Gay Marriage Is Loving v. Virginia All Over Again

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Virginia’s arguments in Loving, Shelby concludes, “are almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage. ... Anti-miscegenation laws in Virginia and elsewhere were designed to, and did, deprive a targeted minority of the full measure of human dignity and liberty by denying them the freedom to marry the partner of their choice. Utah’s Amendment 3 achieves the same result.”

So does Virginia’s marriage amendment. That is why the challenge to it could become a reprise of the Loving case — whether its defenders like that or not.

This column originally appeared in the Richmond Times-Dispatch.

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  • sarcasmic||

    Not recognizing interracial marriage were an effort to discourage mixed-race children.

    Last I checked same sex-couples can't procreate.

    Comparison fails.

  • Bo Cara Esq.||

    Plus, gay people do not necessarily have different color skin!

  • ||

    I don't recall legislative intent factoring into the SCOTUS reasoning. But I do not consider myself and expert on the decision either.

  • ||

    And gay couples never raise children, so co-adoption and custody issues never come up.

  • Hugh Akston||

    Gay couples just adopt kids so they can eat them, right? Or do they molest them first and then eat them?

  • Almanian!||

    Now you're making me want a dead baby float...

  • ||

    Since you're setting it up, I'll oblige:

    How do you make a dead baby float?

  • Almanian!||

    Drop it in the lake and wait for bacteria to do its thing?

  • Almanian!||

    Hitler?

    I'm lost now, jesse...

  • EDG reppin' LBC||

    I pint of root beer, a scoop of vanilla ice cream, and 1 dead baby.

  • ||

    Thanks EDG, I just adopted a flat of good Christian babies and was trying to figure out what to do with them. Al totally failed me.

  • Almanian!||

    *hangs head*

    I try harder next time...

  • SIV||

    Matzo!

  • Pelosi's Rabbit||

    Foes of gay marriage — a shrinking cohort — do not like comparisons to interracial marriage.

    Keep reading if you want to see this proven true. A lot.

  • Malvolio||

    Take your foot off his head.

  • Thomas O.||

    Put Velcro on the... oops, wrong joke.

  • Almanian!||

    That's why there are all those feral children running around - teh GAIZ not raising them!

    YOU BASTARDS!

    *shakes fist*

  • ||

    Look Al, there aren't that many of us and we can't raise all the children, y'all need to slow your roll with the procreation just a bit. I keep offering to cover sterilization costs for straight people of my acquaintance, but they think I'm joking, or in the case of itsnotmeitsyou, they don't really need it and just think it'd be fun.

  • taker||

    Gay couples with children are A) virtually always lesbians, B)will not contribute materially to population replacement (you know, those people who will work to pay their social security, medicare and pensions) in the foreseeable.

    Look, it cost me about $2 million dollars to create and raise 4 children, 3 still living.

    Procreation is the issue for marriage, the ONLY issue, and has always been so. Outliers exist, but one cannot make policy decisions and include every outlier.

    As to other issues such as inheritance, what business is it of the government who you leave your money to? Or who you decide will make your medical decisions on your behalf, or how many people and in what relationship respects should they be regulated. Libertarian answer - none of the above. Rather than "marrying" gay people, we should protesting the government's entry into that social aspect at all. My divorcee alone cost over a half a million dollars. I wouldn't subject that to anyone.

  • Tony||

    So clearly your epiphany about abolishing government marriage came after you had already availed yourself of it?

  • ||

    Answering for myself, yup.

    If my sexuality isn't a choice, how the hell is my marriage a conscious decision?

    I'm not against homosexuality and never have been. I am against state sanctioning of behavior in general, behavior that doesn't intrinsically benefit society at large, and, maybe most of all, behavior that doesn't benefit me personally.

    My marriage benefits me, other people's less so, other gay peoples', generally even less (and the other people don't demand parades or pride month). It would be Bitchin' if there were no law of diminishing returns and we could mandate everyone a "you're special" license, but eventually there won't be a point to adding letters to the LGBTQA morass.

  • CentristClassicalLiberal||

    People were also against interracial marriage for "moral" reasons. They considered interracial sex beastiality since they didn't view blacks as human or as human as whites.

