Bans On Interracial Marriages

[sbk]

From the NY Times, offers a very interesting Constitutional view on same sex marriages, and perhaps some food for thought for those opposed to them.

Bans on Interracial Unions Offer Perspective on Gay Ones

By ADAM LIPTAK

Published: March 17, 2004

ithout a constitutional amendment banning gay marriages, President Bush warned on Feb. 24, there is a grave risk that "every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage."

The president invoked the Constitution's "full faith and credit" clause, which requires states to honor court judgments from other states, as the basis for his alarm.

But legal scholars say that an examination of the last wrenching national debate over the definition of marriage — when, only 50 years ago, a majority of states banned interracial marriages — demonstrates that the president misunderstood the legal terrain.

"No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to," said Andrew Koppelman, a law professor at Northwestern University and the author of "The Gay Rights Question in Contemporary American Law."

Indeed, until the Supreme Court struck down all laws banning interracial marriage in 1967, the nation lived with a patchwork of laws on the question. Those states that found interracial marriages offensive to their public policies were not required to recognize such marriages performed elsewhere, though sometimes they did, but as a matter of choice rather than constitutional compulsion. That experience is instructive, legal scholars say, about what is likely to happen when Massachusetts starts performing gay marriages in May.

Attorney General Eliot L. Spitzer of New York has provided an example of what the analogous patchwork in the gay marriage context might look like. Mr. Spitzer, in an informal advisory opinion issued on March 3, said he expected New York to recognize gay marriages from other states because they are not "abhorrent to New York's public policy." Thirty-eight other states, on the other hand, in enacting Defense of Marriage Acts, have expressed the view that such marriages do offend their public policies.

Mr. Spitzer based his assessment on state law and not the federal Constitution, and he based his description of New York's public policy on a single decision of a Manhattan trial court last year that is still under appeal.

There is a second reason same-sex marriages in Massachusetts are likely to have a more limited effect than the president suggested. An obscure 1913 law in that state makes void all marriages performed there where the couple is not eligible to be married in their home state. That law, too, was born in part from an effort to prohibit interracial marriages.

Last week, the California Supreme Court stopped the gay marriages being performed in the second place cited by the president. The court will hear arguments on the question later this year.

In 1967, when the United States Supreme Court struck down all bans on interracial marriage, it acted on the most fundamental constitutional grounds, saying that the laws violated both due process and equal protection.

No one believes that the court is likely to say anything like that about gay unions anytime soon.

What is notable about the 1967 decision for the gay marriage debate, then, is that it did not mention the full faith and credit clause. Although the case involved a Virginia couple prosecuted for violating that state's ban on interracial marriage by visiting the District of Columbia, which allowed such marriages, the Supreme Court did not suggest that Virginia was obligated to recognize the marriage.

To the contrary, the decision affirmed that marriages are generally a matter to be left to the individual states. That is consistent with hundreds of decisions over centuries, based on state rather than federal law, that allowed states to decline to recognize marriages that violated their own strong public policies.

Indeed, in the context of interracial marriages, courts in states that banned such unions routinely declined to recognize those performed in states where they were legal.

But the decisions were not uniform. Indeed, the way courts treated interracial marriages illuminates how gay marriages are likely to be treated.

The decisions fall into broad categories, generally turning on whether the couple in question intended to evade their home state's laws. That principle, legal experts say, is likely to govern many disputes about gay marriages performed in Massachusetts.

"The Jim Crow judges were horrifyingly wrong about many things," Professor Koppelman wrote in the Texas Law Review in 1998, "but they did understand the problem of moral pluralism in a federal system, and we can learn something important from the solutions they devised."

Opposition to interracial marriage in the last century was in many ways more vehement than opposition to gay marriage today. It was, for instance, a criminal offense in many states. None of the 38 states that expressly forbid gay marriage by statute today go that far.

Yet in cases where evasion was not at issue, courts were often surprisingly receptive to the recognition of interracial marriages.

In some cases, an interracial couple who were legally married in their home state moved, after years of living together, to a state where such marriages were banned. Court decisions about whether to recognize such marriages were about evenly divided.

