May 23, 2012

Loving v. Virginia: Thoughts on Gay Marriage

In June 1958, Mildred Jeter, a black woman, married Richard Loving, a white man. Although the newlyweds were residents of Virginia, they married in the District of Columbia because Virginia had a criminal statute that prohibited interracial marriages between a white person and a person of color in addition to a statutory provision that rendered all such marriages void under the law. Upon their return to Virginia, the Lovings received a grand jury indictment to which they pleaded guilty and were each sentenced to one year in prison. Their sentences were stayed upon the condition that they left the state of Virginia, never to return. The Lovings moved to the District of Columbia, and in 1963, they filed a motion to vacate the trial court judgment and to set aside the sentences under the Fourteenth Amendment.The Virginia Supreme Court upheld the constitutionality of the antimiscegenation statutes and upheld the convictions. The Lovings appealed to the U.S. Supreme Court, which forever changed history when it held as follows: “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 the 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.”Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 1824, 18 L. Ed. 2d 1010 (1967) (Internal citations omitted). As of February 2012, same- sex marriage is legal in only six states and the District of Columbia (as well as the Coquille Suquamish Indian Tribes). Advocates agree that there is no meaningful distinction between race discrimination and discrimination based on sexual orientation. In 1996, then-President William Jefferson Clinton signed the Defense of Marriage Act (DOMA) which states in pertinent part that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”Individuals grappling with the issue are trying to deal with two opposing positions, both supported by the fundamental principles embodied in our Constitution and the Bill of Rights. On the one hand, the religious freedoms that are foundational to many of the rights we take for granted allow each of us to adopt and manifest the teachings of any one of several mainstream or marginal religious groups, among them beliefs compatible with DOMA. On the other hand, many others believe that the arguments in favor of same-sex marriage are overwhelming, and it is impermissibly discriminatory to allow religious dogma to deny legal rights that our Supreme Court has already held are “fundamental.” Both sides appear to seek to impose specific religious tenets on all Americans in violation of an individual’s rights to reject them.Allowing same sex marriage does nothing to undermine or diminish the value or sanctity of marriage between heterosexual couples. To the contrary, establishing and promoting family bonds helps society. Marriage is an institution that is not only a fundamental freedom on a personal level, but also a societal institution that helps to strengthen communities by providing in-home caregivers to the infirm, establishing family units to share financial obligations and income, and creating two-parent households to support children. These benefits to society are not dependent upon sexual orientation.In addition, the legalization of same sex marriage would provide an economic boost to the economy. In 2004, astudy(.pdf) conducted by the Congressional Budget Office found that if all 50 states and the federal government extended the rights and obligations of marriage to same-sex couples, gay weddings alone would generate almost $1 billion in revenue each year.A2011 Gallup pollsuggests that 25% of Americans are gay or lesbian. For the same reasons that the Supreme Court in 1967 struck down anti-miscegenation laws, it is possible that states religious dogma and bigotry will not be allowed to deprive 25% of Americans of a fundamental freedom.

News and Insights

May 20, 2024

Kimberly Cook Returns to Schiller DuCanto & Fleck To Further Expand The Firm's Footprint in Alternative Dispute Resolution

Schiller, DuCanto & Fleck is excited to welcome home Kimberly A. Cook, who is ...
May 14, 2024

Adam Zebelian Reflects on LAGBAC and Its Role in Advancing LGBTQ+ Rights

Recently, partner Adam Zebelian (president of Chicago’s LGBTQ+ Bar Association), wrote an ...
May 09, 2024

Let's Talk Arbitration

On this episode of "Until Death Do Us Pod", Schiller Ducanto & Fleck senior partner ...

Looking for a firm that knows Family Law, inside and out? We're ready to listen.