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The Case for Same-Sex Marriage: Striving for the Moral Absolute of Equality

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Let's assume for a moment that a presidential candidate of either party had come out against interracial marriage. How many of us would be inclined to vote for him or her?

Until 1967, when the U.S. Supreme Court invalidated the anti-miscegenation laws of 16 states including Virginia, Texas, Florida, North Carolina and Georgia, supporters of such a ban used pretty much the same theology-based arguments their ideological heirs use today to rail against same-sex marriage.

Segregation itself was justified on the ground that God had divinely ordained the separation of the races. "If Chief Justice Warren and his associates had known God's word and had desired to do the Lord's will," a 25-year-old Jerry Falwell told worshipers at the Thomas Road Baptist Church in Lynchburg, Virginia, in a 1958 sermon, "the 1954 decision [Brown v. Board of Education, holding segregation in public schools to be unconstitutional] would never have been made." Using Genesis 9:18-27 as "our guide," Falwell went on to declare that, "The facilities should be separate. When God has drawn a line of distinction, we should not attempt to cross that line." Referring to a fellow pastor who had told him that "a couple of opposite race live next door to his church as man and wife," Falwell concluded that integration "will destroy our race eventually."

Thirty years later, in a Washington Post Magazine interview, Falwell recanted his segregationist views and acknowledged that he had distorted the Bible's message under the influence of his Bible college teachers. "You don't know how hard it is to purge yourself of these things," he said. "Unless you've been there, you just don't know. It's the strongest grip."

"Almighty God created the races white, black, yellow, malay and red," wrote County Circuit Judge Leon M. Bazile of Caroline County, Virginia, in his January 6, 1959 ruling sentencing Mildred, a woman of African-American and Native-American descent, and Richard Loving, a white man, to one year in jail for living together after marrying in the District of Columbia (suspended on condition that they leave the state for 25 years). "And," Judge Bazile continued, "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."

On June 12, 1967, the Supreme Court overturned the Lovings' criminal conviction and declared Virginia's Virginia's prohibition of interracial marriage to be unconstitutional. Writing for a unanimous Court, Chief Justice Earl Warren explained that,

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. . . . The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Forty-five years later, only a small minority among us, many if not most of them hard-core white supremacist bigots, disagree with Chief Justice Warren's words. According to a September 2011 Gallup Poll, 86% of Americans approve of interracial marriage. That was up from 4% in 1958, 20% in 1968, 48% in 1994, and 77% as recently as 2007.

The attitudes toward same-sex marriage have similarly changed, evolved if you will. In 1996, only 27% of Americans supported, and 68% opposed, the legal recognition such marriages. Only two years ago, the number of Americans supporting the legalization of same-sex marriage had risen to 44%, with 53% opposed. As of last year, according to a May 20, 2011, Gallup Poll, a majority of 53% of Americans believed that marriages between same-sex couples should be recognized, while the number of those opposed had declined to 44%. Most dramatically, support for same-sex marriage among 18- to 34-year-old Americans rose from 54% in 2010 to 70% just one year later.

As I have written previously on this site, constitutional rights should never be determined by Gallup polls or popular referenda. At the same time, it important to remember that such rights must also never be limited by the "grip," to use Jerry Falwell's term of 25 years ago, of parochial or narrow-minded religious dogma.

Thomas Jefferson wrote that the First Amendment to the U.S. Constitution had erected "a wall of separation between church & state," and believed that all Americans must be accorded the opportunity "to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries." Effectively, this means that while government cannot impose its will on religious institutions, the converse is equally true: religious institutions or religious tenets must not be allowed to dominate or dictate the national civil agenda.

As President Barack Obama correctly told ABC News' Robin Roberts, the national debate over same-sex marriage involves civil -- not religious -- marriage and civil -- not religious -- laws. Churches and other religious groups are not obligated in any way to endorse practices they consider antithetical to their beliefs.

I have no argument whatsoever with priests, ministers, rabbis or imams who do not wish to perform same-sex marriages. They cannot and should not be compelled to do so. Nor should any church, synagogue or mosque be required to provide a venue for such nuptials. At the same time, those who oppose same-sex marriage on religious grounds must not be allowed to infringe on the right of gays and lesbians to the pursuit of happiness which necessarily includes the happiness of being in a loving and recognized matrimonial relationship.

President Obama got it right when he said that he did not want to explain to his daughters why some people should be treated differently in the "eyes of the law." In the end, striving for equality should never be a nuanced principle.

Menachem Z. Rosensaft teaches about the law of genocide and World War II war crimes trials at the law schools of Columbia, Cornell and Syracuse universities