From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of alturo rhymes Sent: Friday, November 07, 2008 8:38 PM To: NupeNet; New York City Black Greek Lettered Orgs; NPHC Inc Listserve Subject: [NPHC] Kapitol Hill Blog: Not "Loving" Equal Protection in California
EXCERPT FROM LATEST BLOG COMMENTARY:...To read entire post logon to <http://www.kapitolhill.typepad.com> www.kapitolhill.typepad.com <http://kapitolhill.typepad.com/kapitol_hill/2008/11/not-loving-equal-protec tion-in-california.html> Not "Loving" Equal Protection in California On the very day that 53 percent of the country voted to elect the nation's first African-American as President of the United States -- wiping away more than 200 years of sanctioned racial barriers and providing Barack Obama with a landslide in the Electoral College -- which coincidentally was instituted to give slave-holding states more political influence -- a similar percentage of voters in California was voting to take away a civil right of other citizens. If the electorate hasn't heard about the results regarding <http://abcnews.go.com/Politics/wireStory?id=6185755> Prop. 08, it might be because the country is still aglow at the historic and significant movement the United States made in deciding that it would fulfill Martin Luther King Jr.'s dream of "judging people by the content of their character but the color of their skin." Newspapers across the country created memorable and remarkable front pages using headlines, which alluded to the profound progress. The nearly 57 million voters who went to the polls on November 4th clearly enabled that dream and each voter who participated in the election should be proud of such an occasion. But that pride is muddled by the contradiction of California voters' decision to deny that same right to gay and lesbian citizens. Proposition 8 was a petition driven law to ban same-sex marriage putting the already 18-thousand same-sex marriages cosigned by California law in jeopardy of being legally recognized by state agencies and the companies these couples work for in terms of benefits and services. The contradiction of accomplishing one historic dream and dashing the hopes of others is even more disturbing by the fact that 70 percent of African-American voters in California approved the notion that a section of the American population should be denied the very right that the Constitution granted them in the fourteenth amendment and certified by the Supreme Court in the 1967 case Loving v. Virginia. Loving centered on the case of Mr. and Mrs. Richard Loving -- a white man and a black woman who were arrested in violation of a Virginia law that prohibited interracial marriage. The Supreme Court ruled correctly that the federal rights of individuals under the Constitution forbids states from enacting laws prohibiting a citizen from conducting themselves in the exact way as other citizens merely because of their race. In other words, if White citizens have the right to marry Whites and Black citizens have the right to marry Blacks, then Black citizens have the right to marry White citizens. There are some who believe that Loving has no barring on the issue of same-sex marriage and believe it is a case of apples and oranges. That is a hypocritical belief used by those who wish to debate moral arguments versus legal ones. No one is suggesting that Churches cannot exercise their first amendment rights to freedom of religion by denying same-sex marriage theological sanction; but if we grant that right to religious institutions to not condone such marriages, we must also grant the same weight to the legal rights of individual citizens under the fourteenth amendment. The Constitution is a whole document -- not one that can be cut and spliced when our individual moral fibers are frayed. It was just eight years ago that Alabama became the <http://archives.cnn.com/2000/ALLPOLITICS/stories/11/07/alabama.interracial/ > last state in the Union to erase its interracial ban in 2000. So how draconian was the Virginia anti-miscegenation statute? It stated: "If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years." While no one has suggested that same-sex couples be placed in jail for sharing wedding vows it is important to note that 16 other states in the 1960s had the same laws on their books. This is significantly similar to the various same-sex bans being approved today. In the 1960s supporters of such laws cited concerns such as: interracial marriages will destroy the sanctity of the institution; they decried the act as immoral and against the will of God -- all too modern arguments used today to denounce same-sex marriage. If the country wishes to have a highly emotional debate over the morality of marriage that is one thing but once the argument seeps into individuals legally protected constitutional rights it becomes a non-emotional one where the scales of justice must be equal for everyone. Are we ready to say that homosexuals are not full citizens -- is anyone ready to proclaim perhaps they are merely three-fifths of a person? Chief Justice Earl Warren writing for the majority, which was unanimous, <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1> said this of Loving: "the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment."... and he continues..."we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose." ..and further he adds... "There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." ... and finally he concludes... "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy... Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." Lest we as a nation wish to engage in Heterosexual Supremacy we need to be very careful of the message we send out. Marriage is not an institution that is merely sanctioned by one's church -- no one believes atheist can't marry or polygamy ordained by churches is not illegal -- No, marriage is a legal partnership defined by legislation and protected by the Constitution. To suggest the State has a right to define who can participate in this action is to suggest that Earl Warren and the Supreme Court was wrong and Virginia and its Deep South partners in interracial marriage bans were actually correct. If that is what we are to conclude then we must realize that Barack Obama might not have ever gotten the opportunity to be President and the 70 percent of Blacks who supported Prop. 08 might not have ever had the right to vote in the first place. Kapitol Hill publishes a new commentary each week. Please feel free to leave a comment and don't forget to check back next week.
