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The People
v. Loving

The People
v. Loving


Forty years after the Lovings won the freedom to marry, gays and lesbians are still denied what the Supreme Court deemed a "basic civil right."

Gov. Arnold Schwarzenegger hasn't yet vetoed AB 43, the California legislature's latest effort to move our state forward with a marriage equality bill. Sadly, yet is the operative word here. He long ago pledged that, just as he vetoed 2005's marriage equality bill, AB 849, he would quash 2007's legislation -- as well as any such measures our elected representatives may pass in the future under his tenure -- and he has declared his mind unchangeable on this issue. Still, marriage equality advocates might quietly wonder, Is he thinking about it?

If so, may I have a word?

Governor Schwarzenegger notes that in vetoing our civil rights he isn't acting out of any strongly held personal convictions; instead, he cites the "will of the people," or at least the 61% of California voters who seven years ago passed Proposition 22, explicitly defining marriage as a union between a man and a woman.

While racist, sexist, and otherwise bigoted laws are routinely reevaluated and overturned in keeping with social progress, measures like Prop 22 and "defense of marriage" acts are held up as exempt from challenge in our current culture. It's a simple numbers game. Most politicians find unpopular minorities neither essential nor profitable to their continued ascent and therefore align with consensus -- the will of the people.

The will of the majority is decisively against us. In May of this year a Gallup poll of more than 1,000 adults revealed that only 46% believed same-sex couples' unions ought to be afforded the recognition and attendant rights of marriage. The picture is bleaker still when the concept of marriage is delineated in "separate but equal" terms: A CNN poll, also in May, found that just 24% among 1,000 adults were amenable to making traditional marriage available to straights and gays equally. Another 27% were OK with recognizing gay partnerships so long as they're called something else -- like civil unions. Meanwhile, a generous 43% said we should enjoy no recognition whatsoever.

So, yes, the "will of the people" speaks thunderously. I suppose it is fairly convenient to believe marriage should be reserved for a man and a woman when one happens to be heterosexual -- an estimated 90%-95% of the population. I imagine it was just as cozy to be racist in the 1960s, when a mid-decade Gallup poll indicated that 42% of Northern whites and 72% of Southern whites supported a ban on interracial marriage. The ratio of whites to blacks at the time was 89 to 11.

History would reveal how unjust it was then to put the rights of a few in the hands of the many. How is it that so many of us have unlearned such a simple, logical lesson?


California's most vocal anti-equality group, VoteYesMarriage, proposes an initiative that would reserve exclusively for heterosexuals not only traditional marriage but any and all civil rights and privileges attached to it. But rather than trusting voters to endorse their end goal -- the repeal of California's existing domestic-partnership law -- the initiative's authors solicit support through manipulative language implying that their intended audience is under attack:

"The People of California have a compelling responsibility to protect the essence of marriage by ensuring that the civil institution of marriage between one man and one woman is not redefined, abolished, or diminished."

The fantastical fallacy that offering marriage equally to all citizens somehow endangers heterosexual marriage is echoed in the names of California's primary anti-equality organizations: VoteYesMarriage and ProtectMarriage. Taking their cue from the "defense of marriage" acts, they rattle a saber at lowest-common-denominator thinkers: "The homos are coming for what's yours!" they seek to shout, as if at any moment a lesbian is going to run up and lick all their Oreos.

VoteYesMarriage's initiative continues:

"The People find that marriage between one man and one woman is diminished when government decreases statutory rights, incidents, or employee benefits of marriage shared by one man and one woman, or when government requires private entities to offer or provide rights, incidents, or benefits of marriage to unmarried individuals, or when government bestows statutory rights, incidents, or employee benefits of marriage on unmarried individuals."

This zero-sum argument, targeting the I-me-mine reptile brain, postulates that any cookies that state and federal governments might offer same-sex couples necessarily reduces the number of cookies that married straight couples will enjoy in the future. Notice that the language seeks not only to forbid actual material losses but "finds" that the benefits of heterosexual marriage are in fact diminished conceptually by the very act of offering material benefits to others. This may be the most honest argument waged against same-sex marriage to date inasmuch as it nakedly acknowledges the greed central to the anti-equality movement.

Elsewhere on VoteYesMarriage's site, the organization's founder, former California state assemblyman Larry Bowler, postures to nail his case shut with the men-and-women-as-God's-puzzle-pieces argument:

"Without going into all the details, it's self-evident that a man and a woman were made to fit together."

Naturally, he can't resist going into the details:

"You need a man and a woman to achieve sexual intercourse. You need a man and a woman for the miracle of procreation, to conceive a baby."

In 1959, Caroline County, Va., circuit court judge Leon Bazile invoked a similar "self-evident" argument when sentencing Richard Loving, a white man, and Mildred Loving, a woman of black and Native American heritage, to a year in prison for having married out of state and returned to their home in Virginia, thereby violating not just Virginia's but God's antimiscegenation law:

"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 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."

Judge Bazile offered to suspend the Lovings' sentence if they'd kindly get out of his state, and they did, moving to Washington, D.C., where they entered a series of lawsuits that eventually brought their case before the Supreme Court. On June 12, 1967, Chief Justice Earl Warren delivered the court's unanimous ruling:

"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," a "basic civil right."

Presiding over some of the most important Supreme Court cases of the 20th century, Warren and his fellow justices bore the burden of looking beyond the popularly accepted mores of their time. That burden proved their good fortune as well, for the Warren court's rulings are the stuff of legacy. Decades on, Chief Justice Warren, who happens to be a former California governor, is regarded among the most influential and important Supreme Court justices in U.S. history, while Judge Bazile and countless like him are remembered only as corrupt guardians of a small-minded, backward status quo.

Governor Schwarzenegger has been given not once but twice the opportunity to put the most populous state in the union at the vanguard of a movement that is, with or without his assent, progressing inevitably toward a fairer future and away from a stagnant past. In choosing to instead hold the discriminatory line, Schwarzenegger vetoes not just AB 849 and AB 43 but perhaps any opportunity he might have had at a meaningful, memorable governorship.

Marking the 40th anniversary of the Loving v. Virginia Supreme Court decision, Mildred Loving this year released a personal statement that included the following:

"My generation was bitterly divided over something that should have been so clear and right. The majority believed what that judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone, they have a right to marry.

"I believe all Americans -- no matter their race, no matter their sex, no matter their sexual orientation -- should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others, especially if it denies people's civil rights.

"I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people -- black or white, young or old, gay or straight -- seek in life. I support the freedom to marry for all."

A generation from now, the term same-sex will seem as quaint and outmoded as mixed-race in describing love relationships, a bafflement to people who think of each other simply as people, couples as couples, marriages as marriages, whatever the gender or race of the partners involved.

Even as our generation shoulders the continued assaults of a smug majority, I can't help but feel that the true losers in the veto of AB 43 are Schwarzenegger and Bowler and some 100 million people across the country who, too scared or too lazy to look beyond popularly held prejudices, gamely take sides in a fight whose stakes quite literally have nothing to do with them. Such champions of inequality are the Judge Baziles of our time, and history is unkind to those who guard whatever backward way of life the masses cling to out of desperation to maintain their tokens of power and privilege.

The almost overwhelming static the anti-equality forces bombard us with daily seems at times so powerful, so insurmountable, but all that noise represents nothing more than the panic of an increasingly irrelevant conservative class. Bigots have always felt that they have no choice but to arrest the past in their efforts to own the present, because they're simply too weak to confront a future that belongs to everyone.

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Teresa Morrison