Gays face same battle interracial couples fought

By Gail Mathabane, 1/26/2004

In his State of the Union address on Tuesday, President Bush hinted that a constitutional ban on gay marriage might be needed if "activist judges" continue to threaten the sanctity of marriage by "redefining marriage by court order."

Although I'm not gay, for 16 years I've been in a marriage that a group of nine "activist judges," led by Chief Justice Earl Warren, legalized in 1967. They did so by striking down the laws of 16 states, mostly in the South, that had considered marriages such as ours illegal, immoral and ungodly.

In other words, I'm white and my husband is black.

Before the U.S. Supreme Court delivered the landmark Loving decision, interracial couples were in the same boat that same-sex couples are in today. They were vilified, persecuted and forbidden to marry. Interracial marriage was considered a felony punishable by five years in a state penitentiary.

Critics of gay marriage point to polls that seem to support their position. In a USA TODAY/CNN/Gallup Poll last month, 65% said they oppose same-sex marriage. But mass opinion should not dictate judicial decisions. In 1948, when California became the first state to strike down a ban on interracial marriage, nine out of 10 Americans opposed such unions.

'Loving vs. Virginia'

In the Loving case, a Virginia judge had called for the imprisonment of Mildred Jeter, an African-American woman, and Richard Loving, a white man, after they were legally married in the District of Columbia and moved to Virginia, where their marriage was considered a felony.

The judge's ruling had religious overtones similar to those heard in the arguments of today's critics of same-sex marriage: God created the races and placed them on separate continents. The fact that he separated the races shows that he did not intend for them to mix.

On Wednesday, the Ohio Senate approved one of the nation's most sweeping measures against gay marriage. The bill, which passed 18-15, bars unmarried state employees - whether heterosexual or homosexual - from receiving benefits for domestic partners.

Ohio legislators passed the bill on the heels of a landmark ruling last November by Massachusetts' highest court granting gay couples the right to marry under the state's constitution. The court gave the Massachusetts Legislature 180 days to change state laws to make same-sex marriages possible.

Like interracial marriages, same-sex marriages are bound to become legal sooner or later, especially since the U.S. Supreme Court struck down state same-sex sodomy laws last June and California recently adopted a domestic partnership law that will give same-sex couples a status similar to marriage when it takes effect next year.

Difficult challenge ahead

In some ways, however, advocates of same-sex marriage face a tougher challenge than did advocates of interracial marriage. The 1996 Defense of Marriage Act and similar state-specific laws defining marriage strictly as a union between a man and a woman are on the books in 37 states; laws against interracial marriages were on the books primarily in the South.

Laws usually change long before public attitudes do. After I got married, a well-meaning North Carolina woman told me that "somewhere in the Bible" it says blacks and whites are not supposed to love each other "because they're different species." I responded that as a minister's daughter, I was quite familiar with the Bible and believed that God loves us all - regardless of race, creed or sexual orientation - and wants us to have happy marriages with faithful spouses of our own choosing.

Some conservatives argue that the government should keep its nose out of people's private lives. I agree. The government should have no role in dictating whether two individuals can marry. Gay marriage, like interracial marriage, is not a threat to the sanctity of marriage and will not upend America's social structure.

The Supreme Court's Loving decision stated that marriage is one of the "vital personal rights" protected under the 14th Amendment. It is time these rights were extended to same-sex couples so they can enjoy the many emotional, financial and social benefits offered by legalized marriage.

Gail Mathabane, a journalist, is the co-author of Love in Black and White: The Triumph of Love Over Prejudice and Taboo.

'Freedom to Marry Rings' image upper right © H. Mitchell.