Picture this: The scene is Des Moines, Iowa, 2011. A joyous and excited engaged couple, in preparation for their upcoming nuptials, entered Victoria Childress's home bake shop for a taste testing appointment for their wedding cake.
The tradition of the wedding cake dates back centuries. It symbolizes the anticipation of a sweet life together. The couple cut the confectionary delight hand-in-hand representing their first of many combined and cooperative undertakings in marriage. They feed each other a piece to show their joint commitment.
When the couple entered Victoria Childress's shop, she inquired who was getting married? A member of the couple, Janelle Sievers, told the baker that they were, she and her partner Tina Vodraska. Upon hearing this, Childress informed the couple, according to published accounts: "I'll tell you I'm a Christian, and I do have convictions. I'm sorry to tell you, but I'm not going to be able to do your cake."
Later, according to Janelle, "I don't think either one of us knew what to say. We were just shocked."
Interviewed by a reporter for local TV station KCCI, Childress gave her reasons: "I didn't do the cake because of my convictions for their lifestyle. It is my right as a business owner... [I]t's to do with me and my walk with God and what I will answer [to] him for."
The Iowa State Supreme Court in 2009 voted unanimously to uphold a lower court ruling legalizing marriage for same-sex couples, preceded by the Iowa Legislature, which amended Iowa's Civil Rights Act in 2007 to include "sexual orientation" and "gender identity" in the areas of employment, housing, education, and public accommodations. Janelle and Tina have yet to decide whether they will file a civil law suit.
Now picture this: The scene is the small Virginia town of Central Point in Caroline County in 1958, when childhood friends fall in love and marry across the Potomac River in Washington, DC. Virtually the entire town attends the reception festivities in the Central Point home of one of the partners, whose family invited the young couple to live with them until they could afford a home of their own.
Soon afterwards, as the couple sleeps peacefully embracing in their bed, local police officers crack the silence by abruptly storming the room, guns poised, flash light beams temporarily blinding the couple who suddenly find themselves shacked in handcuffs as they march terrified to the town jail.
"Richard," asked Mildred, "what did we do wrong?" Richard could only shake his head in bewildered astonishment, though they both know why they had been brought there. Richard Loving, a man of European descent, and Mildred Jetter Loving, a woman of African descent, married in a state that passed and retained its anti-miscegenation statute, the so-called "Racial Integrity Act" of 1924, making it unlawful for a White person and a Person of Color to engage in sexual relations.
At the trial, the judge, Leon Bazile, convicted and sentenced them both to one-year imprisonment with a suspended sentence on the condition that the couple leaves the state of Virginia for a period of 25 years. Staring at Richard and Mildred during the sentencing, Bazile invoked Biblical justifications to convict the couple: "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."
Mildred and Richard filed a number of law suits taking their case all the way to the highest court in the land. In the case of Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court of the United States declared the state of Virginia's anti-miscegenation statute unconstitutional, thereby overturning Pace v. Alabama (1883), and ending all race-based legal restrictions on adult consensual sexual activity and marriage throughout the U.S.
I mention these two cases in an attempt to distinguish two vital concepts. The first is the issue of morality, which I see based on our values and our set of beliefs derived by some from religious faith traditions, and by others from secular humanist principles. We live in a country that protects all of our moral belief systems, which no one has the right to take from us. Our beliefs are our own to cherish and to live by as long as we deem fitting. Some people may refer "morality" as the "Golden Rule," whereby we treat others how we want to be treated.
A closely aligned but also somewhat distinct notion is the concept of ethics. For me, this applies to what some refer to as the "Platinum Rule," whereby we treat others how they want to be treated. We consider their needs, their best interests, their values and beliefs, even if these do not necessarily connect or bond with our own.
As a university professor of pre-service teacher education students, I raise the distinction between moral convictions and professional ethics when we discuss issues of controversy within the field of education. For example, I discuss how as teachers, they may find their moral teachings in opposition to the lives or beliefs of their students. For example, their students may "come out" to them as lesbian, gay, bisexual, or transgender, or they may live with same-sex parents or guardians. Or some of their students' parent(s) or care givers may be undocumented workers. Or students may be followers of faith traditions they may not understand or approve. As teachers, however, they have ethical obligations to serve all their students with the highest degree of professionalism, and to treat them equitably.
With this backdrop, then, I ask us, how would Janelle and Tina, and Mildred and Richard wish to be treated, and what would be in their best interests? You be the judge.