In other cases, such a couple never left the state where they were legally married but sought to use the courts in a state where their marriage was theoretically invalid in an injury, property or inheritance case where something turned on their marital status. In such cases, the courts very often recognized the marriage.

William Rubenstein, a law professor at the University of California, Los Angeles, said a theme ran through the cases.

"The less you look like you're playing games," Professor Rubenstein said, "the more likely a court is to recognize the relationship."

The entire discussion may be academic in the case of Massachusetts, given its 1913 law.

Linda Hutchenrider, president of the Massachusetts Town Clerks Association, said her group was awaiting legal guidance on the meaning of the law and how to enforce it.

"We're not the marriage police," Ms. Hutchenrider said.

But the law would seem, she continued, to void marriages of out-of state gay couples. "It really seems to fit," she said.

She added that Mr. Spitzer seemed to have overlooked the Massachusetts law, which appears not to allow New York couples to be married there in the first place.

"It becomes a chicken and the egg thing," Ms. Hutchenrider said.

Matt Coles, director of the American Civil Liberty Union's Lesbian, Gay Rights and AIDS Project, said he was reluctant to compare the gay rights movement to the civil rights movement.

"One struggle has never been like another, in overriding ways," Mr. Coles said. "That said, interracial marriage draws a more powerful analogy than any other."

[Jeepz]

sbk~

A good report, thanks for posting it. Historical perspective is useful in terms of precedents for legal decisions. Bush is off the mark on this one, in my humble opinion. But like many Christians (and other religious zealots) he wants to make sure that you run your life according to his principles.

If on of the Bush girls was homosexual, it might just give George W a bit better perspective on the whole matter.

Jeepz

[britmaveric]

Ahh Bush Twins-Lesbians! Hmmmmmm Hmmmmm Now thats a thought!

To be honest "Civil Unions" are more to my liking for same sex individuals, and I'm far from religious. The reasoning is you open the flood gates to all other nutters when you head down the road of "marriage". Why couldn't a man have two wifes? Why couldn't brother and sister marry? I know it seems silly, but this is the type of challenges that come next.

From my understanding civil unions give pretty much the same benefits as a "married" couple?

On the flip side why should gays be excluded from the Pain of Marriage???

[Jeepz]

britmaveric~

You may have missed the discussion mrmnp and I had about "civil unions" versus marriage in another thread. We pretty much ended up agreeing that the only aspect a secular government should deal in is "civil unions".

Marriage is fundamentally a religious ceremony. Some religions don't allow you to "marry" outside the faith, don't acknowledge a civil divorce, and so on. The state (govenment), however, can define those unions as it chooses, limited only by the current law and, ultimately, the will of the people.

In the eyes of the state, all unions, heterosexual and homosexual, should be viewed as "civil unions" since the legal benefits are civil in nature. If the individuals wish a religious ceremony, in order to accrue spiritual benefit, that is fine and they should obey the rules of their church. But as far the state is concerned, the union is a civil one.

Ultimately, religious ceremony or civil, it is still the same catagory of activity, a civil union. The contract entered into by two people is not fundamentally changed regardless of the sexes involved.

No one, not even the state, can or should attempt to force people to "believe" that a homosexual union is identical to a heterosexual union in terms of their religion. But it can legally force people to treat them equally, just as it has for discrimination because of race, country of origin, and so forth.

Jeepz

[dutch]

I believe (if I am not wrong) that in Holland the gay marriage is legalized.

The discussion about this was not about religion (you always will have people to bring this up) but more about legal issus like;heritage-health insurance-pension-adoption.

The start of this was a legal proces, in which a one partner of a gay couple (together for almost 40 years) was denied the heritage of his partner. The family of the dead partner took it all ,supported by the law. That law has changed now.

[Thaiquila]

Fifty years from now, do people think gay marriage (or at least gay civil unions with full legal rights) will be commonplace in Europe, America, and even Thailand?

I think they will be if there is still a civilized world. So what are we waiting for? The people of the future will think we were very stupid, and very bigotted.

[Jeepz]

Thaiquila~

Regardless of what we do or don't, fifty years from now they will consider us backward, likely bigoted, and irredeemably stupid. Actually you don't have to wait fifty years. Just turn forty or fifty and talk to a few teenagers.