    My last partner was of the same sex. Felt legitimate as i'm attracted to the scents put off by the same sex (and the opposite sex).

  • bassjoe||

    Then we should ban ALL marriages that won't procreate. That will go over awesomely.

  • Tony||

    We need to clone you and make you the Emperor of Science and the God-king of jurisprudence, among other things. You just know so much better than the scientists, judges, and other experts who do these things for a living, don't you?

  • ||

    I wasn't aware that scientists were making many groundbreaking discoveries in the field of marriage, but I mean shit, as long as they're experts...

  • Acosmist||

    Black people, you're basically gay. -Reason

  • Anonymous Coward||

    As the 2008 Proposition 8 in California demonstrated.

  • Bo Cara Esq.||

    That is a pretty tired response. It is an analogy, the point of which, as usual with them, is focusing on similarities over differences, not denying all differences.

  • Acosmist||

    Which is why it should be shouted at every black person Reason editors see - you're gay.

  • Bo Cara Esq.||

    Tired responses should be shouted?

    I guess then at least they would have volume if not validity.

  • ||

    "WomanHomosexual is the nigger of the world."

  • Almanian!||

    I am so tired of this fucking gay subject. So tired that I am compelled to comment on it.

    Also - OUTRAGE!

  • CentristClassicalLiberal||

    I'm so tired of this pot and immigration stuff! I'm an American and America is a white Christian country whose culture discouraged pot and immigration before the illuminati took over and put BPA and GMOs and atheism into everything.

    /sarcasm

  • Almanian!||

    ding, ding, ding, ding, ding, ding!!!

  • Bo Cara Esq.||

    Except maybe the penalties, obligations and liabilities?

  • Almanian!||

    Shhhh! He's on a roll....

  • Hugh Akston||

    I was always under the assumption that any couple who married was required to submit a tape of their wedding night to the state conjugal registry as part of the permitting process.

  • ||

    I think you're thinking of getting out of military service in Turkey.

    "They asked me if I liked football, whether I wore woman's clothes or used woman's perfume," he says.

    ''I had a few days' beard and I am a masculine guy - they told me I didn't look like a normal gay man.''

    He was then asked to provide a picture of himself dressed as a woman.

    ''I refused this request,'' he says. ''But I made them another offer, which they accepted.'' Instead he gave them a photograph of himself kissing another man.

    And

    He had gone prepared with explicit photographs of himself having sex with another man, having heard that it would be impossible to get out of military service without them.

    ''The face must be visible,'' says Gokhan. ''And the photos must show you as the passive partner.''
    [...]
    ''And it's still terrible. Because somebody holds those photographs. They can show them at my village, to my parents, my relatives.''

    Is it bad that I really want access to that military archive?

  • Almanian!||

    Holy shit - that's.....disturbing

  • Hugh Akston||

    So Turkey doesn't allow gaybros to serve in the military? Even the Turkish oil wrestlers?

  • ||

    Now I'm not going to get any work done today... Not that I was going to get any work done anyway.

    Turkey has a DADT-like policy, but they make you prove you're gay rather than hunting you down and expelling you when you piss off a neighbor and they out you.

  • Fist of Etiquette||

    ''The face must be visible,'' says Gokhan. ''And the photos must show you as the passive partner.''

    I knew it wasn't gay if you are on top.

  • ||

    See, I never try that gambit because I didn't think straight guys would buy it. I always learn new things from you FoE.

  • SusanM||

    "nothing is preventing straight same-sex couples from getting married for the perks, privileges and bennies"

    Your point being what, exactly? If a bromance does blossom that way then who are we to judge? And, what's preventing marriages of convenience between heteros?

  • Almanian!||

    Pretend there's a "sarc" in his name and reread what he wrote...

  • SusanM||

    The Sarcasmotron 6900 is offline today.

  • sarcasmic||

  • Mainer2||

    He's a lover, not a fighter...but he's also a fighter, so don't get any ideas.

  • CentristClassicalLiberal||

    If men and women and can get married for simply the benefits then what's the point of bringing same-sex couples into the equation? And who said everyone in a same-sex relationship was gay? I'm bi and my last partner was of the same sex.

