Justices Samuel Alito and Clarence Thomas filed a dissenting opinion to Wednesday's Supreme Court Defense of Marriage Act ruling.
"The Constitution does not guarantee the right to enter into a same-sex marriage,” the justices wrote.
(Remember this apparent need for specific mention in the Constitution for who can get married for later.)
Alito further wrote, and Thomas agreed that “It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition". Correct me if I am wrong, but would that not be the same argument against inter-racial marriages?
As they held, “In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials”, or, I would imagine, through a Civil War to do away with the slavery system that was supported by the states that had it as part of their established history supported by their elected officials.
So, let's take a trip down memory lane to review another forbidden marriage that was "deeply rooted in this Nation’s history and tradition":
In the 1660s, Maryland became the first colony to prohibit interracial marriages. By 1750, the southern colonies as well as Massachusetts and Pennsylvania declared interracial marriages illegal. Virginia's law read that "All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process."
During the 1950s, half of the states still had laws prohibiting interracial marriage.
When slavery was instituted in Maryland in 1664, their statute read, "the law also prohibited marriages between white women and black men", and then between 1935 and 1967, the law was extended to forbid marriage between Malaysians with blacks and whites. It wasn't until 1967 that this law was repealed.
In 1869, the Georgia Supreme Court ruled that: "...moral or social equality between the different races does not in fact exist, and never can. The God of nature made it otherwise, and no human law can produce it, and no human tribunal can enforce it. There are gradations and classes throughout the universe. From the tallest archangel in Heaven, down to the meanest reptile on earth, moral and social inequalities exist, and must continue to exist throughout all eternity."
According to the New Jersey Superior Court, such laws were justified because "In case after case, legislation prohibiting racial inter-marriage was justified as unbending tradition rooting in received natural law."
California was the first state to do away with interracial marriage prohibitions in 1948.
By 1967 11 states still outlawed such unions.
Then came Richard and Mildred Loving, interracial married newlyweds, who were arrested in the early morning of July 11, 1959 when a county sheriff and two deputies broke into their bedroom in Virginia, even though they had just wed five weeks before in the adjacent District of Columbia where interracial marriages were legal.
They could have received a 5 year prison term, but were, instead, partly exiled from their home state for 25 years. They could only return to their home state of Virginia separately.
When he handed down his ruling, the presiding judge, Leon Bazile, stated, "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."
So interracial marriage was against the will of God and against natural law, which seems rather familiar if one pays attention to those who oppose same sex marriage. Certainly with natural law, the traditions of this country, and God, the Supreme Court could not possibly rule in the Loving's favor.
Yet, the U.S. Supreme Court overturned the convictions in a unanimous decision dated June 12, 1967.
The state of Virginia had argued that its law against interracial marriage was not discriminatory since it made it illegal for both white and black persons to marry someone of another race, and the penalty for each person was the same. However, the Supreme Court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
In his opinion, Chief Justice Earl Warren held that:
“ 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 discrimination. 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. ”
The law was deemed racist, and had as its purpose the perpetuation of white supremacy:
“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy”.
In his concurring brief, Associate Justice Potter Stewart stated that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."
So it would appear that it is incorrect to base a law controlling a basic civil right on something that denies people their due process under the fourteenth Amendment, and, although in this case the wrong purpose was to perpetuate white supremacy, it would appear in the recent ruling on DOMA, one could replace the word “white” with “Heterosexual” and "race" with "sexual orientation".
Some might say that the two aren’t related because the Loving case was based on race, but the point was how race was used as the excuse to deny rights, just as in the present there are those who want to use Sexual Orientation for the same thing, i.e. denying citizens their rights because we do not like the group to which they belong.
On the 40th anniversary of the Loving ruling in June 2007, Mildred Loving issued a statement in relation to Loving v. Virginia and same-sex marriage.
“I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry... 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”.
And with the Loving case the Supreme Court changed what had been the “Nation’s history and tradition” where “ultimate sovereignty rests with the people, and the people have the right to control their own destiny” and where, “any change on a question so fundamental should be made by the people through their elected officials”.
Certainly Clarence Thomas would agree with that Supreme Court decision whole-heartedly.
After all, Clarence Thomas was born in Georgia in 1948, the same year that California became the first state to do away with laws forbidding interracial marriage. Three years after the Supreme Court ruled on interracial marriages, Thomas married Kathy Grace Ambush, who this defender of traditional marriage divorced in 1984.
He then met his second wife and married her in 1987. She happens to be white, and not someone he could have married if the Supreme Court in 1967 had held the same views he included in his dissent to the DOMA ruling.
Of course, marriage is sacred to him, so, even though he had had a child with his first wife, which proved his marriage had been consummated, upon joining the Supreme Court, he requested an annulment of his first marriage from the Roman Catholic Church, which was granted by the Tribunal of the Roman Catholic Diocese of Arlington. Something a consummated marriage that produced a child would have ruled out. Oddly this was something he waited to do until he had a position of power that could potentially benefit his church in a Supreme Court ruling in which it was a party. He was reconciled to the Church in the mid-1990's and remains a practicing Catholic.
So he divorces, remarries and somehow gets an annulment for a consummated marriage. To further testify to the sanctity of marriage, he officiated at the third marriage of Rush Limbaugh, another champion of the sanctity of marriage.
And now, he does not believe the Supreme Court should have a say in marriage or ignore those traditions that placed limits on who could marry whom.
But, then again, this is the same Justice who benefited from Affirmative Action, but opposes it now for others, and sits in and rules on cases that have a connection to the wife he should not have been able to marry except for a ruling by the Supreme Court.
Oh, well. He got his, and that is all that really matters.