Gay is the New Black
HOW THE BLACK COMMUNITY HAS BOUGHT INTO CHRISTIAN PROPAGANDA AGAINST THE FINAL CIVIL RIGHTS FIGHT
“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.”
— Mildred Loving1
I. INTRODUCTION
Despite Mildred Loving’s all-embracing statement celebrating the fortieth anniversary of the landmark Loving v. Virginia decision in 2007, the black community’s general homophobic tendencies showed themselves all too well just one year later in the 2008 elections. In both California and Florida, blacks helped tip the scales in passing anti-gay marriage provisions, while gays helped elect the country’s first black President. Hypocritical white evangelical Christian forces capitalized on a heightened religiosity in the black community, while blacks ignored the hypocrisy of their own marriage failings. The gay community failed as well. In not reaching out to these black communities specifically, gays missed an opportunity to show blacks how their current struggle for marriage rights emulates, but in no way duplicates, those of past civil rights struggles. These two minority groups should be able to come together in support of each others’ efforts in achieving individual rights for all.
II. THE BLACK COMMUNITY’S OPPOSITION TO GAY MARRIAGE
A. CALIFORNIA’S PROP 8 AND THE 2008 ELECTION
GAY IS THE NEW BLACK. These words in large, white block letters on a stark, black background emblazoned the cover of The Advocate, a gay-rights magazine, shortly after the passage of California’s Proposition 8 (“Prop 8”) in 2008.2 The morning of November 5, 2008, was bittersweet to millions of gay and lesbian Americans — the country had its first African-American President, yet three states on the same day passed hateful legislation banning same-sex marriage.3 The blow was especially hard on Californians, who had previously been granted their fundamental right to marry earlier in the year by the California Supreme Court.4
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Image Copyright Guillaume Paumier (Flickr), 2011[/caption]
While the gay community of California had voted a strong 70% for Barack Obama, the black community returned the favor in kind with a 70% yes vote for Prop 8, thus helping seal the fate of same-sex couples’ new-found freedom.5 The proposition passed with 52.3% of the overall vote, with Hispanics at 53% in support, and whites and other groups at 49%.6 Much debate occurred in the aftermath of the election as to whether the high black “yes” vote actually tipped the scales for passage.7 But as these percentages clearly show, had it not been for the African-American and Hispanic yes votes combined, Prop 8 would not have passed.8 With a terrible history of slavery and discrimination against African-Americans in the United States and the more recent hate-filled rhetoric against immigrants to this country, one has to wonder why these two minority groups would themselves discriminate against another minority group — gay Americans.
B. THE RELIGION FACTOR
The reason can be easily summed up in one word: religion. Specifically, evangelical Christianity, and even more specifically in the case of Prop 8, the Church of Latter Day Saints (“LDS”), also known as the Mormon church. The Utah-based institution contributed over $16 million promoting the measure.9 These efforts heavily targeted black churches in hopes that large turnouts for Obama would lead to more votes for Prop 8.10 But while the Mormon church is not exactly shy when it comes to its position on same-sex marriage and homosexuality in general, it does tend to hide and deny decades of racial discrimination against the very people whose religious beliefs it now capitalizes on in imposing its discrimination of gays.11 What’s more, the rhetoric is eerily familiar.12
The Mormons however do not have the corner on the exploitation of blacks when it comes to religion. For centuries slave owners used Christianity as a way of taming African “savages” and making them better workers for their masters.13 Eventually, black slaves found solace in this forced-upon faith, giving them the courage to endure unimaginable treatment by the very people instilling it.14 Early American white Christians used the Bible to justify the denial of even personhood of blacks, let alone slave and interracial marriage.15 How else could “Christians” inflict such brutality?