  • CentristClassicalLiberal||

    Men and women marry for the benefits all the time so what difference does it make if it's a same-sex couple? And who said everyone in a same-sex relationship is gay? I'm bi and my last partner was of the same sex, in fact I was into the same sex before I got into the opposite sex.

  • Almanian!||

    For RC Dean, as usual:

    A. Barton Hinkleheimerschidt
    His name is my name, too!
    Whenever we go out
    people always shout,
    "There goes A. Barton Hinkleheimerschmidt!"
    LALALALALALALA!

    OUTRAGE!

    Also - fried chicken

  • RightNut||

    Asking why gays should be allowed to marry asks the wrong question. The right question is: Why should government stop them?

    No, the correct question is: Why should government care who is married?

  • Almanian!||

    NOW we're getting somewhere

  • Bo Cara Esq.||

    "Set aside for the moment the profoundly authoritarian implications of assuming that “ordering ... human relationships” is any part of government’s job. And that government can be trusted to know what is “ideal” and “optimal.” And that it should seek to enforce its vision of what is “ideal” rather than simply protect individuals’ liberty to pursue their own happiness as they define it."

  • JW||

    Why should government care who is married?

    Right after you ask, "Why are we still asking the state who we can marry?"

  • Robert||

    Why should gov't care? Well, they do have courts. And when people take to court the issue of whether someone is married, they have to care—it's their job.

  • Jeff D||

    Speaking of irrational,

    Loving v. Virginia is about opposite-sex marriage. Whenever the decision talks about "marriage," you can mentally replace that with "opposite-sex marriage," because that is, of course, what they are talking about.

    Loving v. Virginia does not support marriage redefinitionalism. To think otherwise is irrational.

  • Hugh Akston||

    How many states had marriage statutorily defined as between one dude and one rockin chick before this whole gay marriage panic?

  • Robert||

    Nobody thought it had to be statutorily defined, because that was the ordinary dictionary, customary, spontaneous-order meaning of the word!

  • ||

    Which is, of course, static throughout time.

    That's why I married my cousin Leah even though I really wanted to marry my cousin Rachel, but it was cool because I married her too. It sure is important to keep property within close knit family groups. Unless of course your wife is just a pawn in solidifying political power or brokering a common defense treaty.

  • Robert||

    No, the meaning of words is not static throughout time. But legal questions need to be resolved on the basis of the meaning of words at the time they were written or spoken.

    Suppose the charter of a club founded in 1960 said that its members would all be "gay". In the absence of any evidence to the contrary, that should be read as "happy".

  • Homple||

    Jerry Lee Lewis was ahead of his time.

  • Flemur||

    Gay Marriage Is Loving v. Virginia All Over Again

    No it's not.

    As Thomas Sowell says:
    "Of all the phony arguments for gay marriage, the phoniest is the argument that it is a matter of equal rights. Marriage is not a right extended to individuals by the government. It is a restriction on the rights they already have. [Plus monetary subsidies from unmarried people, for no good reason]
    ...
    Marriage laws have evolved through centuries of experience with couples of opposite sexes -- and the children that result from such unions. Society asserts its stake in the decisions made by restricting the couples' options.

    Society has no such stake in the outcome of a union between two people of the same sex. Transferring all those laws to same-sex couples would make no more sense than transferring the rules of baseball to football.
    ...
    Why then do gay activists want their options restricted by marriage laws, when they can make their own contracts with their own provisions and hold whatever kinds of ceremony they want to celebrate it?

    The issue is not individual rights. What the activists are seeking is official social approval of their lifestyle. But this is the antithesis of equal rights."

    And, of course, seeking other peoples' money. For no good reason.

  • ||

    I was unaware that I could just contract up some 5th amendment spousal privilege, help a partner remain in the country, and in some states co-adopt without being legally married... Please tell me more about these awesome contracts I've been unaware of all these years.

  • ||

    And the biggest one of all, being exempt from estate taxes as well as inheriting benefits like SS.

  • ||

    True. Liberals would consider dodging estate taxes to be "seeking other peoples' money. For no good reason." but I'll give Flemur the benefit of the doubt on that since he's quoting Sowell, even if I think Sowell is being narrow in this case by assuming that gay marriage has no role in child-rearing.

