The federal district court in San Francisco heard closing arguments Wednesday in Perry v. Schwarzenegger, the lawsuit seeking to overturn California’s Proposition 8, which banned gay marriage in the state. Activists hope that federal courts will use this case to impose same-sex marriage nationwide.
No surprise so far. California voters soundly rejected same-sex marriage by approving Prop 8. Litigation is a preferred strategy for activists who can’t persuade voters to embrace controversial social changes.
But the logic used by some activists is disturbing. They routinely invoke specters from America’s past such as white supremacism and state-sponsored racism, and argue that supporting marriage as the union of husband and wife is somehow similar.
The race analogy often focuses on Loving v. Virginia. In this 1967 case, the U.S. Supreme Court struck down a Virginia statute that imposed criminal penalties for marriages between whites and those of other races.
Loving is a significant case in U.S. constitutional history. The nation’s highest court found that Virginia’s prohibition was “designed to maintain White Supremacy.” Such laws, the court concluded, are repugnant to the principles of racial equality embedded in our Constitution.
Those fighting for same-sex marriage often quote a passage from Loving that asserts marriage is one of the “basic civil rights of man.” This passage is from the second part of the opinion, which explained that, under constitutional concepts of liberty, the right to marry cannot be denied on “so unsupportable a basis” as “the racial classifications” embodied in Virginia’s racial integrity law.
But proponents of same-sex marriage don’t always provide the entire quotation. In the same passage, the court explains that marriage is “fundamental to our very existence and survival” — and that the freedom to marry is essential to the “orderly” pursuit of happiness.
Marriage is not fundamental to our “existence” and “survival” merely because it sometimes is marked by expressions of love, commitment, and respect. Marriage is fundamental to our existence and survival because it remains society’s best and most effective way of ordering sexual relations between men and women, encouraging procreation, and increasing the odds that a child will have the influence and support of both a mother and a father.
Activists draw another parallel as well: The Virginia case wasn’t a popular decision in its day. Public opposition to gay marriage shouldn’t prevent the court from mandating it, either, they claim. However, whatever public support once might have existed for racial-integrity laws, it was in sharp tension with the more fundamental American commitment to overcoming racial injustice. Laws penalizing interracial unions arose as an incident to slavery and were the product of a shameful history. The nation emphatically repudiated that history through various measures, including adoption of the 14th Amendment to the Constitution.
The same can’t be said about marriage. If imposed through federal courts, same-sex marriage would fly in the face not only of popular will but also longstanding traditions and nearly universal understandings of marriage.
Thirty states have amended their constitutions specifically to protect marriage as the union of husband and wife. Nearly 40 states have passed legislation with the same purpose. Though a few jurisdictions have instituted same-sex marriage, passage of measures such as Proposition 8 in California and the “people’s veto” last year in Maine demonstrate that our national commitment to marriage remains deep and strong.
Most Americans, it seems, find it both possible and sensible to reject racism as wrong while affirming marriage as the union of husband and wife.
This is as it should be. Principles of racial equality reflect the understanding that, as the Declaration of Independence proclaims, all men are created equal and are endowed by their Creator with unalienable rights. The state can violate these individual rights, but can’t repeal them. Similarly, marriage involves a natural, pre-political social reality that, in its essence, the state recognizes but doesn’t create. Through laws regulating marriage, the state orders the institution to the common good.
Loving v. Virginia simply does not contain a hidden right to same-sex marriage. Just as Virginia’s racial-integrity law was about race, not marriage, Loving is about the unconstitutionality of racial classifications — not the articulation of a radical new understanding of marriage.
Defending marriage is not similar to defending racism. Loving didn’t fundamentally redefine the natural understanding of marriage. Rather, the 1967 decision rescued marriage from an extreme ideology that sought to hijack marriage for purposes unrelated to marriage itself. Today, the courts faced with Perry and similar litigation should do the same.
States are free to pass laws redefining marriage to include homosexual unions. But nothing in the 14th Amendment requires them to do so, and the courts should respect that.
– Thomas M. Messner, a graduate of Notre Dame Law School, is a visiting fellow in the DeVos Center for Religion and Civil Society at the Heritage Foundation.