Today, blacks have a generally higher level of a predominantly Christian religious faith than the rest of the population in the United States.16 Almost 90% of blacks have an absolutely certain belief in God, compared to just over 70% of the entire U.S. population. Close to 80% of blacks rate religion as very important in their lives and approximately 55% interpret Scripture literally, compared to just 57% and 32% respectively in those areas overall.17 In the Civil Rights movement of the 1960s, religious clergy often provided leadership to the black community in its fight for equality.18
Dr. Martin Luther King, Jr. looked to white Christians for support in the commonality of their beliefs,19 just as the gay community looks to blacks for support in the commonality of the prejudices and hatred both groups have endured. But, white churches refused to support the black community,20 just as blacks today refuse to acknowledge gay civil rights. Instead of waiting for popular opinion to turn, it was the government that finally and reluctantly secured black rights.21 So too will government, most likely through the courts, finally provide marriage rights to the gay American community.
C. PICKING AND CHOOSING FROM THE BIBLE
In explaining their refusal to support gay rights, black community leaders chime in with leaders of white Christian churches, including the Mormon church, citing certain Bible verses in determining that homosexuality is “an abomination.”22 Leviticus 18:22 declares: “Do not lie with a man as one lies with a woman; that is detestable,” while Leviticus 20:13 bumps it up a notch with: “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.”23 Some have interpreted Romans 1:26 to be the only Biblical reference to lesbian sex: “Even their women exchanged natural relations for unnatural ones,” while the remainder of the chapter refers to general evil deeds deserving death, including men engaging in gay sex and those who “disobey their parents.”24
Christian leadership fails to look at this last dastardly deed, along with other acts punishable by death in the Bible when determining who should or shouldn’t be doing what in today’s society. Leviticus 20:9 dictates: “If anyone curses his father or mother, he must be put to death,” while Leviticus 19:19 instructs: “’Do not wear clothing woven of two kinds of material.” Many younger folks in today’s society would be in trouble with Leviticus 19:28, which commands: “Do not…put tattoo marks on yourselves.”25 The Bible also makes references to God separating the chosen people from those of other nations and forbidding the intermarriage thereof.26 Some even today see this as justification for anti-miscegenation.27 Finally, Matthew 19:9 quotes Jesus himself: “I tell you that anyone who divorces his wife, except for marital unfaithfulness [of the wife], and marries another woman commits adultery.”28
III. BLACK AND CHRISTIAN HETEROSEXUAL HYPOCRISY
A. MARRIAGE AND DIVORCE RATES
This last biblical provision not only displays the inadequacies of literal biblical interpretation in today’s society — very few divorces are a result of the wife’s infidelity29 — but it also highlights the hypocrisy of heterosexual Christian dogma in general and the black community’s attitudes specifically when it comes to marriage and the “sanctity” thereof. One has only to look at pop singer Britney Spears to know that in today’s society “sanctity” and “marriage” no longer necessarily coincide. Her marriage to childhood friend Jason Alexander was annulled after only 55 hours.30 The bride wore jeans and a baseball cap, and both parties admitted that it was a joke they had taken too far.31
According to 2002 Census Bureau statistics, the marriage rate in the United States decreased 30% from 1970 to 2002, while the divorce rate increased by 40%.32 In 2000, more adults lived alone than with a spouse and child(ren), while the country saw a 72% increase of unmarried couples living together between 1990 and 2000 (a tenfold increase from 1960).33 This trend is probably a result of the fact that 43% of all first marriages in the United States end within 15 years.34 The statistics only get worse for black couples. While 74% of white children were living in a two-parent household in 1998, only 36% of black children lived in the same situation.35 Finally, in the so-called “red” states, where religion tends to be more prevalent, the divorce rate was 27% higher than the U.S. average in 2002.36
With a divorce rate more than twice as high as whites’ and Hispanics,’37 and an increasing number of blacks, both male and female, never marrying,38 it would appear that a majority of blacks no longer generally believe in the institution of marriage, at least not in practice. So why does the black community try to protect and defend that which it no longer believes in and practices? Heterosexuals have nothing to lose in the legalization of same-sex marriage, and blacks in particular have nothing to gain from the prevention of gays marrying. On the other hand, white evangelical Christian men have much to gain from keeping gay marriage an issue at the forefront of political debate — just as Southern white plantation owners had much to gain from denying the personhood of slaves.
