This morning, the Maryland Supreme Court upheld the state statute which defines marriage as a union between a man and a woman in a 4-3 decision.
The court found that 1) the statue does not discriminate on the basis of gender 2) that sexual orientation is neither a suspect or quasi-suspect class, whereby discriminatory laws require a higher scrutiny 3) that there is no fundamental right to marry a person of the same sex and 4) that the statute in question is related to a legitimate state objective, that is, upholding traditional marriage.
I’m not familiar with the intricacies of the Maryland constitution, but I’m going to offer some thoughts on point 3 it relates to the United States constitution (and maybe some of the others in future posts, time permitting).
The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition,” and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.
Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.
The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.
Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.
Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes” The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.
The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.
Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.
All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.
At the rally that took place this evening in Baltimore, following this sad, but still momentous, decision, the mood was somber but hopeful. It was telling to be there, on the corner of Franklin and Charles streets and have every fifth or so car beep their horn in the support of the few hundred miserable homos, queers, dykes, mothers, straight friends and supporters etc. One of the most moving moments was an elder African American man who, on taking the mic, said… “I know this is disappointing. I know this must seem like the end… But I’ve stood here before. I’ve stood here before”. The words rang in my ears.
Since I’m from Canada my exposure to the marches on Selma, later D.C., and MLK and the Civil Rights movement have been largely text book in knowledge. The eight years I’ve spent here in the States has certainly augmented that knowledge, as has, of course, my “interracial partnership”. But this person was there and so we weren’t talking about “history” we were talking about hope of real experience. And for the first time I think I truly felt the hand of another oppressed group lifting us LGBT people up from our sorrows, our disappointments. This of course is not the first time this alliance has come together, but it was so warmly felt and so sincerely share one could not help but feel the “arc of justice” will come our way, one day.