Kapitol Hill

Not "Loving" Equal Protection in California

On the very day that 53 percent of the country voted to elect the nation's first African-American as President of the United States -- wiping away more than 200 years of sanctioned racial barriers and providing Barack Obama with a landslide in the Electoral College -- which coincidentally was instituted to give slave-holding states more political influence -- a similar percentage of voters in California was voting to take away a civil right of other citizens.

If the electorate hasn't heard about the results regarding Prop. 08, it might be because the country is still aglow at the historic and significant movement the United States made in deciding that it would fulfill Martin Luther King Jr.'s dream of "judging people by the content of their character but the color of their skin."  Newspapers across the country created memorable and remarkable front pages using headlines, which alluded to the profound progress.  The nearly 57 million voters who went to the polls on November 4th clearly enabled that dream and each voter who participated in the election should be proud of such an occasion. 

But that pride is muddled by the contradiction of  California voters' decision to deny that same right to gay and lesbian citizens.  Proposition 8 was a petition driven law to ban same-sex marriage putting the already 18-thousand same-sex marriages cosigned by California law in jeopardy of being legally recognized by state agencies and the companies these couples work for in terms of benefits and services.

The contradiction of accomplishing one historic dream and dashing the hopes of others is even more disturbing by the fact that 70 percent of African-American voters in California approved the notion that a section of the American population should be denied the very right that the Constitution granted them in the fourteenth amendment and certified by the Supreme Court in the 1967 case Loving v. Virginia.

Loving centered on the case of Mr. and Mrs. Richard Loving -- a white man and a black woman who were arrested in violation of a Virginia law that prohibited interracial marriage.  The Supreme Court ruled correctly that the federal rights of individuals under the Constitution forbids states from enacting laws prohibiting a citizen from conducting themselves in the exact way as other citizens merely because of their race.  In other words, if White citizens have the right to marry Whites and Black citizens have the right to marry Blacks, then Black citizens have the right to marry White citizens.

There are some who believe that Loving has no barring on the issue of same-sex marriage and believe it is a case of apples and oranges.  That is a hypocritical belief used by those who wish to debate moral arguments versus legal ones.  No one is suggesting that Churches cannot exercise their first amendment rights to freedom of religion by denying same-sex marriage theological sanction; but if we grant that right to religious institutions to not condone such marriages, we must also grant the same weight to the legal rights of individual citizens under the fourteenth amendment.  The Constitution is a whole document -- not one that can be cut and spliced when our individual moral fibers are frayed.

It was just eight years ago that Alabama became the last state in the Union to erase its interracial ban in 2000.

So how draconian was the Virginia anti-miscegenation statute?  It stated:

"If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."

While no one has suggested that same-sex couples be placed in jail for sharing wedding vows it is important to note that 16 other states in the 1960s had the same laws on their books.  This is significantly similar to the various same-sex bans being approved today.

In the 1960s supporters of such laws cited concerns such as: interracial marriages will destroy the sanctity of the institution; they decried the act as immoral and against the will of God -- all too modern arguments used today to denounce same-sex marriage. If the country wishes to have a highly emotional debate over the morality of marriage that is one thing but once the argument seeps into individuals legally protected constitutional rights it becomes a non-emotional one where the scales of justice must be equal for everyone.  

 Are we ready to say that homosexuals are not full citizens -- is anyone ready to proclaim perhaps they are merely three-fifths of a person?

 Chief Justice Earl Warren writing for the majority, which was unanimous, said this of  Loving:

"the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment."... 

and he continues..."we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose."

..and further he adds... "There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality."

... and finally he concludes... "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... 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."

Lest we as a nation wish to engage in Heterosexual Supremacy we need to be very careful of the message we send out.  Marriage is not an institution that is merely sanctioned by one's church -- no one believes atheist can't marry  or  polygamy ordained by churches is not illegal -- No,  marriage is a legal partnership defined by legislation and protected by the Constitution.

To suggest the State has a right to define who can participate in this action is to suggest that Earl Warren and the Supreme Court was wrong and Virginia and its Deep South partners in interracial marriage bans were actually correct.

If that is what we are to conclude then we must realize that Barack Obama might not have ever gotten the opportunity to be President and the 70 percent of Blacks who supported Prop. 08 might not have ever had the right to vote in the first place.  

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Climbing The Spiral Staircase of Progress

Over the course of American history there have been many steps taken to repair the damage of centuries of racial injustice and common fairness and the faded realization of the unique quest embedded in the United States Constitution and founded within the Declaration of Independence that "all mean are created equal" and that each person is "endowed by our creator with certain inalienable rights, chief among them are the pursuit of life, liberty and happiness."

The spiral upward steps toward that objective are scattered across the historic time-line of the United States.  In the Post-Civil War movement the Union required the Rebel States to adopt the 13th and 14th amendments; bringing in an era of Reconstruction which saw former slaves enter into society as politicians and created pockets of success in places like Oklahoma and Texas in the form of small towns with names like Freedman.  But after eight years the rise of the Klan and the retreat from federal mandates placed that progress on pause.

In the sixties, in places like Montgomery,  older African-Americans stood up and walked instead of riding buses that forced them to the back seats.  In places like Greensboro young African-Americans protested their status  by sitting down at lunch counters where they were told they could not place orders and be true customers.  In places like Birmingham they mourned the death of four little girls who died in a feat of hatred but used those tears to move the country forward by demanding dutifully required rights.  In the end those cries ended with the passage of the Civil Rights Act and the Voting Rights Act.  But fights over education and busing lead to increased tensions and placed that progress on slow motion.

So society sped up the proverbial tape to November 4th, 2008, where a young man named Barack Obama from the south side of Chicago, who by his own admissions says he was the unlikeliest of candidates was rewarded with an overwhelming victory to become the 44th President of the United States of America and by that very fact became the first African-American to hold the highest elected office in the land.  Throughout his campaign President-elect Obama attracted the truest sense of the "American Melting Pot" while his opponents looked more like a black and white television show except the black was missing.  President-elect Obama proved that at the end of the day the country can truly judge each other by the content of character if given an unfiltered opportunity to do so.  In the end the polls proved correct and the projections of electoral wins proved right -- not one state, which he lead -- even slightly on the Monday before turned on the once-feared Bradley Effect.  Progress has been made. But, the journey is far from complete.

If anything the election of Barack Obama shows what the model of success for a once powerless people should look like and exposes what happens when those opportunities are shut off.  His ability to journey to the best schools and receive a wider view of  access; his foundation on building society up from the ground up and not forgetting the least of those; his abilities to use his talents to increase his income and provide his own children with the same opportunities he has had and thus putting them on the road to success.

The struggle, which his election does not erode is that that door is still barred to too many who look just like him.  In too many inner cities unemployment still stands double the national average and in the even more targeted black male category it is 40 to 50%.  In the halls of too many public schools young minority children still are three and four grade levels behind in math, reading and science and even worse almost six out of ten of them who make it to high school won't end the day with a diploma.  In the neighborhoods the wealth gap is increasing to the point where the black middle class is fleeing its enclaves leaving all but the poor to suffer in crime riddle streets.  

The "Haves" may have more blacks in their mix but the "Have Nots" continue to have more of them -- and the opportunities for them to move to the other side of the line are few and increasingly so.

Only in America could a young man who had to sleep in an alley in New York City less than 20 years ago could one day be President of the United States.  It is undeniable that progress has been made -- the struggle that continues is how to ensure that the progress that made President Obama possible is provided to everyone who wants it and probably more importantly need it.

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