B. DEFINITION OF MARRIAGE ARGUMENT
Beyond the biblical references, heterosexuals of either race have used the argument that the definition of marriage, while not official until just recently in the United States, has historically been between a man and a woman.39 Some argue that to allow same-sex couples the privilege of calling their unions “marriage” would redefine 200 years of tradition in this country. In a legal sense however, all that is necessary to marry are 1) that the parties be legally capable of contracting to marry, 2) that there is mutual consent between them, and 3) that a contract results.40
Eleven states and the District of Columbia authorize common-law marriages, where no contract or ceremony takes place. In these arrangements, couples (heterosexual, of course) simply live together and agree to and do hold themselves out to others as husband and wife.41 All states, not just those where common-law marriages are legal, must legally recognize these marriages under the Full Faith and Credit Clause of the U.S. Constitution, even if they are contrary to the public policy of the state.42 These unofficial “husbands and wives” are by law provided the same rights and benefits as those with official documentation married in churches or by judges. However, because of the Federal Defense of Marriage Act, states do not have to give full faith and credit to same-sex marriages, even those licensed and with the advantage of public ceremony performed in states where gay marriage is legal.43 This gives an unofficial, common-law marriage more legal clout than an officially licensed and performed same-sex marriage.
In further exploring definitions and readdressing Mormon hypocrisy, polygamy or plural marriage was only condemned by the Church of Latter Day Saints 100 years ago.44 The church also has a history of allowing for the rape and incest of child brides. As recently as 2007, the leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) was given two consecutive 5-year to life sentences after being convicted on two counts as an accomplice to rape.45 Globally, while not often practiced due to supply and demand principles, polygamy (specifically, one husband with multiple wives) is the preferred type of marriage for 75% of the world’s cultures.46 So not only do definitions change over time and from religion to religion, they also change from country to country.
C. DEFINITIONAL EVOLUTION
The definition of “Negro” in the United States has a rocky history. From 1625 to 1864, over a span of 239 years, blacks were considered property, not human beings.47 On several occasions, courts referred to them as such, and even black freedmen had no legal standing in U.S. courts of law.48 Free black men could not “stand witness in their own defense against the testimony of any Euro-American.”49 As “things” and not “people,” “Negro servants” or slaves did not possess their own bodies — their masters did. Yet, if they chose to commit a crime using their bodies for their own free-will purposes, they could be charged and convicted of a crime, thus creating a legal “dual status.”50
As Negros were property and not human beings during the first two centuries of this country’s history, it made sense that slaves would not have the right to marry during that time. The “ban on slave marriage was rooted in a fundamental refusal to provide social recognition to the humanity of slaves.”51 While many equate the current fight for the legalization of same-sex marriage to the efforts to eliminate anti-miscegenation laws in the early and mid-twentieth century, some see a closer relationship to earlier, post-slavery marital rights for blacks.52 A key similarity is in the state-by-state handling of marriage for newly-emancipated slaves. Some states legislatively recognized current slave unions as civil marriages, while others passed legalization that allowed marriage for former slaves.53 This mirrors recent state legislative activity in legalizing civil unions and ultimately marriage for same-sex couples.54 Also, just as the gay community does today, the post-slave community saw marriage rights as a way of establishing and maintaining family strength as well as acquiring political autonomy.55
A key difference between the legalization of post-slavery marriage and the fight for the legalization of gay marriage today is in the sudden importance some states, especially in the South, placed on legalizing marriage for emancipated slaves. The same Southern states that had staunchly opposed the personhood of slaves now could not see them legally marry and legitimize their families fast enough.56 These states played the morality card in encouraging freed slaves to marry and take care of their families in fear of blacks becoming a burden on their economies.57 Some conservatives today actually promote gay marriage out of a similar concern for the “morality” of same-sex couples in the hopes that gays will lead a “more responsible and moral lifestyle.”58 That voice, however, is drowned out by the overwhelming majority of white evangelical Christians, who now as then in regards to slave marriage, devalue gay relationships and blame their lack of marriage somehow on their own “immorality.”59 One would have to wonder, in a country where 49 out of 50 states have some form of legalization of gay adoption,60 why states are not rushing to pass laws to legalize gay marriage to legitimize and instill morality in these families — especially those with children — as they did for freed slaves in the 1800s.