  • ||

    I was unaware that I could just contract up some 5th amendment spousal privilege

    Spousal privilege isn't specified in the 5th amendment - it is an outgrowth of common law, and isn't always observed (particularly at the federal level), or observed consistently. The 5th amendment only protects you from self-incrimination.

  • Fatty Bolger||

    Thomas Sowell would never accept this kind of muddle-headed logic from a liberal. Marriage does not apply merely to child bearing. If it did, it would be restricted to fertile couples who intend to have children. And if it's about child rearing, gay couples can legally raise children. So using Sowell's logic, "transferring all those laws to same-sex couples" not only makes sense, but is a moral imperative.

    I've seen this before with Sowell. When an issue butts up against his religious convictions, his normally clear-headed logical thinking goes out the window.

  • Robert||

    For a long time, infertility was legal ground to annul a marriage.

  • ||

    For a long time, infertility was legal ground to annul a marriage.

    Still is, in some states. Infertility or old age also renders first cousin marriage legal in certain states where it is otherwise illegal.

  • Zeb||

    Can't agree with Sowell there. Marriage has continued to evolve and now includes same sex couples, whether the state recognizes it or not. If you are going to make the argument about how marriage has organically evolved over the years, you can't just decide to ignore recent years because they don't support what you are trying to say.
    And while being able to produce a child who is genetically the offspring of both parents is not possible in a gay couple, the same is true for many straight couples. If you don't think that gay couples can have children together and have the children benefit from a stable family life, then go tell some adopted people that their parents aren't really their parents.

  • Mickey Rat||

    "Marriage has continued to evolve and now includes same sex couples, whether the state recognizes it or not."

    This is a question begging argument on so many levels. If marriage was evolving organically in this way then taking it to the courts was the wrong thing to do. Odd how this "evolution" of marriage has legal assumptions baked in that would prevent marriage from evolving back the other direction.

    "If you don't think that gay couples can have children together..."

    It is a fact that homosexual couples cannot have children together. Any children they are raising involved other people in their conception.

  • Thomas O.||

    I think there's two different meanings of "have" in play here. Zeb's meaning: adopt and raise. Mickey's meaning: biologically conceive.

    Ultimately, we're talking about gay-couple households being able to function as a family with the same financial breaks as husband-wife households. Throwing out biological facts - when they have no bearing on financial privileges, especially in modern times - is irrelevant and mean-spirited, if you ask me.

    I'm a man married to a woman and we have two adopted kids. So we're mostly in the same situation as two men or two women raising kids. If you claim we're not a family, them's fightin' words.

  • Rich||

    Marriage, as Shelby observes, is a fundamental right — so fundamental that even prison inmates retain the right

    As fundamental, even, as the rights to life, liberty, and the pursuit of happiness?

    This kind of talk leads nowhere.

  • Thomas O.||

    I'm certain marriage falls under "pursuit of happiness".

    (No snarky comments from the peanut gallery.)

  • ||

    I'm certain marriage falls under "pursuit of happiness".

    Most positive rights do, in the very broad sense that they make the recipients very happy.

  • ||

    Which is to say, it would be useful to draw a distinction between the civil institution of marriage, which is a legal construct currently conceived in the form of a positive right, and the social institution, which is a social construct currently conceived as your parents shaming you into monogamy so they can have grandchildren, or at least you can buy a place in the suburbs and fit in with what their friends' kids are doing.

  • Homple||

    "Marriage, as Shelby observes, is a fundamental right...."

    That's a right I had not heard of until relatively recently. Where did this right come from?

  • Tony||

    Same place the rest of them come from: Eunostus, goddess of the flour mill. Yep, turns out that's the one.

  • Thomas O.||

    Well, you could say, in a sense, it's "the right of the people to peaceably assemble"... if you use the definition of "assemble" as "to put/join together". :D

  • sarcasmic||

  • Duke||

    But preserving tradition and expressing disapproval are not valid grounds for circumscribing individual rights.

    Let’s talk about those. Are we talking about income tax penalties/breaks for married couples? Devolution of property issues? Adoption of children? If so, then actually discuss the issues in depth. I would think outside of those legal issues, who cares if the state recognizes your marriage or not.

