by Peter Sprigg
May 27, 2009
On May 27, prominent attorneys Ted Olson and David Boies (best known as one another’s opponents in Bush v. Gore, the court case regarding the disputed 2000 presidential election) announced that on May 22 they had filed a federal lawsuit seeking to establish a right to same-sex “marriage” nationwide under the U. S. Constitution.
In a press release and press conference, they cited as precedent the Supreme Court’s 1967 ruling in the case of Loving v. Virginia, which struck down laws against interracial marriage (Loving v. Virginia, 388 U. S., 12; online ). They claimed that because of this precedent, homosexuals must be “guaranteed the right to marry the person they love.”
However, the U. S. Supreme Court in Loving never described the issue in that case as an unrestricted “right to marry the person they love.” Instead, it said that “the freedom of choice to marry [cannot] be restricted by invidious racial discrimination.”
The comparison between interracial marriage and same-sex “marriage” was concisely refuted in a 2003 Indiana court decision rejecting the claim of a right to homosexual “marriage.” As the judge noted,
Unlike anti-miscegenation laws, restrictions against same-sex marriage reinforce, rather than disrupt, the traditional understanding of marriage as a unique relationship between a woman and a man. Marriage traditionally and definitionally has had to do with the sex of each participant… . Anti-miscegenation laws, because they interfered with the traditional marriage relationships in pursuit of opprobrious racial segregation policies, had no legitimate connection to the institution of marriage itself. Loving in no way held that the right to marry means the right to marry whomever one wishes. Its import is far more focused: that whatever else marriage is about, it is not about racial segregation. (Morrison v. Sadler, Marion County, Indiana Superior Court, May 7, 2003; online)
The strong legal basis for the distinction was described by another court that rejected a homosexual challenge to marriage laws, this one in New Jersey:
Plaintiffs’ reliance on decisions striking down statutes that prohibit interracial marriage is misplaced. These decisions derive from Constitutional amendments prohibiting racial discrimination and subjecting laws that classify individuals based on race to the highest level of scrutiny. No similar Constitutional provisions outlaw statutory classifications based on sexual orientation … . Comparing the State’s marriage statutes to laws perpetuating racial prejudice, therefore, is inapposite.
Individuals challenging bans on interracial marriage had a powerful weapon: Federal Constitutional provisions, passed by Congress and adopted by State Legislatures, that expressly prohibited States from denying recognized rights based on race. It was entirely appropriate for the courts to enforce those duly enacted Constitutional provisions by striking down statutes that made race a qualifying condition for access to a recognized right to marry. Plaintiffs, on the other hand, assert their claims in the absence of express Constitutional provisions supporting their position, and ask the court to circumvent the Legislative process by creating a right that has never before been recognized in this country.
The mandate for racial equality is firmly enshrined in both the Federal and State Constitutions. Importantly, two amendments to the United States Constitution expressly address racial equality [the 13th and 14th]… .
The Supreme Court’s decision in Loving v. Virginia is predicated entirely on the Fourteenth Amendment’s prohibition of racial classifications… .
No similar Constitutional provision accords heightened protection to individuals who claim that statutes discriminate on the basis of sexual orientation… .
… [P]laintiffs … lack the significant legal foundation that was available to the plaintiffs in Loving to demand judicial recognition of the rights they seek.
(Lewis v. Harris, Superior Court of New Jersey, Mercer County, November 5, 2003; online )