignores one of the fundamental purposes of marriage -- procreation.
“The fundamental understanding of marriage has always been, by definition, a man and a woman,” Spaht said. “... Never did Webster’s dictionary define the term marriage in terms of the races.”
There is an inherent difference between interracial marriage and same-sex “marriage” because homosexuals cannot procreate, Spaht said.
The Massachusetts court, though, rejected any ties between traditional marriage and procreation, saying that commitment between two people, and not child-bearing, was the underlying purpose of marriage. That assertion bothers Shields, the Georgia pastor.
“My position is on the Word of God regarding the foundation of creation, the building block for the country, for the world, for my church,” he said. “That is marriage -- a man and woman. And that’s what I’m standing on.”
While on the campaign trail Democratic presidential candidate John Kerry has pointed to the 14th Amendment’s equal protection clause, saying it guarantees giving same-sex couples the legal benefits of marriage.
Collett, though, said the history of the equal protection clause has nothing to do with same-sex “marriage.” It was passed in 1868 following the Civil War to protect the rights of blacks and former slaves.
Collett notes that when the Supreme Court issued its Lawrence v. Texas decision overturning anti-sodomy laws, justices were careful not to base their decision on equal protection, perhaps to “avoid immediately raising the marriage question,” she said.
“Instead, they grounded it in a liberty interest -- the right to engage in private, intimate sexual conduct rather than the right of people to choose same-sex partners [instead of] opposite-sex partners, which was one of the arguments that was made by the plaintiffs in Lawrence vs. Texas,” she said.
But Collett is not confident the Supreme Court will stay out of the same-sex “marriage” issue. Legal experts are split as to whether the high court will one day use the Constitution’s full faith and credit clause to force all states to recognize the same-sex “marriages” of another state, such as Massachusetts. Opponents of a federal marriage amendment note that the clause was never used in the mid-20th century to force a state to recognize another state’s interracial marriages.
“I think the historical record may not be an accurate guide to the future, because it was less than 20 years ago when Bowers vs. Hardwick was the law of the land,” she said, referring to the court decision that upheld anti-sodomy laws.
“And yet we now have Lawrence vs. Texas, which overturned Bowers. So the court has increasingly involved itself in matters that have traditionally been within the state’s rights to regulate public health, safety and morals.”
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