The last definitional chink in the chain or evolution of marriage in the United States involves the legalization of interracial marriage, which has been much more associated with the gay marriage fight. In 1883, the U.S. Supreme Court set the standard in Pace v. State of Alabama. In that case, the court reasoned that because both whites and blacks were treated equally under Alabama’s anti-miscegenation or anti-interracial marriage law, there was no equal protection violation of the Fourteenth Amendment to the U.S. Constitution.61 It would be another 65 years before a dent would be put into that decision in the courts. In Perez v. Lippold, the California Supreme Court struck down a state law criminalizing and prohibiting “[a]ll marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes[.]”62 Here the court looked at the Due Process clause of the Fourteenth Amendment and determined that marriage, like procreation, was a fundamental right.63 A trend started soon after in states overturning their anti-miscegenation laws in favor of allowing interracial marriage,64 leaving the fate of interracial couples to marry piecemealed in the hands of the states in their Tenth Amendment “police power” of regulating the health, welfare, safety, and morals of the state.65 That all changed with the U.S. Supreme Court’s 1967 landmark decision in Loving v. Virginia.
D. INTERRACIAL MARRIAGE AND LOVING V. VIRGINIA
On a hot summer’s night in 1958 Virginia, Richard and Mildred Loving were awakened from their marital bed and arrested for “marrying the wrong kind of person.”66 He was white; she was black. The Lovings pled guilty and were sentenced to one year in jail. Upon suspending their sentence, the trial judge stated that:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”67
In overturning the trial court’s decision, as well as the Pace ruling, the U.S. Supreme Court looked at the racial classifications of Virginia’s statutes and imposed a heavy burden on the state to justify its anti-miscegenation laws.68 While the Court touched on the fundamental right to marriage, its reasoning for this heightened scrutiny in this case was based solely on race.69 The Court concluded that such laws were “designed to maintain White Supremacy” and served “no legitimate overriding purpose independent of invidious racial discrimination” in prohibiting only those interracial marriages involving whites.70 Loving automatically overturned an additional 15 — mostly Southern — states’ anti-miscegenation statues and officially legalized interracial marriage across the board in the United States.71
It is the “white supremacy” argument of the Court that some use in determining that Loving is not synonymous with — or at least not the best analogy for — the efforts to legalize gay marriage.72 Some look at the immutable nature of their own black skin and differentiate gayness as a non-immutable trait.73 Some simply do not relish the comparison of the gay civil rights fight to the civil rights movement of the 1960s because gays have not suffered as much at the hands of the white Christian majority.74 However, while Loving does not fully make the case for legalizing same-sex marriage, no one can argue the fact that it does parallel (as noted in the trial court judge’s own words) the religious tone of opposition at the time with current religious arguments against gay marriage today.
IV. NOT IF BUT WHEN: MARRIAGE AS A FUNDAMENTAL RIGHT
A. ZABLOCKI V. REDHAIL
The main problem with incorporating Loving into the gay marriage argument is the fact that a class based on race is clearly a suspect class to the courts — a criteria which subjects state action and state laws to the highest form of scrutiny — while a class based on sexual orientation is at best quasi-suspect and therefore subjects state action and laws to a lesser standard of review.75 The Court in Loving looked almost exclusively to the race aspect in determining that Virginia’s anti-miscegenation laws did not have a “compelling interest” in discriminating against interracial marriages.76 Because “sex classifications” are usually associated with gender and not sexual orientation, it is debatable as to whether anti-gay marriage laws would be subject to even an “intermediate” review, where the Court would have to find at least “a ‘substantial relationship’ to an ‘important’ government interest.”77 In some cases, the Court has not been clear in which standard of review it has applied; therefore, it is possible that in a situation where a class based on sexual orientation has been discriminated against by the state — such as in the state denying marriage certificates to same-sex partners — a state need only prove “a ‘rational relationship’ to an end of government that the Constitution does not prohibit.”78
This was the apparent standard used in Baker v. Nelson, a 1971 case heard by the Supreme Court of Minnesota, in which a gay couple was denied a marriage license by the state.79 The court indicated that “[t]here [was] no irrational or invidious discrimination” when it determined that the state’s classification of who could marry did not offend the Equal Protection clause of the Fourteenth Amendment.80 The petitioners/appellants relied on Loving, inter alia, in making their case that marriage is a fundamental right of which they were being deprived. The court alluded that there was no fundamental right to same-sex marriage, and that the two gentlemen in question could marry — just not each other.81 Finally, the court dismissed the Loving analogy because of the state’s “patent racial discrimination” in that case as well as the Supreme Court’s quoting of previous cases that appeared to link the fundamental right aspect of marriage to procreation (Biblical reference included).82 Opponents of gay marriage look to this link in concluding that marriage is a fundamental right only as it pertains to procreation.83 However, considering today’s in vitro fertilization technology, surrogacy, and the general acceptance of gay adoption, combined with the fact that heterosexual elderly and non-procreative couples (whether barren or by choice) are free to marry; that argument no longer holds water.
