On Love and Loving - Part I - UPDATE

Same-sex “marriage” is a big topic these days and for good reason: there is a good chance the Supreme Court will affirm lower federal court rulings to throw out California’s Proposition 8, an amendment to the state Constitution approved by California voters to define marriage as a relationship consisting of one man and one woman; the Court is also looking at suits questioning 1996’s federal Defense of Marriage Act (DOMA), a law that allows states to only recognize marriage as they define it and sets guidelines for federal benefits in relation to marriage. One of the arguments used by same-sex “marriage” advocates is that these restrictions on marriage are similar to the restrictions that were removed by the Supreme Court in 1967’s Loving v. Virginia. I have no doubt there are some advocates who truly believe this argument is valid; however, because of the nature of the laws Loving dealt with, most same-sex “marriage” advocates use it as a political bludgeon to equate racial discrimination with opposition to same-sex “marriage”. This couldn’t be further from the truth.

Examining Loving, there are important considerations that must be taken into account. In addition, I learned an awful lot about marriage regulation in this country that I had not even known existed. There are probably lawyers who knew much of this, but I doubt even they know everything about how marriage was dealt with in this country. Part I here will show a broad history of marriage and the law in the United States through the 20th Century. Part II will discuss what has come about in our present century, and the potential threat to religious rights.

Marriage in the United States has always been dealt with at the state level, and for decades, it was pretty much the province of state and territorial legislatures. The federal government, especially Congress, did get involved when it came to dealing with the Mormons in 19th Century since polygamy had been practiced by its adherents since the religion’s inception. Although living in other states, and often persecuted in those states, Mormons eventually established an area of their own in and around Great Salt Lake, an area that had just been added to the United States as a result of the Mexican War (1846-1848). Although being incorporated as Utah Territory, the federal government and the Utah Mormons remained conflicted over the polygamy issue. During the Civil War, the Morrill Anti-Bigamy Act was passed in Congress (and signed by President Lincoln) making plural marriages a federal crime; it was tested in 1878 and affirmed by the Supreme Court in Reynolds v. United States. But usually, and when dealing with non-plural marriage, the federal government did not get involved.

Following the Civil War and for nearly a century, former Confederate states believed they had an interest in preventing marriages between blacks and whites, passing laws criminalizing miscegenation. (UPDATE) Many of these states had passed these same or similar laws going back to colonial times. But along with these states, a majority of other states, including those that had been added after the Civil War, had passed anti-miscegenation laws. Many of those states still had those laws on the books for much of the 20th Century. It was often the case that those who passed and supported these laws believed there was a religious element found in religious texts, primarily the Bible. (/UPDATE) Such was the case in 1967 when Loving was decided. The state of Virginia made a claim that there was no way their law violated the Equal Protection Clause since it treated both blacks and whites the same in charging both parties in a mixed-race marriage with a felony. While technically true, the Supreme Court said, and I agree, the law was an Equal Protection violation as it was targeted to make it a criminal act for blacks to mix with whites, which contradicted the findings of Brown v. Board of Education (1954) regarding segregation and McLaughlin v. Florida (1964) regarding criminalization of the cohabitation by a mixed-race couple.

However, there was no such thing as same-sex “marriage”, that is until the Massachusetts created it for that state in 2003. There had been sodomy laws; in 1986, the Supreme Court deemed them constitutional in Bowers v. Hardwick, which stood for 17 years until 2003 in Lawrence v. Texas. But nothing in any state regarding same-sex “marriage”. The first attempt that I know of where two people of the same sex tried to get married was in the late 1960s in Minnesota. All that happened was that an application for a marriage license was denied, an action upheld by the Minnesota Supreme Court in Baker v. Nelson. Since it was required to be the final appellate review, the U.S. Supreme Court refused to hear arguments to reverse the Minnesota decision and the state court ruling was upheld; since the Court did not take the case via a writ of certiorari (where the Court asks for the review), the U.S. Supreme Court’s unwritten decision was considered a denial on the merits, meaning there was no right to same-sex “marriage” and that lower federal courts must use Baker v. Nelson as precedent. Beyond that, the only similarity between not recognizing same-sex “marriage” and the anti-miscegenation laws is that certain people were not allowed to marry each other. Since no state considered even allowing a same-sex couple to be “married”, there couldn’t be a crime. That is a critical distinction.

