“It is something resting with the parties themselves, for them to decide. If they choose to face this possible prejudice and think that their own pursuit of happiness is better subserved by entering into this marriage with all its risks than by spending the rest of their lives without each other’s company and comfort, the state should not and cannot stop them.” –Justice Carter, Perez v. Lippold (California Supreme Court case from 1948)
The powerful language found in this week’s readings for my Race and the American Legal Process class, regarding the nullification of antimiscegenation laws struck me not only for the sheer forcefulness of the Courts’ opinion, but also for the clear and profound connections these decisions seemingly should have to the current gay rights movement. I have always had an understanding that the gay rights movement has ties to the civil rights movement, and as such been thoroughly disgusted with the heteronormativity and blatant homophobia that categorize such a substantial percentage the African-American community at large, but these court cases have elevated that understanding to a new level; I honestly cannot understand how, with such potent precedent to stand on the shoulders of, LGBT rights activists have not yet secured marriage as a “fundamental…basic civil right” for same-sex couples. My first question is what exactly places the freedom to marry within the scope of basic civil rights; when was it first guaranteed that citizens of the United States have a right to marry? And after gaining a better understanding of that history, I would like to know how the heteronormativity and homophobia that led to the Defense of Marriage Act differ from the white supremacy and precept of inferiority that led to the antimiscegenation and criminalization-of-sexual-relations laws Justices Traynor, Carter, and Warren speak so forcefully against?
Call me naïve, but I am imagining a world in which the quotes from the Perez v. Lippold and Loving v. Virginia read like this:
“Since the right to marry is the right to join in marriage with the person of one’s choice, a statute that prohibits an individual from marrying a member [of his or her same sex] restricts the scope of his choice and thereby restricts his right to marry.”
“The right to marry is the right of individuals, not of [groups of people with the same sexual orientation].”
“Under our Constitution, the freedom to marry or not marry, a person of [the same sex] resides within the individual and cannot be infringed by the State.”
Are these conceived statements really so farfetched? What would it take to bring them to fruition?
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