One thing was abundantly clear during today’s Supreme Court hearing on the issue of marriage equality, and that is that everyone agrees that the Court’s decision in the 1967 Loving v. Virginia case ruling interracial marriage to be constitutional was a no-brainer. Conservatives and liberals alike agreed that discriminating on the basis of skin color has no constitutional justification nor any justification of any kind.
“When did it become unconstitutional to prohibit interracial marriages?” Attorney Theodore Olson asked rhetorically after Justice Antonin Scalia pushed him to define when banning same-sex marriage became unconstitutional. “When did it become unconstitutional to assign children to separate schools?”
Justice Scalia, one of the most conservative justices on the Supreme Court, did not waste any time thinking of his answer.
“It’s an easy question, I think, for that one,” Justice Scalia said. “At — at the time that the Equal Protection Clause was adopted. That’s absolutely true.”
It took America one century to decide that African Americans were people and another century to decide that maybe the law should treat them fairly. Liberal and conservative leaders alike went to their graves believing there were undeniable differences between the races and that to mix them would be an abomination. Now the most conservative Supreme Court justices treat the irrationality of racism as common sense.
“You could have said in the Loving case, what — you can’t get married, but you can have an interracial union,” Olson said in explanation of why gay couples in California want to be able to get married even though civil unions provide most of the same rights in the state. “Everyone would know that that was wrong, that the — marriage has a status, recognition, support, and you — if you read the test, you know –”
Chief Justice John Roberts, another conservative justice, did not let Olson finish his sentence. Why? The problem was not that everyone would know that that was wrong, it was to pick issue with Olson’s assertion of why marriage is considered a constitutional right.
“How do we know — how do we know that that’s the reason, or a necessary part of the reason, that we’ve recognized marriage as a fundamental right?” Chief Justice Roberts asked. “That’s — you’ve emphasized that and you’ve said, well, it’s because of the emotional commitment. Maybe it is the procreative aspect that makes it a fundamental right.”
In case there could be any doubt about how unconstitutional — and nonsensical — racism is, Attorney Charles Cooper put forth the argument in rather blunt terms.
“…I’m glad that counsel for the Respondents mentioned the Loving case, because what this Court — what this Court ultimately said was patently obvious, is that the colors of the skin of the spouses is irrelevant to any legitimate purpose, no more so than their hair colors, any legitimate purpose of marriage, that interracial couples and same-race couples are similarly situated in every respect with respect to any legitimate purpose of marriage,” Cooper said.
Yes, the same Charles Cooper that is speaking out in defense of Proposition 8’s same-sex marriage ban, that is championing the conservative stance in the halls of the Supreme Court today, has no problem admitting that the conservative stance of the past was wrong. Well, not just wrong. Obviously wrong.
The Supreme Court’s ruling on today’s marriage equality case will not be known until over the summer, and it is anyone’s guess as to what the court’s verdict will be. I am not suggesting that today’s case is the same as the Loving v. Virginia case nor am I suggesting that interracial marriage and same-sex marriage have faced the same struggle. There are many differences in the obstacles that both have faced.
What I am saying is this: just as today’s most conservative Supreme Court justice is a black man married to a white woman, 50 years from now the Court’s most conservative justice will be a lesbian married to another woman, and some conservative lawyer arguing the unconstitutionality of plural marriages will laugh off the notion that there was ever a valid case against same-sex marriage.
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