    On the other hand, if you conflate sexuality with race, then you effectively force, through the firepower of the state, a baker to bake a cake for a gay couple, even if it’s against his religious beliefs. Sexual preference is not exactly the same as sex or race or religious choice for reasons which should be patently obvious.

  • Hadley V. Baxendale||

    Let's apply Occam's Razor. The simple solution is to end government involvement in the issuance of marriage licenses and being involved in marriage. In Loving v. Virginia, it was the government that was the problem. In Utah, it is the government that is the problem. To accomplish the foregoing, laws should be written based on the individual; not on sexual cohabitation aka "marriage." It makes no sense to discriminate against single people by giving "married" people special rights and privileges. Once government is removed, and laws are "marriage" neutral, then "marriage" becomes a private ceremony between consenting adults: a celebration is held, witnesses are there, and all who need to know can say that the adults are "married" and everyone else could not care less. No more discrimination using "monogamous marriage". And, btw, why is it fine for homosexuals to demand to be married but for them to deny it to polygamists? This is discrimination as well if the government continues to define marriage and give special rights to those who obey the rules of marriage. Again, applying Occam's Razor, by removing government from marriage, and by making all laws apply to individuals as single people, we end this entire nonsense vis-a-vis whether marriage should be heterosexual or homosexual, monogamous or polygamous: individuals can do whatever they want without the government intruding and call their sexual cohabitation and practices whatever they want: marriage, etc.

  • ||

    And, btw, why is it fine for homosexuals to demand to be married but for them to deny it to polygamists?

    I didn't know that homosexuals were the thin line between legal recognition of monogamous and poly marriage. Those silly vindictive gays hating on the polys!

  • ||

    I didn't know that homosexuals were the thin line between legal recognition of monogamous and poly marriage. Those silly vindictive gays hating on the polys!

    I haven't seen much advocacy from the gay community on the issue, and they seem to hold more or less the same views as their heterosexual compatriots. Which is to say, they find it icky and don't want it legalized. Outside of libertarian circles polygamous marriage isn't even really considered a thing.

  • Fatty Bolger||

    That's a fine libertarian argument, and I'm sold. But until the day comes that marriage becomes a private ceremony between individuals, can we agree that the next most libertarian thing to do is to make same sex marriage equal to opposite sex marriage?

  • ||

    can we agree that the next most libertarian thing to do is to make same sex marriage equal to opposite sex marriage?

    That's no more or less libertarian. It's perhaps more egalitarian (although only very, very incrementally), but that's not the same thing, and they shouldn't be conflated under any circumstance. Fairness is not liberty. And expanding the privileged class by 1 doesn't even constitute real fairness.

  • Zeb||

    I think you will find that most people on here would agree that getting rid of state sanction of marriage would be the ideal solution. But that is going to happen sometime right after heroin is legalized for recreational use. In the mean time, I'll take small things like recognition of gay marriage and treating drug users slightly less brutally.

  • Tony||

    Translation: gays getting married is such a big fucking deal to you that if they get to do it, then nobody should! Also, gays have to answer for polygamists for some reason, even though most of them are straight.

    I welcome your crusade to end marriage altogether. I'm sure you'll be getting off your ass any moment now to start making placards. But up to and after that day comes, the 14th amendment guarantee of equal protection remains in place.

  • Robert||

    I'm all for ending the requirement of a marriage license, just as I am for the requirement of a dog license or auto license. But abolishing the license requirement doesn't provide you with a dog or car! When somebody takes you to court over the issue of whether you're married or whether a car was yours, who cares whether it was licensed? It's the facts of the case that matter.

  • ||

    When somebody takes you to court over the issue of whether you're married...

    Explain any reason why that would happen in the absence of civil marriage? Unless you mean you're dragged into arbitration to settle a contract dispute. But that's not really the same thing, and would work the same way any other contract dispute would.

  • JW||

    "Mawwiage...is what brings us together....today."

