And just because I am in the mood now, here is a little historical precedent

Quote:


More than a half-century ago, the California Supreme Court became the first in the nation to overturn a law banning interracial marriage, a prohibition that was then widespread and had strong public support.

The current battle over same-sex marriage, now before the state's high court, may depend on how the court compares present-day, opposite-sex-only marriage laws with the racially discriminatory laws of an earlier day. It's a point on which the opposing sides disagree sharply.

The ban on interracial marriage was based on the asserted "superiority of the white race,'' said attorney Jon Davidson of the Lambda Legal Defense and Education Fund, which has joined in the defense of same-sex weddings in San Francisco. At the heart of the current marriage prohibition, he said, is "an attempt to keep gay people inferior.''

John Eastman, a professor at Chapman University School of Law in the city of Orange, countered that the case against same-sex marriage "is grounded in human nature,'' the recognition "that men and women are different genders.'' The old racial laws, he said, derived from "a failure to recognize the equal humanity of blacks and whites.''

But during most of the nation's history, defenders of laws against interracial marriage also offered arguments based on human nature: that certain races were physically and mentally inferior, that mixed-race couples and their children would arouse antagonism and social tension, and that only the "dregs of society,'' as lawyers in the California case put it, were likely to marry outside their race.

Some version of those arguments prevailed in every court until 1948, when the California Supreme Court considered the case of Perez vs. Sharp.

Andrea Perez, a Latina, and Sylvester Davis, an African American, sued Los Angeles County Clerk W.G. Sharp after they were denied a marriage license based on a state law that prohibited "the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.'' The law dated from 1933, but similar laws had existed in California since 1850 and in other states since colonial times and were on the books in 30 of the 48 states in 1948.

The court acknowledged a long line of cases upholding race-based laws, including a widely cited 1869 Georgia ruling saying mixed-race procreation "is not only unnatural, but is always productive of deplorable results.'' But in a 4-3 ruling, the California court said such viewpoints, and the laws they supported, were discredited by science and were contrary to basic concepts of equality.

Marriage is "a fundamental right of free men,'' wrote Justice Roger Traynor in the rhetorical style of the day. "Legislation infringing such rights must be based on more than prejudice. ... By restricting the individual's right to marry on the basis of race alone, (the prohibitions) violate the equal protection of the laws.''

The ruling, though unprecedented, can be linked to other events at the dawn of the modern civil rights movement. Earlier in 1948, the U.S. Supreme Court had struck down racial restrictions on housing deeds, and President Harry Truman had ordered integration of the armed forces; a year earlier, Jackie Robinson had broken the color line in baseball.

It was nevertheless a daring court decision. Racial segregation was still legal and would not be outlawed by the nation's high court until 1954; laws against interracial marriage would not be ruled unconstitutional nationwide until 1967, when 16 states still had such laws.

The U.S. Supreme Court's unanimous 1967 ruling -- which declared that "the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state'' -- was written by Chief Justice Earl Warren, whose grandson, San Francisco Superior Court Judge James Warren, refused last week to halt same-sex weddings.

There are other parallels between past and present marriage prohibitions -- and some differences.

Laws against same-sex marriage are even more widespread than the former racial laws and enjoy equally strong public and political support. The same- sex bans are mostly newer -- California's statute was passed by the Legislature in 1977 and reinforced by the voters in 2000 -- but they're based on much older policies that were rarely if ever challenged. Most important, both types of prohibitions were imposed on politically weak minorities with a history of persecution, the grounds traditionally cited by U. S. courts for intervening to curb oppression by the majority.

"Gays and lesbians do have to deal with discrimination in employment, discrimination in the military, in (child) custody ... the feelings of inferiority, the feelings of second-class citizenship, the feeling that somebody is going to beat you, shoot you ... based on how you look,'' said Bobbie Wilson, a lawyer for San Francisco in the same-sex marriage case.

"It's hard to compare discriminations,'' said Lambda Legal's Davidson. "The heritage of slavery is something that gay people, other than gay people who are black, don't share. But the reality is that gay people have a history of being under attack in this country.''

What's more, he said, many of the arguments against interracial marriage in 1948 are being used today, "arguments based on tradition, based on the impact upon children, what it would mean to our social fabric'' if marriage rights were expanded.

On the other hand, state and federal courts in civil rights cases have examined the nature and severity of discrimination faced by different groups and concluded -- at least up to now -- that sexual minorities do not require the same level of constitutional protection as racial minorities.

When the U.S. Supreme Court overturned state sodomy laws last year, the justices relied on the right to privacy, not freedom from discrimination, and said they were not ruling on marriage. Even the Massachusetts Supreme Judicial Court's ruling legalizing same-sex marriage under the state constitution stopped short of equating sexual orientation with race.

"You don't base a constitutional protection upon the sex partners that somebody may choose,'' said attorney Benjamin Bull of the Alliance Defense Fund, which has asked the state Supreme Court to halt San Francisco's same-sex weddings. "We fought a Civil War in which hundreds of thousands of Americans died to end race discrimination, to end slavery.'' By contrast, he said, "gays as a class ... have incredible freedom and rights. They have the same rights that I or any other heterosexual has. They can even get married. They just cannot marry a same-gender person.''




As a great great great grandchild of a legally married interracial couple in Connecticut, I believe that the rights of homosexuals to marry is exactly the same as the issue of interracial marriage was in 1948.

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