Jeepz

[dr_Pat_Pong]

Thaiquila~

Regardless of what we do or don't, fifty years from now they will consider us backward, likely bigoted, and irredeemably stupid. Actually you don't have to wait fifty years. Just turn forty or fifty and talk to a few teenagers.

Jeepz

Evolution is probably an explanation, as well as political will being influenced from time to time, The politics are always influenced by public opinion.

[the gentleman]

I think how the world is evolving i.e. marriage break ups, gay marriages, sex changes, bi sexuality, gender changes, interacial marriages etc etc - in how many years?, we will all look the same - a sexual?. In the beginning of evolution, we fought to survive/breed, now we have gone past that, we are evolving into equal genders, which equates to non reliance of other genders.

With that said, there will be no sex and you will be able to pick up your Pamela Anderson child clone at 7/11, while you are buying, your space fuel.

[dr_Pat_Pong]

I think how the world is evolving i.e. marriage break ups, gay marriages, sex changes, bi sexuality, gender changes, interacial marriages etc etc - in how many years?, we will all look the same - a sexual?. In the beginning of evolution, we fought to survive/breed, now we have gone past that, we are evolving into equal genders, which equates to non reliance of other genders.

With that said, there will be no sex and you will be able to pick up your Pamela Anderson child clone at 7/11, while you are buying, your space fuel.

It won't feel as good Gentleman

[the gentleman]

[tuky]

How do the kids of a same sex partnership/marriage grow up and fit into the society we know today?

Do any of you guys have kids whilst living in a same sex marriage?

really interested (not as a flame debate, so flamers p1ss off).

I do not believe in evolution.

[tuky]

I do not believe in evolution.

in a darwinist kind of way that is...

[et33.com]

i am straight

and i am free in thoughts

i have no judgement

and who can say

what is right or wrong

as far as i can see

if people want to get married

even gays and lesbains

it's okay

it's better than making war

it's time to have

more love in this world

who cares what kind of love

as long as it's not war

BUSH should go on trial

for the lies on WMD

the fact that he is still running the country

means the american people are becoming more stupid than ever

[Jeepz]

et33.com~

Bearpit was closed here and moved offsite.

<content removed by Jeepz to save admin's the trouble>

Jeepz

[Boon Mee]

How do the kids of a same sex partnership/marriage grow up and fit into the society we know today?

Do any of you guys have kids whilst living in a same sex marriage?

really interested (not as a flame debate, so flamers p1ss off).

I do not believe in evolution.

Although it's been said before, I believe in Adam & Eve, not Adam & Steve. Not a lot of reproductive capacity from the latter...

[Thaiquila]

Booner,

your tired bigoted cliched quote might mean something in this debate IF reproductive capacity was a requisite for heterosexual marriage. It is not anywhere in the world that I know of. For example, sterile man marries menopausal woman. No problema.

Hey, how about Madame and Eve?

[Boon Mee]

Booner,

your tired bigoted cliched quote might mean something in this debate IF reproductive capacity was a requisite for heterosexual marriage. It is not anywhere in the world that I know of. For example, sterile man marries menopausal woman. No problema.

Hey, how about Madame and Eve?

Hey!...Whatever blows your dress up!

Didn't mean to step on any toes with my "tired, bigoted" cliche, Taiquila. That was my first post in this area of Thaivisa and it's all that came to mind at the time - but I'm sticking with it!

Madame & Eve...hmmm, haven't heard that one before. Doesn't quite have the ring to it like Adam & Steve

[mrmnp]

Tukyleith: Your last post in this thread desereves a reasonable answer, not drivel one liners.

While I have no personal experience regarding children of same-sex couples, it has been discussed at length in this forum by experienced same-sex parents who report that if children are given love, support and a steady hand they grow up as well adjusted as any others.

I suspect that there are some challenges at PTA meetings, but many straight parents have problems with the PTA as well. One of my most degrading memories of childhood was my mother,s druken performance at a PTA meeting and she sure wasn't "gay".

With 50% of straight marriages ending in divorce, the vast number of single parent households in the world and the numerous abusive parents raising children, the sexual orientation of two parents is way down on the list of priorities of children growing up in todays world, I suspect.