Interracial Marriage: For The Record
Without a doubt the most common rebuttal I hear after any attempt to defend the Constitution against the lawlessness of the Supreme Court is “what about Loving v. Virginia?”
The argument of the knee-jerk propagandists is that because both interracial marriage and same-sex marriage bans were struck down on the basis of the 14th amendment, they must be substantively identical, while supporting the latter necessarily puts one in the same category as a racist. Nothing has been more powerful for the gay political lobby than the comparison of their own movement to the black civil rights movement. This is because no movement in recent American history has enjoyed greater moral legitimacy.
Four things must be said in response: 1) these issues are not identical; 2) the same fraudulent argument applied in two different cases doesn’t make those cases substantively identical; 3) one can be opposed to something without approving of the method used to eliminate it; and 4) because the issues aren’t identical, one can be in favor of one – say, interracial marriage – and be opposed to the other, i.e. gay marriage.
1. Two separate issues
Interracial marriage in no way contradicts the historical, natural, and universal understanding of marriage. As we are often told by the left, race does not exist. I am not sure if I would use that exact phrasing, but if race does exist, differences between races in no way impede the natural compliment of male and female. They in no way impede the creation and education of children. Thus it is no surprise that most societies have neither recognized “race” as we do, as series of rigid categories, nor have they gone out of their way to prevent people belonging to categories they did not even recognize from marrying.
Zooming in on the Western world, there are no Magisterial statements opposing interracial marriage for Catholics, no councils that oppose it for the Orthodox, and few if any major Protestant groups that oppose it. Opposition to interracial marriage only became an issue in societies that became hyper-conscious of race for various reasons – above all slavery and the need to justify it – in the modern era, typically in the 19th century though earlier in some cases. At that point various religious interpretations, detaching from their own ancient traditions, began rationalizing the practice. Even then, no one proposed that a man and a woman of different races could not, in actual fact, be married; it was because they obviously could that racists sought to prevent it by law with actual punishments and prohibitions. In short: we defenders of traditional marriage understand that it is an ancient and universal institution, while obsession with racial mixing is a rather recent novelty that is in no way essential to our worldview.
Same-sex unions on the other hand are by their very essence opposed to the traditional, natural, and universal understanding of marriage. Whether or not you “care” about this point, is besides my point – that because of this, one cannot say that same-sex unions and interracial unions are substantively similar. From our point of view, considering what we believe marriage to be, they are not.
2. Constitutional fraud
I feel about various cases invoking the 14th amendment the same way Jefferson felt about John Marshall’s abuse of the “Necessary and Proper” Clause of the Constitution. Here is the text:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The fact remains that in both the case of interracial marriage laws and the case of same-sex marriage bans, it is not possible to argue with any semantic or philosophical integrity that “any person” was denied “equal protection” of the laws. In the case of interracial marriage, no one was allowed to marry a person outside of their race. As Pace v. Alabama (1883) found:
On further appeal to the United States Supreme Court, the court ruled that the criminalization of interracial sex did not violate the equal protection clause of the Fourteenth Amendment because whites and non-whites were punished in equal measure for the offense of engaging in interracial sex.
This ruling was absolutely correct, and what was true in this case was also true in the case of same-sex marriage bans. No one could marry someone of the same sex; anyone could marry someone of the opposite sex. There was no “gay” litmus test for a marriage license. The word “gay” does not appear in same-sex prohibitions (to my knowledge). As I have mentioned before, there is no consensus – except, it seems, when it is immediately and politically necessary – regarding what “being gay” even means.
In Loving the court declared:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.
How is it “directly subversive of the principle of equality” when in fact the laws applied equally to all? Who was exempt from the law? Who was singled out by it? The answer is no one. The court’s assertion was factually false then, just as the assertions of gay rights activists and today’s court are also factually false. But it is clear that this semantic devilry does not impart to either phenomenon, interracial marriage or same-sex unions, any sort of substantive similarity.
At this point one can impudently insist that the only reason one would find fault in these rulings is naked bigotry. This brings me to the next point.
3. The ends do not justify the means
As the product of a union that is technically if not legally interracial*, as an adherent of the natural law, and as a person, I do not oppose interracial marriage. I’m so ok with it that I would never base my objection to prohibitions on it upon blatant falsehoods and specious logic the way the court did in Loving.
These prohibitions should have been challenged through the methods of a democratic republic: through the popular initiative, the referendum, and/or the state legislature. There are two reasons for this: first, because this is the lawful established method, the same that was used to acknowledge and protect he right of female citizens to vote. Second, because social change obtained in this way, as opposed to judicial fiat, is more definitive. No one is arguing today over the right of women to vote. We are still fighting battles the Supreme Court thought to “settle” through the imposition of ideology and the deliberate obfuscation of the facts. If the left is to believed, America is now as racist as it ever was. I don’t share that assessment, but to hold this as true is to admit that judicial dictatorship is not the solution to social injustice – unless, and it is terrifying to contemplate how many likely believe this – the dictatorship must become more comprehensive and severe in order to finally achieve its aims.
[* Lebanese and Syrian people lobbied to be recognized as white for official purposes. Some of us do look white and share genetic similarities with Europeans. Some of us don’t.]
4. Our opposition is consistent!
As an adherent of the natural law, I do morally oppose the equivalence of same-sex unions with traditional, natural and universal marriage. But as a Constitutionalist, I was prepared to accept the results of legitimate democratic processes that were consistent with the letter and the spirit of our Constitution. To counter what I believe to be the falsehood of this equivalence, I proposed only to use the same political process along with the political liberties protected in the Bill of Rights. I was also prepared to advocate for either the replacement of marriage with civil unions for legal purposes, or its abolition altogether, both of which would have satisfied all of the practical and legitimate demands of the LGBT movement. I believe I speak for many similarly located on the political spectrum between conservative and libertarian.
Now, however, I feel I must agree with those who made similar warnings about the EU bullying the member states who voted “no” in various elections on the question of EU membership or on the ratification of various treaties: when the central authority tramples upon the democratic process and the republican system of checks and balances, it leaves the people with no other option but to resort to increasingly extreme methods to be heard. We hear the call in various European countries not only for quitting the EU, but also within many of those countries to separate from centuries-old political entities. Secession is the watchword in Europe, and it was once the watchword in the United States and could become again.
We did not, contrary to a ceaseless stream of lies, seek to impose our views by force, or to preserve them by illegitimate means. We believed in and trusted in the process. Once again, that process has been undermined by the Supreme Court, which may be subject to checks in its composition but not in its operation. This cannot be endured forever. Legal positivism is a fiction that the victors in this contest comfort themselves with and hammer the rest of us with. The court has spoken, and there are only two appropriate responses: jubilation or silence. We are here to remind them that might does not make right, and that they rule only at our pleasure.