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A couple of days ago I posted about the death of Mildred Loving, the woman involved in Loving v. Virginia, the 1967 Supreme Court case on interracial marriage. I noted there that gays should honor her passing given the importance of that case in any future argument for gay marriage.

It turns out that Loving supported same-sex marriage, a fact not disclosed in the media obituaries (hat tip to Crooks & Liars). In a letter last year, she wrote:

Loving for All

By Mildred Loving

Prepared for Delivery on June 12, 2007,
The 40th Anniversary of the Loving vs. Virginia Announcement

When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.

We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed.

The state prosecuted Richard and me, and after we were found guilty, the judge declared: “”Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.

Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Mildred Loving has died, and gay people everywhere should mourn her passing.

Why should they do so? Because when the day comes that gays and lesbians argue their case for gay marriage before the Supreme Court (as that day must someday come), Mildred Loving will speak out from the dead on their behalf.

Mildred Loving was a black woman in Virginia who fell in love with a white man. They wanted to marry, but fell afoul of Virginia’s anti-miscegenation (interracial marriage) statute. They filed a lawsuit claiming a violation of their constitutional rights that found its way to the Supreme Court in 1967. The result striking down the statute was announced in Loving v. Virginia, arguably one of the most important Supreme Court cases of all time.

Chief Justice Warren delivered the Opinion of the Court, and said the following words, profound in their implications:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). 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. (emphasis added)

The Court affirmed that marriage is a fundamental right that may not be abridged by the state absent the showing of a compelling state interest (a standard that is very difficult to meet.) These words in Loving v. Virginia are the best weapon that gays and lesbians have for persuading the Supreme Court that the fundamental right of marriage should be extended not only to members of different races, but also to those wishing to enter a same-sex marriage. In both cases, the state is preventing an individual from marrying the consenting adult partner of his choice.

So as we go about our business today, let us all honor the memory of this brave woman who will be forever remembered as part of the civil rights tradition in this nation.

Gay activists have much to rejoice over for the New Jersey Supreme Court’s decision in Lewis v. Harris extending the right of marriage to same-sex couples–it is a good step forward in the battle for marriage equality. However, there are some aspects of the decision that I find disturbing.

The essence of the decision was essentially this: while same-sex marriage is not a fundamental right, prohibiting it runs afoul of the Equal Protection clause in New Jersey’s constitution. As such, while same-sex couples should have the right to the benefits of marriage, they do not have an accompanying right to have those benefits called “marriage.” The legislature was therefore directed within 180 days to either include same-sex couples in its marriage statutes, or draft a duplicate set of guidelines that provides the same rights as marriage but calls it by another name (e.g., “civil unions.”)

My first concern is on the issue of same-sex marriage not being a fundamental right. A fundamental right is one that is deeply rooted in history and traditions. Marriage itself is universally considered to meet that test. However, the New Jersey Court ruled that while marriage may meet that test, same-sex marriage does not and therefore cannot be considered a fundamental right.

That’s putting too fine a point on it. Why not simply focus on the issue of marriage itself? Same-sex marriage is nothing but one type of marriage, and it’s the issue of marriage itself that ought to have been addressed. An analogy lies in Loving v. Virginia, the US Supreme Court case that struck down bans on interracial marriage. In that case, the Supreme Court could have said “well, marriage meets the fundamental right test, but inter-racial marriage does not and therefore it should not be considered the same.” That’s not what the Court did in that case. Instead, it re-affirmed that marriage itself was the issue, that it is a fundamental right, and that inter-racial marriage was simply a form of the protected right itself. It wasn’t something separate or different. I don’t see why the same logic doesn’t apply on the issue of same-sex marriage.

While this may sound like a nitpick, it’s actually very important. Once a right is found to be fundamental it is extremely difficult for the government to impinge on it in any way–it may do so only to meet a compelling state interest in a way that’s narrowly tailored to meet that interest. That’s a really hard standard to meet…as opposed to the much squishier standard applied under equal protection logic, which in New Jersey meant simply a balancing of the importance of the right versus the need for governmental restriction (a test the court said New Jersey failed to meet in opposing same-sex marriage). While the end result is the same, my belief is that the declaration of a fundamental right would have been a much stronger statement for future courts in other places to weigh when deciding what to do.

The second concern I have is the willingness of the court to send the matter to the legislature, even if it’s with a directive to craft some kind of equal marriage rights. This smacks of the whole “let the legislature decide the issue” argument that conservatives often put forward, knowing fully well that when any proposed minority right is presented to a majority that it is likely to strike it down. Rights are all about protecting minorities against the predations of majorities. It would have been unconscionable to “leave it to the legislature” to decide whether segregation was right or not, whether interracial marriage was right or not, whether “one-person-one-vote” was really in place or not, and so on. The “leave it to the legislature” argument is one that conservatives use to adopt a false veneer of tolerance when they are fully aware and approve of the final outcome. Same goes for the protest about “activist judges”–the justices who decided Brown v. Board of Education would surely have been called “activist” by any measure, and yet today we could not fathom their having decided the case any differently. There would be no social progress without these so-called “activist judges”, who are really judges brave enough to think outside the box–and yet they cause consternation to conservatives because they’d really rather “leave it to the legislature.” In ruling as it did, the New Jersey court seemed to kowtow to some of this logic by giving the legislature some element of choice over something that, as I argued before, should be a fundamental right not subject to a vote

My last concern is with the court’s willingness to let the legislature adopt a “separate but equal” system of marital-type benefits and then call it something other than marriage. If something smells, looks, and acts like a rose then it should be called a rose instead of catering to people’s “sensitivities” about it, which is what the unstated purpose of this provision seems to be. History has shown that “separate but equal” is never equal.

Overall, I give kudos to the court for its bravery in the current political climate, although it would have been better if the court’s language in defense of marriage equality had been stronger. One victory at a time…