I just wanted to document, for my own keeping, this article explaining the legal wording behind the recent New York ruling.
Many judges around the country, and around New York, will agree with the legal reasoning used in the decision. And many will not. But this ruling now sets a template for future rulings, from New York's appellate courts and perhaps as well from judges in other jurisdictions. Judges who want to prohibit same-sex marriages will have to get around the Supreme Court's ruling on anti-miscegenation statutes. In this scientific age of insemination, they will have to get around the fact that men and women can find ways to procreate outside of marriage that were undreamed of a century ago. They will have to get around the equal protection argument that posits that the government cannot discriminate against someone based solely upon their sexual orientation.The legal battle over same-sex marriage is still much closer to its start than to its end. In fact, it may still be raging decades from now, much like the debate over abortion rights lingers on a generation after Roe v. Wade. So get used to these arguments and get used to debates over these sets of facts. They are going to be with us, and about us, for a long, long time to come.
anti-miscegenation statutes were the statutes the prohibited interracial marriage.
This paper explains the legal wrangling leading up to the SC decision that struck them down and how that decision is being used to support the right to same sex marriage today.
Anti-miscegenation statues predating the Loving decision were prolific in their adoption and had a far-reaching impact on the American psyche. By criminalizing sex and marriage across the color line, anti-miscegenation laws normalized the “deviance” perceived in such mixed-race relationships, reinforcing the longstanding tradition of policing sexual mores that dates back to the arrival of the first African slaves in the early 1600s. By 1800 interracial marriage was prohibited in ten out of sixteen states. When Dred Scott v. Sandford was written in 1857, Chief Justice Roger B. Taney argued that restrictive laws that forbid interracial marriage were forefront in the Founders’ minds as they drafted the Constitution, demonstrating the Founders’ intention never to extend citizenship to blacks. The Founders, he said, “looked upon [blacks] as so far below them in the scale of created beings that intermarriage between white persons and Negroes and mulattoes were regarded as unnatural and immoral, and punished as crimes.”3 Taney thought that the existence of anti-miscegenation laws in the United States prior to the adoption of the Constitution in 1789 substantiated a constrained form of citizenship for African Americans.4
So, as you can see, these arguments about what the Founders intended when they drew up the constitution - nothing new. Putting laws on the books to block rights - nothing new. When this country was founded, women had the right to vote. It was taken away, state by state, by amendment, until there was a federal amendment. Then, bit by bit, it was won back.
Bigotry always rears its ugly head, but eventually, if we fight hard enough, justice will win out.
Posted by Liz at February 6, 2005 6:48 PM