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Gay Marriage Bans Must Recede Into History

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As late as 1967, it was illegal in many states for a white person to marry a black person. Depending on the year and where you lived, state anti-miscegenation laws also prohibited marriage between whites and native Americans, Asians, Filipinos or native Hawaiians.

That's because, until the landmark U.S. Supreme Court decision in Loving v. Virginia, states could and did reserve the right to define marriage that way. The era of anti-miscegenation laws ended only when the high court ruled that they violated the 14th Amendment of the Constitution -- the same amendment cited by U.S. District Judge Bernard Friedman when he struck down Michigan's same-sex marriage ban.

Whether Friedman's decision will hold up to further scrutiny is hard to say. Implementation of it is on hold, thanks to a stay order issued by the 6th Circuit Court of Appeals.

There are, however, compelling ethical and legal reasons why Friedman's ruling should be upheld. Chief among them: There are times when "the will of the people" should not be honored by the courts.

Opponents of the Friedman ruling say states have every right to define marriage as they see fit. Once voters approved the Michigan Marriage Act (MMA), they say, that should have been the end of it.

However, passing a law via referendum does not make it automatically constitutional or out of bounds for judicial review. As Loving v. Virginia shows, marriage restrictions deemed to be unconstitutional can be struck down by the courts.

In this case, Friedman wrote, that the court "rejects the contention that Michigan's traditional definition of marriage possesses a heightened air of legitimacy because it was approved by voter referendum. The popular origin of the MMA does nothing to insulate the provision from constitutional scrutiny."

Is the ban on same-sex marriage really unconstitutional? Friedman makes some complex legal arguments and cites numerous precedents in arguing that the ban violates the Equal Protection Clause of the 14th Amendment. I won't go through all of that here. Instead, I urge everyone to read the decision itself. Agree with him or not, Friedman approaches the constitutionality issue in a thoughtful way.

MMA defenders counter that the whole constitutional argument is gobbledygook because the 14th Amendment was passed to protect racial minorities and contains no specific language protecting gay marriage. This is another case, they say, of a judge "finding new rights" in the Constitution that aren't there. I disagree.

One of the fundamental precepts of our legal system is that rights are not "granted" by the Constitution, or by voters. They are created by "Providence," or by birthright. So, the idea of having the majority vote on the rights available to a minority is repugnant on that basis alone. If gay people have a right to live as they choose (and they do), then society has no right to rip that away from them.

The ideals behind the 14th Amendment certainly apply here, even if a strict reading of the text does not. Because we believe in protecting the rights of minorities, restrictions aimed at specific groups should be held to a very high standard. They should be allowed only when a compelling reason exists to protect society from whatever the minority group wants to do. With the gay marriage ban, that's not even a close call.

As a matter of public policy, there is no practical reason to ban gay marriage. When gay people get married, it helps provide stability to their homes. It harms nobody. Conversely, denying gays that right offers no tangible benefit to other people. Nothing is taken away from straight people to be given to them.

The arguments in favor of the gay-marriage ban come down entirely to religious objections and the "ick factor" perceived by some people. But in our society, we don't get to use the power of the state to impose our religious views on others or protect ourselves from feeling uncomfortable.

Lastly, there's the issue of reality. Homosexuality has been part of the human condition ever since there have been humans. No amount of public disapproval, legal persecution or bullying is going to change that. Gay marriage bans accomplish nothing beyond punishing people for being who they are because others are uncomfortable with the lives they lead.

That's not something civilized societies should do.

They're here, they're queer and it's about time we got used to it. It is time to end state bans on gay marriage. On this, Michigan should be leading the way, not trying to drag the country back.

Originally published in the Detroit News