No They Can’t

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. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. 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.

Loving v Virginia, US Supreme Court 1967

Amid the justifiable celebration over the election of Barack Obama to be the next President of the United States. Amid the self-congratulations of Americans on breaking an important barrier in their politic, and by extension, western politics. Amid the wonder of the moment of what was perceived by some as human progress, an embrace of real change, I was aware that this change was not universal and the embrace conditional.

At the same time that Americans voted for the first non-white President in their history, a monumental and historic change in itself, voters in the state of California voted to eliminate a right for a minority.

Earlier this year the California Supreme Court ruled that California’s existing constitution allowed for marriage between same sex couples, largely through its equal protection clause. Groups who oppose marriage for same sex couples, and wishing to maintain marriage as a heterosexual privilege (rather than the right it is) procured the required number of signatures to put the issue on the ballot for the November election (Proposition 8). Proposition 8 has been passed by the voters, and a right for a minority has been eliminated by the majority – Tyranny by democratic means – for the rights of a minority will almost never be supported by the majority, that is what the courts are for.

There has been some talk out of the US about ‘activist judges’ who make rulings in favour of minorities, in opposition to the wishes or expectation of the majority or those in power. What seems to be forgotten is that it is these very acts of perceived activism by judges, or legislators, who have implemented laws or made rulings (rather than popular vote), that have been the catalyst of the progress in rights that they exhibit pride in. Americans appear to be proud of their Supreme court, yet it was the Supreme Court in 1967 that performed an act of that would today be called judicial activism by redefining the boundaries of marriage in the US, by removing the racial boundaries of marriage. I belive that upwards of 90% of Americans were opposed to inter-racial marriages in the 1960s, yet the Supreme Court (not the voters) ruled anti-miscegenation laws unconstitutional, that there will be no race based restrictions on marriage. This decision leant on the 14th Amendment to the US constitution, its equal protection clause.

In my opinion, limiting the right to marry by race or by sex is to set up a system of arranged marriages. This system demands that one group must marry (if they choose to do so) those from a group of the majority’s choosing, not of the individual’s choice. Such a system is the denial of love and the imposition of power by the majority. The right to marry is no longer limited by race and love between the races is free, but not between those of the same sex. Power has once again been cruelly and unfairly imposed upon the love of same sex attracted people by the voters in California and across much of the United States.

In a country that prides (and advertises) itself as the defender of individual rights and liberites. A country where its very own declaration of indipendence states that it beleives that all men are created equal, and that they are imbued with inalianable rights of life, liberty, and the pursuit of happiness. A country whose courts are the bastion of, and catalyst for, human and civil rights; there is a country who appears to need to oppress someone, even at the level of a basic human right – like that of marriage – the freedom to love the one you love.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Mildred Loving

To paraphrase Barack Obama’s catchphrase during the election -Can Americans fully embrace real change for everyone?

NO THEY CAN’T