Another U.S. Supreme Court decision, in which the fundamental right of marriage takes center stage, makes a much stronger argument for the legalization of same-sex marriage. In the class action case of Zablocki v. Redhail, a Wisconsin man challenged a state statute that forbade anyone owing court-ordered child support from marrying without court approval.84 The state in passing the law had a rational reason for such a statute — to prevent the children of so-called “dead-beat dads” from becoming wards of the state.85 After being denied a marriage license, Redhail, who could not afford to pay child support, sought declaratory and injunctive relief and filed a civil rights claim, asserting that the statute violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.86
In affirming the district court’s ruling that the statute was unconstitutional, the Zablocki Court agreed that strict scrutiny was warranted in this case because “the classification created by the statute infringed upon a fundamental right, the right to marry.”87 The Court went further to stress that “the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that ‘critical examination’ of the state interests advanced in support of the classification is required.”88 The Court concluded that “[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.”89 Here, the Court did not find such support.
Marriage is so fundamental to the Supreme Court that even if those Zablocki dead-beat dads end up in jail, they still have the right to marry. In Turner v. Safley, the Supreme Court ruled that a Missouri prison regulation restricting inmates from marrying while incarcerated was unconstitutional.90 The Court looked at four other “prisoners’ rights” cases in determining that the lower, rational basis standard of review applied to inmates as a class, even though the rights being determined were the constitutional right to free speech and the fundamental right to marry.91 The Turner Court concluded that while the state did have a rational reason for restricting inmate-to-inmate correspondence (security reasons, such as communicating plans of escape), the marriage regulation had no “reasonable relationship standard.”92 Therefore, even at a rational basis review standard, the state could not justify the restriction of something so fundamental as marriage. Yet, in all but two states in the U.S., prisoners do lose their fundamental right to vote, and in some cases never have it restored, even after incarceration.93 Consequently, one can surmise from this that marriage is more fundamental than a free citizen’s right to vote in this country, and to deny such a right would and should require the strictest form of scrutiny.
The Zablocki Court also acknowledged the right to marry as part of the “fundamental ‘right of privacy’ [‘older than the Bill of Rights’ itself] implicit in the Fourteenth Amendment’s Due Process Clause.”94 It is this fundamental right to privacy that provides one the fundamental right to marry, and as the Supreme Court’s decision — or most notably Justice Scalia’s dissent — in Lawrence v. Texas indicates, this privacy right could be the gay community’s strongest argument in justifying the legalization of same-sex marriage.
B. LAWRENCE V. TEXAS
Responding to a weapons disturbance, officers of the Harris County Police Department in Houston, Texas entered the home of John Geddes Lawrence and found him engaging in a sexual act with another man, Tryon Garner.95 The two were charged with and convicted of “deviate sexual intercourse, namely anal sex, with a member of the same sex (man)” per Texas Penal Code § 21.06(a).96 The Court of Appeals rejected the petitioners’ equal protection and due process arguments, citing the Supreme Court’s 1986 decision in Bowers v. Hardwick as controlling on the issue.97 The Supreme Court granted certiorari and addressed whether the Texas law violated the Fourteenth Amendment’s Equal Protection Clause in criminalizing only gay sodomy, and whether the law violated the Fourteenth’s Due Process Clause in the petitioners’ liberty and privacy interests.98 In overruling Bowers, the Court took a substantive due process approach to the latter issue, and ruled that the state had no legitimate interest in intruding upon an adult’s private life.99 Again, even at a rational basis standard of review, the state failed to prove a legitimate interest in denying a fundamental right — here, the right to privacy.
