Tag: Gay Marriage

Mixed Marriages

Posted by Ron Kauffman on

Today marks the 50th anniversary of Loving v. Virginia, the United States Supreme Court case that overturned anti-miscegenation laws nationwide. In the Loving case, a black woman and a white man had been sentenced to a year in a Virginia prison for marrying each other. Is the anniversary permitting mixed marriages still relevant?

As the New York Times reports on a similar couple in California, for their first date, in 1949, Leon Watson and Rosina Rodriquez headed to the movie theater. But each entered separately. First went Ms. Rodriquez, a fair-skinned woman. Mr. Watson, who is black, waited several minutes before going in and sitting next to her.

When they married in Oakland in 1950, mixed-race marriage had just become legal in California, the result of a lawsuit that reached the State Supreme Court. They are among the oldest living interracial couples legally married in the United States. It would be nearly two decades before all couples like them across the country were allowed to marry.

Florida Law

Although it seems strange these days, Florida outlawed marriages between a couple in which one of the couple is white and the other is black. While those laws are all unconstitutional and of no force, at the time, Florida was not the only southern state to do so.

Loving v. Virginia

In 1958, after receiving a marriage license in Washington, D.C., the Lovings returned home to Central Point, Va., where weeks later, police burst into their bedroom late one night to arrest them. That ultimately led to a legal battle against Virginia’s anti-miscegenation law that went all the way to the U.S. Supreme Court almost a decade later.

Same Sex Marriage

Why is Loving still relevant? In the Supreme Court’s decision in Loving, Chief Justice Earl Warren emphasized the central importance of the freedom to marry. He also spoke on the Fourteenth Amendment’s requirement that race not be the basis for excluding any couple from that freedom.

Fast-forward to 2013 when, in United States v. Windsor, the U.S. Supreme Court took the same approach in Loving, when it upheld New York’s authority to recognize same-sex marriage.

The Windsor Court ruled that, once married under New York law, a couple could not be denied federal benefits just because the two people in that marriage shared a gender identity.

Many connections have been drawn between same-sex marriage cases, and Loving, the 1967 ruling that legalized interracial marriage nationwide. For instance, both the mixed-marriage and same-sex marriage cases spoke of marriage as a “fundamental right.”

Also, in both cases people who argued against mixed-race and same-sex marriage raised the concerns about whether or not children were disadvantaged or harmed, and if the state or the country had a duty to protect children from that potential harm. Although it seems like an odd argument today, many opposed to same-sex marriages argued whether or not children who grow up with same-sex parents will be psychologically, emotionally, or socially harmed.

The New York Times article is here.

 

Gay Marriage after DOMA

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Monday, July 1, 2013.

In case you didn’t hear the news, the Supreme Court last week ruled that married same-sex couples were entitled to the same federal benefits as same-sex couples and, by declining to decide a case from California, effectively allowed same-sex marriages there.

The rulings leave in place laws banning same-sex marriage around the nation, and the court did not say there was a constitutional right to same-sex marriage.

So, the effects are probably limited to couples married in the 12 states (and California) that recognize gay marriage. But the number of states recognizing gay marriage is likely to grow.

The majority opinion did something unusual, it stated that laws based on “animus” against gays and lesbians are unconstitutional:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. …The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.

This is a different analysis when the Supreme Court strikes down discriminatory laws. Specifically, the Court did not recognize “homosexual relations” as a “fundamental right,” or homosexuals as a suspect class. If the Supreme Court had done that, the Windsor case would have been a “fifty-state solution”, mandating same-sex marriage in every state. But it didn’t.

In Windsor however, the Court used state marriage laws to identify an individual’s liberty interest that justifies subjecting a federal law to heightened scrutiny. This is not how the doctrine has been done in the past.

Because of the Court’s striking down DOMA this way, states are free to define marriage as they wish – subject to Equal Protection and Due Process clause restraints – and the fight over “gay marriage” will continue in the states for years, as other litigation winds its way back to the Court.

You can read more about the two gay marriage rulings in the New York Times here.