Last week's affirmative marriage decision in California was as stunning as it was historic. California Supreme Court Chief Justice Ronald M. George repeatedly emphasized that marriage is "a basic civil right" guaranteed to all in California, including couples of the same sex. And he gave us an interesting history lesson, pointing out that his decision was based in part on the 1948 decision in Perez v. Sharp to end the state's ban on interracial marriage. That decision was the first in the nation to end race-based legal restrictions on marriage. It came almost twenty years before the United States Supreme Court, in Loving v. Virginia, found all such laws unconstitutional.
In one of those ironic twists that history sometimes teases us with, the man who signed into law the California ban on interracial marriage in 1945 also wrote the 1967 opinion for the United States Supreme Court that struck down the same ban in the sixteen states that still had them on the books. The man, of course, was Earl Warren, governor of California in 1945 and Chief Justice of the United States in 1967. He wrote in that opinion, "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."
Justice George wrote in last week's California decision:
"[A]n individual's sexual orientation -- like a person's race or gender - does not constitute a legitimate basis upon which to deny or withhold legal rights."
The law evolves, and our understanding of the law evolves with it. Sometimes the law leads, and sometimes it follows. In 1948 President Truman led the way when he signed Executive Order No. 9981 ending segregation in the armed forces. The order stated:
"It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion, or national origin."
Not everyone agreed with President Truman then -- at the time his order was highly controversial -- but what he decreed in 1948 is taken for granted in 2008. In the same way, today it is taken for granted that schools are racially integrated and that people of different races are free to marry.
President Truman's list of those who should be given equal treatment and equal opportunity in the armed forces of the United States must be extended to all, provided they are qualified to serve. It's a basic civil right. As I said, sometimes the law leads and sometimes it follows. In California the law is leading the way to insure basic civil rights for all. Although the court's decision is controversial now, I am confident that in the not too distant future most people will not give it much thought. It will be no big deal, just as it's no big deal that persons of different races marry, and that schools and the military are racially and sexually integrated. And one of these days, gays and lesbians will serve openly and proudly in the armed forces of the United States, and it will be no big deal.
Soon we will have a new Congress and a new President. They will have the opportunity to lead us to the right thing.
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