In addressing the equal protection argument, the Court noted that while U.S. society may have generally had a negative view of homosexuality throughout its history, state laws directed toward criminalizing homosexual behavior only appeared in the 1970s in only nine, mostly Southern, states.100 Prior to that, anti-sodomy laws, like the Georgia one in Bowers, were aimed at prohibiting “nonprocreative sexual activity” in general.101 The Court noted the severity of the criminal penalty for Texas’ “Homosexual Conduct” law as well as the repeal and lack of enforcement of anti-sodomy laws in concluding that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice[.]”102
In the case for the legalization of gay marriage, Justice Scalia’s dissent in Lawrence may provide an even greater impact than the ruling itself. While Scalia indicated that he had no problem with homosexuals “promoting their agenda through normal democratic means[,]” he warns of “the end of all morals legislation” in the Lawrence ruling.103 Scalia declares that, “nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right[,]’” and he worries that the “unheard-of form of rational basis review” the Court applied will have dire implications on future cases.104 He cites Washington v. Glucksberg in indicating “that only fundamental rights which are ‘deeply rooted in this Nation’s history and tradition’ [marriage, for example] qualify for anything other than rational-basis scrutiny under the doctrine of ‘substantive due process.’”105
Finally, Scalia references same-sex marriage specifically in his criticism of the Lawrence decision. He indicates that it “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”106 He further asks “what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution[?]’”107 In his criticism of Justice O’Connor’s concurrence, he indicates that her reasoning “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”108 Of course, Scalia sees all of this as a bad thing. But the gay community is happy to finally find something on which they can agree with the conservative justice and will hopefully have the chance to use his own words against him in securing the fundamental right to marriage for all.
C. STATE COURT DECISIONS AND LEGISLATION
Scalia’s fears would come to fruition later that same year when the Supreme Judicial Court of Massachusetts provided the country’s first case legalizing gay marriage. The court quoted the Lawrence decision in determining that its obligation was “to define the liberty of all, not to mandate our own moral code.”109 In Goodridge v. Department of Public Health, the court determined that to be consistent with the Massachusetts Constitution, the state could not “deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.”110 Because the “ban” on same-sex marriage did not even pass the rational basis test, the court indicated it would not consider whether a higher standard of scrutiny would apply.111 Of the three interests the state claimed in defending the ban — procreation, child-rearing, and financial resources — the court determined that opening marriage to same-sex partners would actually advance the last two.112 The court ultimately left it up to the state legislature by staying the entry of the judgment for 180 days so that it might take action in light of the opinion.113 Gay marriage remains legal today in Massachusetts.
The Goodridge court specifically looked at the history of the illegality of interracial marriage in the United States in determining that “the right to marry means little if it does not include the right to marry the person of one’s choice, subject to the appropriate government restrictions in interests of public health, safety, and welfare.”114 Finally, the court referenced Lawrence, Zablocki, and Loving in concluding that “[w]hether and whom to marry, how to express sexual intimacy, and whether and how to establish a family — these are among the most basic of every individual’s liberty and due process rights.”115 The court clearly found a connection between the historic prejudice shown to interracial couples and the current prejudice gay couples face.
