Loving and Marriage Equality

Logo of Freedomt to Marry, Inc.

“working to win the freedom to marry in more states, grow the national majority for marriage, and end federal marriage discrimination. ” http://www.freedomtomarry.org/pages/about-us

Today at noon, the US Supreme Court wrapped up a hearing on the right of same-sex couples to marry.  The case is called Hollingsworth v. Perry. If broadly held in favor of the plaintiffs, it will prohibit states from denying lesbian and gay people the right to marry each other. If narrowly held, it would not affect cases outside California; it would only overturn Proposition 8 and allow gay and lesbian people within California to marry each other.

Tomorrow, the US Supreme Court will hear a case called Windsor v. United States. This case appeals the constitutionality of the federal Defense Of Marriage Act (DOMA). DOMA denies any benefit, such as tax deductions, for married couples who are not of the opposite sex.

Jointly, these cases are, IMO, about  fairness, equality, and family. What constitutes a family?  Is it right to deny a couple the rights, privileges, and responsibilities of marriage granted all other loving adults?  Does prejudice trump the protections of due process and equal protection clauses of the 14th amendment to the US Constitution?

These questions have come up before. There are a total of 14 previous marriage-equality cases that have reached the US Supreme Court. All of these cases have declared that marriage is a fundamental right for all.  The most famous case—and one that will be part of the argument for same-sex marriage in today’s case—is Loving v. Commonwealth of Virginia.

In 1967, Chief Justice Earl Warren, in an unanimous decision, overturned Virginia’s miscegenation law that bans marriage “solely on the basis of racial classifications [because it violates] the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”

When you read further into the opinion you can see that it was prejudice that was the sole basis for Virginia’s (and 15 other states) laws banning interracial marriage. The argument that the state made for keeping the miscegenation law on the books was highlighted in the Court’s opinion. Chief Justice Warren quoted the judge who had sentenced Mildred and Richard Loving to either 1 year in jail or 25 years of exile from Virginia:

“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.”

Then Warren overturned the statute stating that there is no legal, “rational” basis to deny someone the constitutional right of marriage equally granted to all other heterosexual couples. And in one simple statement, he basically said that marriage is an issue of equality for all. He said,

“The freedom to marry has long been recognized as one of the vital personal rights [emphasis added] essential to the orderly pursuit of happiness by free men.” 

What happened after this decision?

Interracial Marriages

The result of this opinion was that all anti-miscegenation laws throughout the country became unenforceable. And in the case of Virginia, the state was ordered, among other things, to remove this law from their books. They did it kicking and screaming. It took them until 1971–four years after the Court’s decision–to finally comply.

And I was in the room when it happened. And as far as I can find, they made as sure as they could that the legislators’ prejudicial behavior wouldn’t appear in the history books.

I grew up in Virginia. During my senior year in high school, our Government Class took a trip to the Capitol in Richmond. It just happened to be the day that the legislature rescinded the law banning intermarriage between people of color and Caucasians. There were six of us in the class who wanted to see the vote occur. The guards at the entrance to the visitors’ gallery shut the doors and wouldn’t let anyone in. The six of us decided to question this action and held a sit-in in front of the doors. After much consternation on the part of the guards as to what to do with us, they finally opened the doors and let us in.

We then watched an all-white, male legislature grudgingly vote to rescind this law. In Virginia, the House voted using a board of red and green lights – red for a no vote and green for a yes vote. The question on the floor was basically, “Should we remove the two statutes in our code that prohibit and punish interracial marriages?” 

The speaker put the question to a vote. The board started lighting up. All but a couple of lights were red, meaning that they almost all wanted to keep this prejudiced law on the books. About 30 seconds prior to recording the vote, the speaker again said that he would be closing the vote and asked everyone once again to vote. Just before he closed the vote for the record, all but a couple of the red lights turned green. What got recorded was a grudging acknowledgement that loving someone and getting married is a right that could no longer be denied because of animus towards the couple.

Same-Sex Marriages

In the case of gay and lesbian couples, we once again have an issue of animus towards the freedom to marry in some but not all states. Thirty-nine states limit marriage to heterosexual couples only via statute or state constitutional amendment.

Ten states and three Native American tribes believe otherwise. The states supporting marriage equality are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and the District of Columbia. The tribes supporting marriage equality are the Coquille Tribe in Oregon, the Suquamish tribe in Washington, and the Little Traverse Bay Bands of Odawa Indians in Michigan.

New Mexico and Rhode Island recognize marriages that occur in other states and countries, but don’t allow them to be performed within the state.  And California, unless Proposition 8 is overturned, currently and will continue to recognize only the same-sex marriages that occurred between the May 2008 CA State Supreme Court’s decision legalizing same-sex marriage and the November 4, 2008 passage of Proposition 8.

Polls also tell a story as does Mildred Loving

At the time of the Loving decision, 80% of the country felt that it was wrong for interracial couple to marry. In 2011 (the most recent poll I could find), a record 86% of the public supported interracial marriage.

According to FreedomToMarry.org, popular opinion on gay marriage has also dramatically shifted in the last nine years. A poll addressing the issues being argued in the Proposition 8 case was released on March 18, 2013; it indicates that 58% of respondents support same-sex marriage; only 36% say they are opposed. A poll addressing the issues being argued in the DOMA case was released on March 7, 2013; it shows that 59% of respondents oppose the “denial of equal benefits and protections for legally married same-sex couples.”  And regardless of support for same-sex marriage in either federal or state law, even more people—83 percent—believe that there is a constitutional right to marriage (poll released on February 19, 2013).