  • palmer4||

    my buddy's aunt makes $66 an hour on the internet . She has been fired for six months but last month her payment was $15780 just working on the internet for a few hours. go now......
    http://www.Jobs84.com

  • Robert||

    Yeah, people have been making this analogy, and it's wrong. A legal decree of 2 people of the same sex as each other's "spouse" is not a deregulation of marriage, as in the interracial cases, but rather a corruption of language. The analogy I make is to the decree of the instruments of certain banks as "dollar" (thaler), "pound", "peso", etc., in contradiction to their plain language meaning, which was that of a weight of metal.

  • Tony||

    This language thing is an obvious case of question begging. And preserving the traditional definitions of words is not one of our government's roles, while promoting equality under the law is.

  • Robert||

    Deciding what contracts mean on the basis of the words in them is one of gov't's roles.

  • Notorious G.K.C.||

    "Asking why gays should be allowed to marry asks the wrong question. The right question is: Why should government stop them?"

    No, the right question is, "where are gays being prevented from living together, calling themselves married, etc?" The argument is about "equal rights," not legalization. In other words, it's about whether the government should accord the same privileges/benefits to same sex couples who register themselves as married that it accords to opposite-sex couples.

    So in short, "extending government recognition to SSM" takes more words than "legalize!" but the longer formulation is accurate and the other is not.

  • cavalier973||

    No, the right question is, "where are gays being prevented from living together, calling themselves married, etc?"

    It's not real marriage unless the government says so.

  • Zeb||

    That depends on what you mean by "real marriage" doesn't it?

  • cavalier973||

    It means government-approved marriage, duh.

  • Notorious G.K.C.||

    It's interesting that quoting Judge Bazile's line about God keeping the races separate has become more or less mandatory, so as to suggest that those religious nuts are imposing their definitions on a secular institution.

    Somehow, they neglect to mention that numerous Catholic bishops and some Catholic organizations filed an amicus brief in support of the Lovings. I am not aware of religious groups filing briefs against the Lovings.

    So the most prominent religious nuts in this situation were those defending a constitutional right to interracial marriage. The Loving decision is tainted by pro-interracial marriage influence from theocrats who want to shove their egalitarian interpretation of Christianity down the throats of the good people of Virginia!

  • Notorious G.K.C.||

    And those bishops came from sees in the former Confederate states, or states adjoining these states.

  • Zeb||

    It seems like the Catholics have been more open to racial mixing for longer than protestants have. There is some reason why North America is very white and the parts of America colonized by Catholic nations have a lot more mixed race people and have for a long time.

  • ||

    There is some reason why North America is very white and the parts of America colonized by Catholic nations have a lot more mixed race people and have for a long time.

    The Spanish colonialists took their ball and went home, being a prominent one.

  • AlgerHiss||

    Can two brothers marry one another?

    Can two sisters marry their mother?

    If not, why not?

  • cavalier973||

    They can't because the government hasn't validated their relationship yet.

  • Mickey Rat||

    "In short, supporting straight marriage does not require stifling gay marriage."

    That's not the question on the table though, is it? The pro-SSM side is demanding that the existence of marriage between men and women requires that homosexual couples be given legal recognition. It requires treating differences in sex are as inconsequential as differences in race. It requires androgyny as a legal principle.

  • John C. Randolph||

    The key difference is that government thugs broke into Mildred Loving's house and forcibly separated her from her husband. I'm not aware of anything like that going on anywhere in the United States for several decades at least.

    -jcr

  • Tony||

    The opinion could be virtually rewritten today only replacing "invidious racial discrimination" with "invidious sexual orientation discrimination."

  • HenryC||

    I am not against civil unions giving the same rights and responsibilities as marriage, but by definition more than four thousand years old marriage is between a man and a woman.

  • Tony||

    No longer the case in many jurisdictions now.

  • ||

    Marriage, as Shelby observes, is a fundamental right

    This is an exercise in question begging. Association is most definitely a fundamental right. Access to a piece of government paper entitling the bearers in only particular types of association to privileges from the government... one of those things doesn't sound much like the other to me. At least insofar as one defines "fundamental rights" as negative rights.

  • secularsquare||

    @ The right question is: Why should government stop them?

    You still ask the wrong question. No one can stop same sex couples from marrying. Any couple can find a church, walk down an aisle, and, surrounded by friends and relatives, make pledges of love and fidelity, and be pronounced . . . whatever.

    The right question is why should the state recognize those arrangements?

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