Prior to the Goodridge case, Hawaii had ruled its marriage statute was presumed unconstitutional by limiting marriage to only opposite-sex couples.116 In Baehr v. Lewin, the Supreme Court of Hawaii determined that the statute created a “sex-based classification,” and remanded the matter back to the circuit court to apply a strict scrutiny standard of review.117 The state legislature, however, proposed a constitutional amendment to Hawaii’s constitution, giving the legislature the power to “reserve marriage to opposite-sex couples[,]” and it passed with an overwhelming 69% of the vote in 1998.118 The court was therefore forced to dismiss the case.119 Consequently, the Baehr case lead to other states and ultimately the federal government imposing laws to ensure that if and when a state did allow gay couples to marry, no other state would have to recognize them as legal marriages.120
Also prior to Goodridge, Vermont had legalized civil unions between same-sex couples, granting them the same benefits and protections afforded to married couples.121 In 2009, Vermont became the first and so far only state in the country to legalize same-sex marriage by legislation, defining marriage as “the legally recognized union of two people.”122 Most recently, the Supreme Court of Iowa applied an intermediate scrutiny standard of review in determining that the state’s code, which prohibited same-sex marriage, violated the equal protection clause of the Iowa Constitution.123
In Varnum v. Brien, the Iowa Supreme Court included the issue before it with “other civil rights actions[,]” and indicated that if a statute was inconsistent with its constitution, it “must be declared void, even though it may be supported by deep-seated traditional beliefs and popular opinion.”124 The court further stated that its responsibility was “to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted[.]”125 The court noted Iowa’s historic progressiveness in the area of equal protection for blacks and women, and determined that “the law must treat all similarly situated people the same[.]”126 Finding that the state had been “unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage[,]” the court ruled that the limiting language had to be stricken from the statute.127
D. A TALE OF TWO COASTS: CALIFORNIA VS. D.C.
While the Iowa Supreme Court disregarded public opinion in its decision to legalize gay marriage, the blow voters gave to gay couples in California in passing Prop 8 speaks volumes to its importance. Currently, the American Foundation for Equal Rights has filed a federal court challenge against Prop 8, but it could take years (if at all) before the case makes it to the Supreme Court.128 The gay community in its efforts to fight Prop 8 was shocked by the high turnout for the proposition by black and to some degree Hispanic voters.129 Proponents of Prop 8 appealed to minorities with ad after ad of “disinformation,” including allegations that churches would be forced to perform gay marriages or lose their tax exempt status, schools would teach their children homosexuality, and even then candidate Obama’s statement: “I’m not in favor of gay marriage.”130 The gay community’s efforts in reaching out to these minority groups was basically too little, too late. They tried to get the word out that Obama was also opposed to Prop 8 and debunk the other lies, but the damage had been done.131
It would appear that the gay community has learned its lesson from recent events in our heavily black populated nation’s capitol. In December 2009, the Washington, D.C. council voted 11 to 2 to allow gays to marry.132 Ironically, activists there saw the election of Barak Obama as an opportunity to jump ahead in what had been a relatively slow progression of establishing gay rights in the city.133 With a “powerful gay rights lobby and one of the highest proportions of same-sex couples living together in the nation,” success was achieved by a diverse network, including almost 200 religious leaders.134 Activists organized “people of color in their own neighborhoods,” and spoke to residents one-on-one, where they were, to help establish D.C. as “the first majority black municipality that has made marriage equality a reality.”135
V. CONCLUSION
Gay marriage is possibly the last, big civil rights fight this country will ever see. The concept of marriage in the United States has evolved to allow for former slaves and interracial couples to marry, while eliminating polygamy from what is acceptable in today’s society. Marriage is a foundation that goes well beyond the writing of our Constitution, yet all Americans have an implied, constitutional right to marry whomever they choose. If this is the case, as the Supreme Court has ruled time and again, then why are most gay Americans not able to legally marry?
While laws may rule the judiciary, popular opinion still very much controls the legislative and executive branches of our government. These are our elected officials, and they do not get elected by taking stands on unpopular issues. This is why we count on the courts to do the right thing in ruling with the law and constitutionally protecting individual rights against the majority. This can unfortunately be a slow process, as the history of the civil rights movement in this country indicates. Therefore, changes in public opinion can tip the scales toward a swifter progression of those individual rights. This was evident in the efforts for abolishing slavery and in legalizing interracial marriage. The gay community needs to build upon the success of its efforts in Washington, D.C., and continue to reach out to the black community in swaying public opinion to accept the legalization of gay marriage as the true moral choice in giving these families the same dignity and legitimacy that others enjoy.
