by Timothy R. Koch, MDiv, PhD
JD Candidate 2012

In 1967, the Supreme Court unanimously ruled that Virginia’s anti-miscegenation statute was unconstitutional; the poetically apt name of the case was Loving v. Virginia.[1]  The Court held: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness of free men.”[2]  The last phrase, of course, references the Declaration of Independence and the inalienable rights enumerated therein.

Because marriage is an essential personal right, because it cannot and should not be alienated, the Supreme Court was unwilling to allow race and racial classifications—no matter how strongly felt and religiously supported in various parts of the country—to bar free citizens[3] from marrying one another.  The rationale of personal rights was not linked to whether a married couple could or would choose to biologically produce children; infertile, adult heterosexual couples of any race could not be barred from the institution of marriage any more than those destined to procreate.

It is unacceptable and, in light of Loving, unconstitutional to continue to deny lesbians and gay men who are themselves citizens of the United States this basic, vital, personal right.  It does not matter if there are substantial pockets of resistance.  It does not matter if these are buttressed by religious justifications.  If there are people who do not want gay or lesbian marriage then most certainly they need not be required to engage in one.

The fallback position of allowing each state to decide for itself whether to sanction same-gender marriages is similarly untenable.  The notion that human rights and equality are subjects for experimentation in state laboratories is a moribund and morally bankrupt idea; there are no appropriate referenda for deciding whether to extend to all citizens human dignity.  What is more, if “inalienable” has any meaning, then it defies a majority’s right to separate the individual from her or his fundamental (vital) right.  The lie underneath the leave-it-to-the-states argument is demonstrated by the unwillingness of numerous states to honor the gay and lesbian marriages sanctioned elsewhere.  Out-of-state driver’s license?  Honored.  Marriage license?  Not necessarily, not if it involves individuals that we, in our state, do not embrace and would continue to disenfranchise.

To address three counterarguments in succession: 1. Tradition.  Response: Sexism is a tradition; racism is a tradition; religious bigotry is a tradition; slavery was a tradition.  That argument is insufficient.  2. Slippery slope.  Response: Does anyone seriously believe that if I marry another male, brothers and sisters will begin copulating with one another as well as with their pet iguanas, and then insist on the right to marry as group?  That is as laughable as it is offensive.  That argument is indefensible.  3. The compelling need to protect the bedrock of civilization.  Response: If civilization’s bedrock can crumble if Tim Koch takes a husband, society’s foundation rests on something puny and unreliable indeed.  Why not institute a much more powerful social, political, and spiritual bedrock, something a little more structurally sound?  Something, say, like Loving.

[1] Loving v. Virginia, 388 U.S. 1 (1967).
[2] Id. at 12.
[3] Though the language of the Court’s ruling already quoted speaks of free “men,” it is assumed here that the Court envisioned marriage arrangements that also included women.

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