Jordan Lance Final Paper

Law and Marriage (WC-1,560)

Marriage is defined in the dictionary as: “a. the social institution under which a man and woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc. b. a similar institution involving partners of the same gender: gay marriage” (dictionary.com). It says nothing about how a white and non-white person cannot get married, and it in fact defines gay marriage as marriage. Laws against interracial marriage and interracial intercourse existed and were enforced in the thirteen colonies (The Invisible College Press). The ban lasted until 1967 when the Supreme Court case Loving v. Virginia finally put a stop to it with a unanimous decision. While interracial marriage is now legal, same-sex marriage is still not legal in the vast majority of states. America’s historical ban on interracial marriage and the current ban on same-sex marriage create unnecessary prejudices in society’s construction of race, gender, and sexual orientation.

            Society viewed race as a trait that had to be “pure” due to the historical ban on interracial marriage. A child who was of mixed race could not be born to parents in a legal marriage and therefore all mixed children were bastard children and viewed as inferior. The parents were also viewed as sexually irresponsible which was also true if two unmarried white people had a bastard child. The difference was they could be “saved” by marriage and “saved” from the prejudices of society unlike a mixed couple. In the case Kirby v. Kirby, Joe Kirby wanted to get his marriage annulled so he did not have to pay spousal support to his wife who was a negro (Pascoe 46). He claimed that they should never have been able to marry in the first place, due to their racial difference and Arizona’s anti-miscegenation laws. Joe is put through questioning to make sure that he was not foreign and is of white descent, but his wife is not given the chance to prove her race as other than what is assumed. “A close look at such incidents as the Kirby case, however, suggests a rather different historical trajectory, one that recognizes that the legal system does more that just reflect social or scientific ideas about race; it also produces and reproduces them” (Pascoe 47). This idea of racial purity is constantly changing. It is up to the courts to interpret the laws and they did so in this case with extreme prejudice. Malicious ideas of an ideal can be spawned from justices and how they see certain laws. They would rather admit that they were wrong in allowing them to marry in the first place than potentially to have an interracial marriage exist. This historical prejudice has evolved into an issue about gender rather than race.

            The current ban on same-sex marriage violates the Equal Rights Amendment in the area of gender. In Singer v. Hara,

The Washington Appellate Court found marriage [to be] historically defined as ‘one man and one woman.’ Therefore it would be impossible to issue a marriage license to a same-sex couple, because they could not fit the definition. It would be akin to going to the DMV and trying to get a car registration for your bicycle. You can't do it because a bike isn't a car.

(The Invisible College Press).

The definition of gay marriage is in the dictionary, thus such marriages do exist and what the appellants propose is actually a marriage. The government is denying a fundamental right.

The court says that they are using the equal application theory when they deny marriage licenses to same-sex couples because they deny them to two men just as equally as they deny them to two women (Baehr v. Lewin). While this may be true, the fact that if one of the partners is of a different sex then the license would be freely granted is a blatant discrimination based upon gender. One cannot pick and choose what is to be applied evenly in the Equal Protection Clause in the Fourteenth Amendment. Under this amendment, no discrimination based on gender is legal. The equal protection clause was used to overturn anti-miscegenation laws in Loving v. Virginia and is now being interpreted to apply to the gay-marriage ban. Excerpts such as “all men created equal” and “equal protection of the laws” are commonly argued among gay supporters. As a result of the ban on same-sex marriage,  sexual orientation is discriminated against in a similar way.

            The ban on same-sex marriage creates discrimination against certain sexual orientations and states make enormous efforts to keep it that way. In “Baehr vs. Lewin which said that if marriage is not statutorily defined as being only between one man and one woman, then the State must show a compelling reason for denying the right (aka strict scrutiny).” Most states have modified their individual constitutions by 2006 with their own definitions of marriage to be able to make decisions from a rational basis which requires the least amount of reasoning behind a judicial decision (The Invisible College Press). Marriage was not defined as just between a man and a woman before Baehr v. Lewin, but states went ahead to go change their constitutions so gay marriage cases would be viewed under rational basis and therefore be allowed to use the tautological, or “talking in circles,” argument. This means states are making a physical effort to deny marriage
to gays and therefore persecute them solely based on the type of people they fall in love with.

The ban disallows homosexuals from the freedom of sexual orientation and to experience love as every heterosexual can.

             Exclusions and discriminations caused by an old interracial marriage ban and a current same-sex marriage ban are still prevalent today. People are so rooted in tradition that they forget what is morally right. Slavery was a traditional practice, but anyone who thinks that slavery should still be allowed today is laughed at. Thirty-one states had laws prohibiting interracial marriage before Loving v. Virginia (facinghistorycampus.org), but progress was made. People started realizing how ridiculous the laws were, which will happen with the same-sex marriage ban. Same-sex marriage is progressing toward being legalized in a majority of states. Massachusetts, Connecticut, Iowa, New Hampshire, and Vermont all grant licenses for gay marriage, and California is currently under appeal of proposition 8’s passing (Lecture: Buckmire 11/29/10).

 It is only a matter of time before others follow the gay movement which will soon be commonly accepted in society. Society will soon look at gay marriage as it does interracial marriage. It is considered inhumane to disallow an interracial marriage today, and soon gay marriages will get the same outlook. Voters are swayed by popular opinion, and the opinion is progressing toward the equal, non-discriminatory side. Progress is the essential key to achieving equality, but weak counter arguments also help.

            The counter arguments for allowing same-sex marriage are unsubstantial. The government says it will cost them too much money for marriage benefits and social security (about.com). The percentage of the population that is homosexual is less than six percent and not 100 percent will get married  Gay marriage will cost the states next to nothing (Lecture: Buckmire 11/4/10). Another reason is that marriage is for raising children (about.com).  There are plenty of children waiting to be adopted by loving parents who would not get adopted otherwise. The fact that a person is gay makes them no less of a person or parent. A third reason is that lifting the ban would destroy the sanctity of marriage. A bride on her wedding day is not going to feel less important because of a marriage of a couple down the street. Soon society will see how ignorant the governments arguments are and vote for gay marriage.

As Kamilla Versi says in her paper: "the current ban on same sex marriage speaks to the lengths of progress still yet to be made by our society." The United States has a long way to go to reach complete equality without discrimination, but on August 31^st, 2010, a surprising figure stepped up and took responsibility for his actions. Fidel Castro admitted he was wrong for persecuting gays (Blogspot.com). He said it was out of line to make them do tedious work. The United States could benefit from more action like this. It takes a bigger man to admit he is wrong than to keep supporting something that is commonly accepted in society, but that he knows is unjust. The only way to make further progress towards breaking societal constructions is to break away from the crowd and fight for what is right. These two bans create unfortunate discrimination and allow for racial, gender, and sexual orientation prejudices which contrast the idea of America being a place of freedom.