Constitutional Law
Mar. 24, 2004
Same-Sex Unions Will Join Other Constitutional Freedoms
Forum Column - By Stephen F. Rohde - From the founding of our nation, despite bigotry and prejudice, the trajectory of our society has been in the direction of expanding civil rights and eradicating obstacles to equality.
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
By Stephen F. Rohde
From the founding of our nation, despite bigotry and prejudice, the trajectory of our society has been in the direction of expanding civil rights and eradicating obstacles to equality.
The spirit of America, if not honored in all places at all times, is dedicated to trying to achieve the promise of the Declaration of Independence, which affirmed that "all men are created equal" and are endowed with certain "unalienable rights," including "life, liberty and the pursuit of happiness."
Of course, many of the men who wrote and endorsed those lofty words owned other human beings, who hardly enjoyed any rights, let alone "life, liberty and the pursuit of happiness." The same was true of women and the poor. In that time and place, subjugation according to race, gender and class was woven tightly into the fabric of society. It was seen as natural and inevitable, with no end in sight.
That has largely changed. Because of a civil war, a series of constitutional amendments, evolving standards of human rights, the dramatic civil rights movements and the enactment of a wide array of local, state and federal statutes and regulations, slavery was abolished, people of color and women were guaranteed the right to vote, segregation was dismantled and invidious discrimination was prohibited.
But bigotry and prejudice die hard, and in every era, the vestiges of oppression cling tenaciously, long after legal impediments to equality have been removed.
Now we are engaged in a great debate over same-sex marriages, testing whether a nation conceived in liberty and dedicated to the proposition that all men and women are created equal can endure when the pursuit of happiness is guaranteed to some, but not to all.
In 1836, slavery was firmly established in America. Senator John Calhoun of South Carolina called it the "inevitable law of society." Representative James Henry Hammond deemed slavery the "greatest of all the great blessings which a kind Providence has bestowed upon our glorious region."
He assured his fellow representatives that slavery "produces the highest-toned, the purest, best organization of society that has ever existed on the face of the earth." Others spoke of slavery as "indispensable" and as one of the "natural advantages of the society." President Andrew Jackson, a Tennessee slaveholder, called abolitionists "unconstitutional and wicked," and Hammond labeled them "ignorant, infatuated barbarians."
The stigma of slavery would live on long after the 13th, 14th and 15th Amendments were adopted, in Jim Crow and in anti-miscegenation laws, which prohibited blacks and whites from marrying.
Long before President Bush called for a "constitutional amendment protecting marriage," Representative Seaborn Roddenberry of Georgia in 1919 proposed a constitutional amendment stating, "Intermarriage between Negroes or persons of color and Caucasians ... is forever prohibited." Roddenberry declared that nothing less than a constitutional amendment would suffice, because some states actually were permitting interracial marriages, which he called "abhorrent and repugnant" and "debasing, ultra-demoralizing, un-American and inhuman leprosy."
Roddenberry's amendment lost steam, but the laws prohibiting interracial marriage persisted. In 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, residents of Virginia, were married in the District of Columbia. When they moved back to their home state, they were indicted and convicted of violating the Racial Integrity Act of 1924.
The trial judge agreed to suspend their one-year jail sentence if they would leave the state and not return for 25 years, saying that "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 arrangements, 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."
In upholding the law, the Virginia Supreme Court found that it served the legitimate purpose of preserving "the racial integrity of its citizens," and prevented "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride."
When the case reached the U.S. Supreme Court, in the gloriously named decision Loving v. Virginia, 388 US 1 (1967), the Court unanimously struck down the law under the Equal Protection and Due Process Clauses of the 14th Amendment.
Finding that the classifications in the Virginia law constituted "arbitrary and invidious discrimination," the Court noted, in words as relevant today as they were 37 years ago, that the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men" and one of the "basic civil rights of man, fundamental to our very existence and survival."
The California Supreme Court, we are proud to note, was the first state court, almost 20 years before Loving, to hold that laws banning interracial marriage violated the Equal Protection Clause, in Perez v. Sharp, 32 Cal.2d 711 (1948).
In announcing his call for a constitutional amendment banning same-sex marriages, President Bush repeatedly complained about "activist judges" in Massachusetts and elsewhere, who were frustrating the "will of the people."
Had he been president 50 years ago, would he have complained about the "activist judges" on the California Supreme Court who decided Perez or the "activist judges" on the U.S. Supreme Court who decided Loving, given that a 1958 poll found that 96 percent of whites disapproved of interracial marriages?
The only thing "activist" about the judges who upheld interracial marriages back then, or about the judges who uphold same-sex marriages today, was and is their "activism" in guaranteeing and upholding the Constitution. Activism in defense of individual liberties is no vice, and passivity in the face of discrimination by the majority is no virtue.
In 1986, the U.S. Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986), upheld the constitutionality of a statute making it a crime for two persons of the same sex to engage in sodomy. Yet, last year, in Lawrence v. Texas, U.S. 123 S.Ct. 2472 (2003), the Supreme Court reversed Bowers and held that such statutes violate the 14th Amendment.
Citing the fundamental principle that "[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct," Justice Anthony Kennedy wrote for the majority, in words sure to be cited when the issue of same-sex marriages reaches the high court, that the "liberty protected by the Constitution allows homosexual persons the right" to make the choice to enter into personal relationships and retain "their dignity as free persons."
Justice Kennedy readily acknowledged that the earlier decision in Bowers reflected the fact that "for centuries there have been powerful voices to condemn homosexual conduct as immoral," which have been "shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family." But he concluded that these considerations did not answer the question before the Court, which was "whether the majority may use the power of the State to enforce those views on the whole society through operation of the criminal law."
The Court's resounding answer was: No. "Our obligation is to define the liberty of all, not to mandate our own moral code."
In a groundbreaking passage, the Court affirmed constitutional protection for "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy [which] are central to the liberty protected by the Fourteenth Amendment," including marriage. The Court found that such constitutional protection specifically applies to "[p]ersons in a homosexual relationship [who] may seek autonomy for these purposes, just as heterosexual persons do."
Finally, so as to drive the last nail in Bowers' coffin, Justice Kennedy embraced Justice Stevens' dissent in that case, which said that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."
In other words, the fact that President Bush and (supposedly) the governing majority of this country, or any particular state, have traditionally viewed same-sex marriage as immoral is not a sufficient reason to uphold a law prohibiting such marriages; neither history nor tradition, nor the "cultural, religious and natural roots" cited by Bush could save a law prohibiting same-sex marriages from constitutional attack.
The relentless march toward equality and the expansion of civil rights and individual liberty soon will embrace equality for same-sex marriages. In time, the exclusionary words of Bush and his allies will take their place alongside those of Calhoun, Hammond, Jackson, Roddenberry and others who believed in their time and place that certain "institutions" were timeless and immutable, despite the fact that the fundamental rights of others were being violated in the process.
In a constitutional democracy such as ours, there is much that is decided by the "will of the majority." But no majority can forever deny a minority the rights guaranteed by the Constitution.
Stephen Rohde is a constitutional lawyer and president of the Beverly Hills Bar Association. He wrote the reference book "Webster's New World American Words of Freedom." This essay also appears in the March issue of the Beverly Hills Bar Association publication Bar Brief.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com