[PKRWUD]

James-
Thanks for the kind words (I never knew you felt that way, sniff-sniff), but it's cool.


Jim-
I really wasn't trying to twist or contort anything, and I'm sorry you see everything as a tactic. That's why I said you seem like a scared conspiracy theorist. As far as the legal similarities between gay marriages and black/white marriages, this article was in the paper the other day, and I thought it was interesting...

Another marriage ban

In dealing with gay unions, court has a precedent

By Timm Herdt
April 28, 2004

As California's Supreme Court justices move toward the day when they will be forced to confront the most unsettling civil rights issue of the day - gay marriage - they will find themselves on a path their predecessors have trod before.

One thing they will find along that path is an eloquent expression of the prevailing justification for a ban on gay marriages, written by former California Supreme Court Justice John W. Shenk.

In an opinion written in a landmark case, Shenk declared: "The right of the state to exercise extensive control over the marriage contract has always been recognized. The institution of matrimony is the foundation of society, and the community at large has an interest in the maintenance of its integrity and purity."

Shenk wrote that on Oct. 1, 1948, in defense of a California marriage law that stated "no license may be issued authorizing the marriage of a white person to a Negro, mulatto, Mongolian or member of the Malay race."

Shenk was one of three dissenters in the court's historic decision in Perez v. Lippold, which legalized interracial marriages in California.

At the time, it was quite a radical repudiation of a cultural ethic, which, the court declared, was in utter conflict with the Bill of Rights, the 14th Amendment and the Declaration of Independence.

The decision came 19 years before the U.S. Supreme Court came to the same conclusion and a generation before interracial marriages attained broad social acceptance.

Perez v. Lippold has been cited by courts in Hawaii, Vermont and Massachusetts, and in each case those justices have come to the same conclusion about gay marriages that the California justices did about interracial marriages in 1948: There is no valid legal reason to tell an American citizen that he or she must exclude a class of people as potential marriage partners.

The case of Perez v. Lippold was prominent last week in the debate before the Assembly Judiciary Committee before it approved a bill to legalize gay marriage in California.

It is likely that is as far as the legislative effort will advance this year, but the debate made clear how difficult it will be for state Supreme Court justices to fashion a legal justification for a gay-marriage ban.

As San Francisco Mayor Gavin Newsom has noted, even the most strident opponents to gay marriage seem to recognize this. If they didn't fear that the Constitution would lead courts to strike down statutes barring gay marriage, he asks, why are they proposing to amend it?

Newsom may have recklessly decided earlier this year to claim for himself the authority to interpret the Constitution, but the precedents do suggest that his legal instincts were correct.

In 1948, 30 states banned interracial marriages. In his dissent, Shenk noted, "the ban on mixed marriages in this country is traceable from the early colonial period."

The court majority firmly held that such restrictions on marriage do not hold up against post-colonial American views of personal liberty.

Andrea Perez, a white woman, and Sylvester Davis, a black man, sued Los Angeles County Clerk Earl Lippold on the grounds that his refusal to grant them a marriage license violated their right to freedom of religion.

Both were Roman Catholics, and the church had no restriction on interracial marriage. The state ban, thus, prevented them from participating in the sacrament of marriage.

The court's decision was based on broader grounds.

Intrinsic in the right of personal liberty, the court said, is "the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home, and bring up children."

Since the individual right to marry is fundamental, the justices held, "Legislation infringing upon such rights must be based on more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws."

The California Supreme Court is expected to rule this summer on the narrow question of the legality of marriage licenses issued to gay couples this winter in San Francisco.

It will likely take years before a couple of cases challenging the constitutionality of the state's gay-marriage ban move up the judicial pipeline. By then, the justices must privately hope, the issue will have somehow resolved itself politically.

It is not likely that any of the current justices wants to write an opinion that, 56 years into the future, will seem to be what Shenk's 1948 dissent seems to be today: an archaic defense of the socially indefensible.