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The People
v. Loving

The People
            v. Loving

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?

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

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.

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

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.

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

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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