Comparison to Interracial Marriage a Terrible Argument

People love to compare those who want to maintain the traditional legal definition of marriage (one man and one woman) to those who supported laws against interracial marriage in the American South in the first half of the twentieth century.

It’s a terrible argument, but people keep making it, even (most recently) a federal appeals-court judge.

Via Victims of Gay Bullying, the New York Times reports on oral arguments last week in the Sixth Circuit (the federal court-of-appeals district that includes Ohio).

In often caustic questions, Judge Martha Craig Daughtrey, the Clinton appointee, left no doubt where she stood. When the lawyer for Michigan said that the courts should not tamper with an institution as deeply rooted as marriage, she replied that bans on interracial marriage were also deeply rooted before the Supreme Court found them unconstitutional. “That was the law across a huge swath of the Southern states,” she said.

There are two major problems with this argument.  First, the institution of marriage is vastly more “deeply rooted” than racism ever was.  Second, even those who hated interracial marriage never claimed that it wasn’t marriage.

1 — Marriage is universal, racism is particular.

No culture in any time or place in human history (until the late twentieth century in limited parts of Europe and North America) has ever thought that there was such a thing as “same-sex marriage”.  All cultures have had an institution of marriage.  There have been variations on the details—how many wives a man can have, how easy (or how possible) divorce is, and even to what extent homosexual behavior is discouraged or encouraged—but there has never been a definition that called a man and another man “marriage”.

Marriage is the building block of society.  Marriage is universal.  Marriage is older than Christianity.

That’s “deep roots”.

By contrast, the kind of racism expressed in laws against interracial marriage was particular to a certain time and place.  In the larger scheme of world history, America represents just a couple of centuries on one continent; the hang-ups of the early-twentieth-century South are even smaller.

That’s not to say that there hasn’t been racism elsewhere, but racism of the kind that produces laws against interracial marriage is nowhere near as universal (or “deeply rooted”) as marriage.

Mark Steyn put it well on the occasion of the U. S. Supreme Court cases last year.  Forget about the larger context of world history, laws against interracial marriage in the American South were legally and culturally unusual even in the smaller context of the Anglosphere:

If the Right’s case has been disfigured by delusion, the Left’s has been marked by a pitiful parochialism. At the Supreme Court this week, Ted Olson, the former solicitor general, was one of many to invoke comparisons with Loving v. Virginia, the 1967 case that struck down laws prohibiting interracial marriage. But such laws were never more than a localized American perversion of marriage. In almost all other common-law jurisdictions, from the British West Indies to Australia, there was no such prohibition. Indeed, under the Raj, it’s estimated that one in three British men in the Indian subcontinent took a local wife. “Miscegenation” is a 19th-century American neologism. When the Supreme Court struck down laws on interracial marriage, it was not embarking on a wild unprecedented experiment but merely restoring the United States to the community of civilized nations within its own legal tradition.

As Steyn points out elsewhere, Justice Kennedy himself—not one of the most conservative members of the court—alluded to this history during oral arguments, concluding, of Mr. Olson’s argument, “so that’s not accurate” (page 49, lines 9-19).

2—Everyone always agreed that interracial marriage was, by definition, marriage.

People casually assume that laws against interracial were like so-called “bans” on same-sex marriage today—a couple goes to the justice of the peace and applies for a marriage license, is denied, and sues the government to demand that the license be granted.

In fact, under the laws against interracial marriage, things were very different:  In the beautifully named (God has a sense of humor?) 1967 case of Loving vs. Virginia, the couple successfully got married—and were arrested, prosecuted, and sentenced to a year in jail!

From the facts of the case:

In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, [1959], the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years.

The fundamental difference that people don’t understand is that the laws currently at issue merely maintain the definition of marriage as it has always been, involving a man and a woman.  Anything outside of that is, by definition, not a marriage, not possible.  That’s why it’s so misleading to call these laws a “ban” on same-sex marriage.

By contrast, those who passed laws against interracial marriage understood themselves to be trying to stop something that was otherwise very possible.  Here are sections from the Virginia statute that the Supreme Court struck down when it declared laws against interracial marriage unconstitutional in Loving (from notes 3 and 4 of the court’s opinion):

Section 257 of the Virginia Code provides:

Marriages void without decree. — All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.

Va.Code Ann. § 20-57 (1960 Repl. Vol.).

[Note 4]

Section 20-54 of the Virginia Code provides:

Intermarriage prohibited; meaning of term “white persons.” — It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. . . . All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.

Va.Code Ann. § 20-54 (1960 Repl. Vol.).

“Prohibited”, “shall be . . . void”, “It shall hereafter be unlawful”—the law really was trying to “ban” and criminalize interracial marriage.

Unlike those laws, we’re not trying to put anyone in jail.  People are free to make whatever private relational and sexual arrangements they would like.  (The Supreme Court has considered anti-sodomy laws unconstitutional since 2003; they’re not at issue here.  There’s no question of taking away anyone’s freedom to do what he wants.)  Traditional-marriage laws don’t “prohibit” or “ban” anything.  They merely clarify and maintain that the definition of marriage, for purposes of government, remains as it has always been, throughout American history and the history of the West in general: one man and one woman.