Posted by: King Bee | October 22, 2008

Regarding California Ballot Proposition 8 :

By Rick Helin

In 1947, the traditional definition of marriage in 43 out of 48 American states was “the union between one man and one woman of the same race”. That definition was also the legal definition within the State of California.  But a single court case overturned this overwhelmingly popular legal preference in California.  “The People had spoken!  What right do a handful of activist judges have to overturn the will of the people?” was the cry.  Sound familiar?

It was the case of: Perez v. Sharp (1948), also known as Perez v. Lippold. In Perez, the Supreme Court of California recognized that interracial bans on marriage violated the Fourteenth Amendment of the Federal Constitution.  Case closed… but only for those living in California.

Not much changed after that. After all, California is California.  No sweeping universal change to marriage laws throughout the remaining states.  Not until the early sixties.

In 1966, the Presbyterian Church took a strong stand stating that they did not condemn or prohibit interracial marriages. The church found “no theological grounds for condemning or prohibiting marriage between consenting adults merely because of racial origin”. In that same year, the Unitarian Universalist Association declared that “laws which prohibit, inhibit or hamper marriage or cohabitation between persons because of different races, religions, or national origins should be nullified or repealed.”   Months before the Supreme Court ruling on Loving v. Virginia the Roman Catholic Church finally joined the movement, supporting interracial couples in their struggle for recognition of their right to marriage.

In light of Proposition 8 being on the ballot this November, the following historical moment may give both supporters and opponents of the ballot measure something to think about come this election day.

Loving v. Virginia, 388 U.S. 1 (1967), was a landmark civil rights case in which the United States Supreme Court declared Virginia’s anti-miscegenation statute, the “Racial Integrity Act of 1924”, unconstitutional, thereby ending all race-based legal restrictions on marriage throughout the entire United States… all fifty states.

The plaintiffs, Mildred Loving (nee Mildred Delores Jeter, a woman of African and Rappahannock Native American descent, 1939 – May 2, 2008)[2][3] and Richard Perry Loving (a white man, October 29, 1933 – June 1975), were residents of the Commonwealth of Virginia who had been married in June 1958 in the District of Columbia, having left Virginia to evade the Racial Integrity Act, a state law banning marriages between any white person and any non-white person. Upon their return to Caroline County, Virginia, they were charged with violation of the ban. They were caught sleeping in their bed by a group of police officers who had invaded their home in the hopes of finding them in the act of sex (another crime). In their defense, Mrs. Loving had pointed to a marriage certificate on the wall in their bedroom. That, instead of defending them, became the evidence the police needed for a criminal charge since it showed they had been married in another state.

Specifically, they were charged under Section 20-58 of the Virginia Code, which prohibited interracial couples from being married out of state and t hen returning to Virginia, and Section 20-59, which classified “miscegenation” as a felony punishable by a prison sentence of between one and five years. On January 6, 1959, the Lovings pleaded guilty and were sentenced to one year in prison, with the sentence suspended for 25 years on condition that the couple leave the state of Virginia. The trial judge in the case, Leon Bazile, echoing Johann Friedrich Blumenbach’s 18th-century interpretation of race, proclaimed that
“    Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the in terference 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.

After doing their time in prison, The Lovings moved to the District of Columbia, and on November 6, 1963 the American Civil Liberties Union filed a motion on their behalf in the state trial court to vacate the judgment and set aside the sentence on the grounds that the violated statutes ran counter to the Fourteenth Amendment. This set in motion a series of lawsuits which ultimately reached the Supreme Court.

The Decision of the US Supreme Court

The U.S. Supreme Court overturned their convictions in a unanimous decision, dismissing the Commonwealth of Virginia’s argument that a law forbidding both white and black persons from marrying persons of=2 0another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:

“    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 free dom 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 Supreme Court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate 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=2 0that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.    ”
Despite this Supreme Court ruling, such laws remained on the books, although unenforceable, in several states until 2000, when Alabama became the last state to officially repeal their state’s laws prohibiting mixed-race marriage.

The irony, as I see it, is the successful passage of this specific proposition may be the unintended vehicle that drives the ultimate overturn of ALL existing state laws prohibiting marriage “between members of the same sex”.   Indeed, the success of this ballot measure, resulting from the concerted effort from both those who live within California as well as those interlopers from outside this state’s boarders, who have invested so much of their personal time, energy, money and emotional support, just so this state ballot measure succeeds.

Instead of leaving well enough alone and allowing the decision of the California Supreme Court to remain a states issue…(i.e. “The Constitution of the State of California” vs. “The Tyranny of Majority Rule” ), this legal case may ve ry well be the test case that leads directly to the US Supreme Court.  When, or if, that happens, they won’t be deciding the outcome for just California, they will be deciding it for the entire country.

It may take 2-3 years for the typical appeal to work its way the top court of the land.  Should they be pressed to hear this case, it would appear to me the court has already set a very clear case for the probable outcome.  Through the 1980’s, racial segregation was this nation’s focal point for those wishing to retain the social status quo.  Today, it’s homophobia.

When reading the court’s earlier opinion deciding “Loving v Virginia”, if one simply substitutes the words “sexual orientation” for the word “race”, I believe the future outcome of the Court’s decision has already been chiseled in stone.

Once again, in the words of the court are:

“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 their (sexual orientation) 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 Fourt eenth Amendment requires that the freedom of choice to marry not be restricted by invidious (sexual orientation) discrimination.  Under our Constitution, the freedom to marry, or not marry, a person of (their choosing) resides with the individual and cannot be infringed by the State”.

I have this strange feeling… if Proposition 8 actually wins…in hindsight, I believe a lot of its supporters will one day kick themselves and ask themselves the question: “why couldn’t we have let a sleeping dog lie?”  But, don’t worry, in time… we will all adjust.

Culture is a milieu of ever-changing social definitions.  That’s a good thing.  Just as the words of the Virginia judge seemed so anachronistically harsh by today’s standards, this change in our social perceptions didn’t come without a struggle.  Perhaps this ballot measure may be, one way or the other, the final nail in the coffin which buries the hatred and irrational homophobic fears manifested by far too many citizens for far too long.  Just a thought.

Rick Helin


  1. 🙂

  2. Here’s what more and more Gay Americans are doing; withholding all federal tax until our FAMILIES and CHILDREN have Marriage Equality.

    Our society and its laws treat us as SUB-Americans. Yet they expect us to pay taxes.

    I seriously doubt we will EVER have equality in other areas of life (military, adoption, hate crimes) until the US government starts to treat our families and children AS WORTHY AS other families. How do we expect to enlist in the military openly, adopt children without discrimination, or walk safely out and about in the world if our HOMES, our FAMILIES, are viewed as SUB-human in the eyes of the law?! What is more important than FAMILY?

    Is SUB-American OK as a tax-payer? R-e-a-l-l-y?

  3. Amen.

  4. Thank you for laying this out so precisely. It is my hope, also, that if Prop 8 passes, this comes before the Court. I try to avoid schadenfreude, but it would be nice to see the wheels come off thanks to the people driving the bus, you know?

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