I agree. And so did Mildred Loving in one of her few public statements on marriage equality. On the 40th anniversary of the Loving v. Commonwealth of Virginia decision (June 12, 2007), she linked the freedom to marry for same-sex couples to the freedom to marry for interracial couples:

I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.

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.

Let’s listen to Mildred. Let’s listen to the public. Let’s stand up to the animus similar to that expressed by those all-white legislators in the 1971 Virginia General Assembly.

Like Chief Justice Warren and all of his colleagues did back in 1967, the current US Supreme court needs to stand for freedom, fairness, and the family.  They should  broadly rule for marriage equality as suggested by People for the American Way Foundation by supporting the freedom to marry for all. Overturn Prop 8, DOMA, and all the restrictive marriage laws across the country.

As Mildred said,

That’s what Loving, and loving, are all about.

Institutional Corruption and the Influence of Money and Politics on People’s Lives

Fountain Pen and SignThis morning, I was scanning Tweets that came into my Twitter account. One of the Tweets said,

“Why the phrase ‘Supreme Court to hear campaign-finance case’ should scare you.”

It contained a link to an article in the Daily Beast. This article said that the US Supreme Court has decided to take another look at campaign financing in a case from the United States District Court in DC called McCutcheon v. Federal Election Commission. I read the article.

And yes this case scares me. McCutcheon argues that there should be no limits at all on campaign financing.  It scares me because I believe that if the Supreme Court rules in favor of McCutchen, there will be more influence and therefore more institutional corruption on our public policy.  This will then allow the creation of more holes in the safety net for people’s lives due to the corrupting influence of big money. For clarification, institutional corruption is defined as:

[T]he consequence of an influence within an economy of influence that illegitimately weakens the effectiveness of an institution especially by weakening the public trust of the institution.

Why? Because I do not trust the members of the current Supreme Court to openly and fairly take into account that elected officials need to answer to their constituents and not to the people and companies and lobbyists that influence them by throwing lots of money and offering consulting jobs to these elected officials (a form of “money”) once they leave office.

My mistrust results from their decision in the 2009 Citizens’ United case.  They held that the First Amendment to the US Constitution prohibits the government from restricting independent political campaign expenditures from corporations and unions.  The aftermath of this decision has been devastating. Immediately after this decision, the DC Circuit Court (which handles cases involving federal regulations) ruled that

“individuals could make unlimited contributions to so-called Super PACs, which supported individual candidates.”

And what did we see?  In the 2010 elections, Super PACs—mostly funded by the mega-rich—assisted conservative Tea Party candidates at all levels of government to win seats that they would not have otherwise been able to win.  This resulted in a lot of gerrymandering around the country for the incumbents’ self-interest.  And in 2012, $6.2 billion was spent on elections; over $10 million of these funds were given to a small number of Super Pacs by a very small number of mega-wealthy individuals—including the Koch brothers—to influence the outcome of the elections.

If this case overturns what few limits on campaign financing are left, the doors for institutional corruption will be thrown wide open.  Candidates will spend even more time chasing money, mostly soliciting funds from large, non-constituent individuals and corporations.  Most of these individuals are heads of corporations whose special interest is their bottom-line profits and not the interests of the “47%.”

Fred Wertheimer is President of Democracy 21. It is a non-partisan group that works to eliminate the undue influence of big money in the public arena.  He agrees with me that big money corrupts our public institutions. In a press statement on February 19, he said that the

“[A]ggregate limit on contributions by individuals is necessary to prevent circumvention of the limits on contributions to candidates and political parties and the prohibition on federal officeholders soliciting huge corrupting contributions.”

And further, if the Supreme Court either completely guts or weakens campaign financing, this decision

“…would open the door to $1 million and $2 million dollar contributions from an individual buying corrupting influence with a powerful officeholder soliciting these contributions, and with the political party and federal candidates benefiting from these seven figure contributions.”

I believe that it is the local constituent who should be influencing their representatives.  Not corporations. Not big money. And not the 1% at the top of the income ladder who do not live or experience the lives of the people who live in each of our communities.

I am one of the 85% of Americans who view Congress unfavorably because of what they have NOT been doing for people’s lives. Like allowing funds for critical domestic programs to be cut due to the budgetary stalling and delays of the Fiscal Cliff and Hurricane Sandy debates and resulting Sequestration that now looks like it will become reality this coming Friday. Like delaying passage of the Violence Against Women Act (VAWA) from being reauthorized for over two years (which, may change tomorrow when and if the House FINALLY votes on the Senate-passed VAWA Act of 2013).  Like talking about but not taking any comprehensive action, so far, to deal with violence and gun safety (for more information on this gun safety issue, read my blogs here and here).

No, I don’t trust the US Supreme Court.  And no, I do not trust Congress. All because of the influence of money on the decisions the do and do not make.

Institutional Corruption is a problem.  We need to reduce that corruption.  We need to empower the small donors.  New York City, as well as Los Angeles and San Francisco have done this.  And in a plan put together by Brennan Center for Justice at New York University School of Law and Democracy 21, we could do the same thing as well across the country. Look at the plan and then lobby your legislator, even if you don’t trust him or her. Vote for candidates in the future who pledge to listen to their constituents and not to big money.

This will take a long time.  But it is necessary. Then and only then do I believe that we can and will be able to trust our elected officials to truly represent us and our concerns.

For More Information on Institutional Corruption

For more information, watch the video below. In this 2009 presentation, Lawrence Lessig defines institutional corruption.  He then discusses the probable effects of this undue influence of money (broadly defined) not only on elected officials but its effect on other institutions, such as the EPA and medical research.