I would also add this. Historically, it was normal for the general population to marry someone of the same culture and ethnicity, mostly because those who made up the general population didn’t and/or couldn’t mix with those of different cultures and ethnicities. (UPDATE: It wasn’t as if a serf in Europe with no rights and a family to support could take an excursion to exotic locales. /UPDATE) But those who could, usually royalty and aristocrats (and often, members of the military of a state), often married someone of different a culture and ethnicity, and often for diplomatic reasons. But generally, and especially since the advent of Christianity, the only requirement for a marriage was that it included one man and one woman. As far as I’m concerned, the anti-miscegenation laws redefined marriage by adding in a racial qualification, just as same-sex “marriage” attempts to redefine marriage by modifying the gender qualification.

Loving also made it a point to adhere to something else. While states could not regulate marriage based on race, nor could they allow by omission new features added to the definition of marriage (e.g., plural marriage in Utah by Mormons), state regulation of marriage remained intact. There are a couple of references to a case called Maynard v. Hill, which I’ll discuss more below. Maynard clearly held that marriage regulation was the province of the states that came down from English common law and recognized in Loving. Despite its inherently religious features, marriages in the United States have always been a civil matter subject to regulation by the states, provided those regulations were valid under the Constitution. But even with this fact, how religions view marriage was also protected under the first two clauses of the Bill of Rights, the Establishment and Free Exercise Clauses. That is until what happened in Massachusetts in 2003.

Before concluding this part, I want to mention Maynard v. Hill, referenced in Loving. It had to do with an 1888 case. In 1850, a married man, David Maynard, left his wife Lydia and children in Ohio to go to California, but settled on land in Oregon Territory (at the time of the case, the land was in what was Washington Territory, now Washington state). He applied for a grant as a married man, but was required to wait four years before it would be his. In 1852, Maynard was granted a divorce, while the waiting period on his grant had not yet come to term. By the time the term was completed, Maynard owned the land; however, he had also married someone else. After some hearings in which Lydia Maynard had claimed her rights to a portion of the land, it was determined that half of Maynard’s land would become public and neither Maynard’s first or second wife would have a claim to it. Sometime after both David Maynard and his first wife Lydia had died, their children claimed the land, which led to this ruling. In a 6-2 decision, the Supreme Court stated that because the grant for the land had not yet come to term at the time of the divorce, it was not yet David Maynard’s land, which meant Lydia Maynard could not make any claim to it, nor any of her descendents. The suit was dismissed.

What was really fascinating is how the divorce came about. Today, a married person seeking a divorce would, usually with an attorney, draw up a divorce settlement to be agreed upon by the other married person, who usually is also represented by counsel, and then go to court to have a judge grant the divorce. But in 1852, it didn’t happen this way. As an aspect of English common law, states and territories had their legislatures draw up a divorce and have it passed as any other bill or resolution (this was done in England and the UK as divorces at that time were done through an Act of Parliament). This is what happened with David Maynard as the divorce was passed through the legislature of the Oregon Territory as part of its power to regulate marriage. And divorce. (UPDATE: The latter provides sense to why divorce was so rare. To get one, a person had to have influence with legislators in state and territorial government. This means money. Maynard had money and became a founder of the city of Seattle. Even after the judiciary took over the role of granting divorces, requiring cause meant more money needed to be paid to attorneys to prove it. It also makes one understand why so many were stuck in bad marriages with no way out. As the reasons for allowing divorces became much more relaxed, they became cheaper and more frequent. /UPDATE) As an aside, the whole thing was done without Lydia Maynard’s knowledge, and at one point David claimed his wife was dead, which was obviously refuted when Lydia showed up in a hearing for her claim. She didn’t find out about the divorce until about a year later. But just because David had lied about Lydia being dead, it didn’t mean she was awarded land she couldn’t legally claim since at the time of the divorce, the term of David Maynard’s grant had not yet completed, which is why half of the land became public land and did not revert to any private owner.

What Maynard also shows is that it is very much within the power of a state, provided the Constitution is followed, to have same-sex relations treated as a marriage (the quotation marks around the word are deliberately omitted) according to the law if the legislature or the citizens so wish it. At the end of the 20th Century, no state had enacted such a measure. But during the early part of this century, up to and including the present day, the judiciary has taken over the powers of the legislature, some would say usurped, contra Loving and, I would argue, the U.S. Constitution and all state Constitutions.

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