Let the States Decide? I Think Not!

This week has been a roller coaster for marriage equality and civil rights advocates.

On Tuesday, voters in North Carolina turned out in droves to put an exclamation mark on the already existing constitutional amendment defining marriage as between a man and a woman.  Amendment 1, passed by 61 percent of the voting public, further defined marriage as “the only domestic legal union” in the state.

Marriage

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

The following day, President Obama gave an interview to clarify his “evolving” position on marriage equality saying that he is personally in favor of it, but that he believes the issue needs to be resolved by letting states decide on the matter.  He went on to say that while it is his personal position, he is not advocating for legislation, nor will it be a central issue in his campaign.

“At a certain point, I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married,” Mr. Obama said.

“I had hesitated on gay marriage in part because I thought that civil unions would be sufficient,” Mr. Obama said. “I was sensitive to the fact that for a lot of people, the word marriage was something that invokes very powerful traditions and religious beliefs.”1

Frankly, this is a further cop out – bigger than his “evolution” on the subject.

When is letting states decide who and who cannot enjoy basic civil rights a good idea?

North Carolina's Constitutional Amendment in 1875

We’ve been down this road before.  States have long determined who has the right to marry and who does not.  At least until the Supreme Court settled the matter for the country in Loving v. Virginia in 1967.  The unanimous SCOTUS ruling struck down anti-miscegenation laws in Virginia and 16 other states that forbade interracial marriage.

Richard and Mildred Loving were banned from the state of Virginia as long as their marriage remained valid.  They were forced to live in exile, away from their families, in Washington DC where they were originally married.

The judge issuing the banishment, Leon M. Bazile, proclaimed that:

"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."

And so the worm turns.  The entire opposition to marriage and who gets to define marriage is steeped in religious ideology.  Belief in god and “holy texts” is the sole driver for opposing marriage equality.

North Carolina did not conduct exit polls during the primary vote on Tuesday, but I would be willing to bet my next paycheck that nearly 100 percent of those voting in favor of Amendment 1 were influenced by their Christian beliefs.

In fairness, I bet a good majority of the 39% voting against Amendment 1 were also Christians (at least in their own eyes – many of the majority voters would likely disagree).

It is unfathomable, to me at least, that African Americans supported passage of Amendment 1 by a 2-1 margin.  Such is the influence of Christianity in African American churches.  It is also hard for me to understand how many Christians, including the President, cite their faith in god as informing their views on this civil rights issue; while other Christians, the majority of Christians, see this as immoral.

My state of Maryland recently passed Marriage Equality legislation; however, it was a bittersweet victory.  Opponents of marriage equality included the provision that the law would not go in to effect until next year – giving the opportunity to make the law the subject of a referendum vote in November. 

Doing so allowed Maryland to not run in to the same legal issues California faced when a federal appellate court overturned Proposition 8 banning same-sex marriage.  The court ruled that the majority cannot take away an existing right enjoyed by its citizens – which is exactly what Proposition 8 did.  By delaying the time when the law goes in to effect, Maryland was able to do what California did not – ensure the people will get to decide on who gets married.

At this time opponents of Marriage Equality in Maryland have more than half the requisite number of signatures to place the referendum overturning the law on the ballot in November - this according to a Catholic organization, which is firmly against the notion of equal rights.

There will be many that say “Good! This is exactly how a democracy should work – let the will of the people be followed!” and they would be unequivocally wrong.

Imagine for one moment that, at the height of Jim Crow, individual states determined the marital rights and privileges of African Americans by a popular vote.  Remember, 17 states in the US in 1967 had anti-miscegenation laws on the book and were enforcing these laws!  However, most of these laws were crafted by state legislatures and not voted upon by the general public – but if they were?  You can bet interracial marriage laws would have continued to be upheld – possibly up to today in some states.

US Census Bureau

This is the problem of presented when proposing to put civil rights to a majority vote.  Social change often comes, even in a democracy, by 10 people in this country:  the President and the nine members of the Supreme Court. 

Harry Truman integrated the military in 1947 – over the objections of his newly created Joint Chiefs of Staff – because it was the right thing to do.  He trusted the institutional integrity of service members to obey orders and do the right thing.

The Supreme Court’s ruling in Brown versus the Board of Education and Loving versus Virginia were also landmark rulings for civil rights and equality in this country.  Had the court not stepped in and applied constitutionally guaranteed rights for all citizens, imagine the state of race relations we would continue to have in this country!  Remember, Congress had passed two major civil rights acts in1964 and 1965 -- prior to the SCOTUS ruling on Loving v. Virginia in 1967.

As such, I try not to get overly worked up over state referendums on marriage equality.  North Carolina’s vote simply shows that the majority of its citizens have strong opinions on marriage, wrongfully influenced, in my opinion, by their religious leaders and their understanding of the god they worship.  Maryland will soon have the opportunity to do the same.

In the end, regardless of the president’s position that states should decide this matter, it will ultimately be for the courts to decide and the Supreme Court – using the same precedent case law that informed its unanimous decision to rule in favor of Loving -- will do the same on marriage equality.  The only question I have is who will be the next Richard and Mildred Loving?