-How can the question of any one's "rights" be subject to referrendum?
The POTUS is really dancing around this one.
I think I know his paln.
In his heart, he KNOWS constitutionaly, gay people have a right to marry. He also knows that the majority of the black-christian voting population despise gay sex. I predict that at the end of his second term, (he will be re-elected) he's going to say "Hah! I'm oin the right side of history. I'm singing gay marriage into law! See yu!
Any on want to bet on that?
A lot's changed since Baker in the early 1970s. The arguments involved in Loving -- that denying benefits based on marital status to couples, because of innate characteristics they possess, violates the Equal Protection Clause of the 14th Amendment, with no extenuating circumstances based on the public good -- all are now understood by many to apply very directly to same-gender marriage. And that understanding is growing more universal with the passage of time. Since laws against same-gender marriage fundamentally exclude homosexuals from ever entering into a successful, healthy marriage recognized by the government, it is an even more fundamental form of discrimination than the prohibitions against interracial marriage ever were.
Please, then, dig them up.
“Also, one of the more high-profile cases you cite (Hernandez v. Robles) were decided using rationales that were rather unjudicial and inherently subject to changes with time.
“Unjudicial†by whose estimation – yours? That carries no weight with me. On the other hand, Hernandez v Robles not only still stands, but has been cited in subsequent cases, two of which are Citizens for Equal Protection v Bruning and Samuels v State health Department. Therefore, other state and federal judges think that the HvR rationales are plenty judicial.
"The other was that the judges didn't want to make a finding that would imply that a sizable segment of the US population is bigoted."
You mean this part?
“The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.â€
“Therefore, other state and federal judges think that the HvR rationales are plenty judicial." The CT Supreme Court Justices found otherwise, quite explicitly.
"You mean this part?" Yes, that is the part I mean. The decision is explicitly based on factors -- the newness of the concept and the beliefs of a portion of the public -- that are subject to changes with time ... changes in scientific understanding and public attitudes that, in fact, have been occurring quite rapidly and steadily in recent years.
Much more has changed since Marbury v. Madison in 1803, but it’s still just as potent now as it was then, if not more so. Passage of time and activism does not invalidate precedent. Baker will stand until the Supreme Court decides otherwise.
Also, Baker was just cited this year in the Benson v Alverson decision in Minnesota
“The arguments involved in Loving -- that denying benefits based on marital status to couples, because of innate characteristics they possess, violates the Equal Protection Clause of the 14th Amendment, with no extenuating circumstances based on the public good -- all are now understood by many to apply very directly to same-gender marriage.â€
There are substantial differences between interracial marriage and same-sex marriage, causing the courts to rule repeatedly that Loving does not apply. A few:
1. Innate characteristics – can you look at a baby and tell if he is born black? Can you look at a baby and tell if he is born homosexual?
2. It has been cited that about 40% of gay couples with children had their children in a previous straight marriage. If it is so innate, then how can people go until mid or late life not knowing?
3. The Loving decision said that marriage was a right BECAUSE it was necessary for procreation. At its core, procreation that results from the joining of the sexes is excluded from same-sex marriage.
"The Loving decision said that marriage was a right BECAUSE it was necessary for procreation." Actually, Loving said "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." That's based on Skinner v Oklahoma -- a sterilization case that said marriage and procreation are each basic civil rights "fundamental to the very existence and survival of the race." It's also based on Maynard v Hill, which characterized marriage as "the most important relation in life." I don't find anything saying marriage was considered a right "because it's necessary for procreation." It's just a fact that marriage ISN'T necessary for procreation. Healthy marriages are, however, very beneficial for the development of the kinds of families that are "fundamental to our very existence and survival."
Loving v Virginia dealt with interracial marriage, and has nothing to do with gay marriage. As many times as homosexual or lesbian couples have tried to use Loving in court, they have lost.
Baker v. Nelson was the first shot homosexuals had at trying to use Loving to force a county clerk to issue them a marriage license. One needs to look no further than Wikipedia to find out how that worked for them:
“The couple's reliance on the recent U.S. Supreme Court decision in Loving v. Virginia (striking down an anti-miscegenation law) also failed: "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."[9]â€
This Minnesota State Supreme Court judgement was later upheld by the US Supreme Court, dismissed “for want of a federal question.†Four of the justices in the Loving decision just a few years earlier were involved in Baker.
Morrison v. Sadler (2005), Hernandez v Robles (2006), Samuels v St. Health Dept (2006), and Singer v. Hara are a just a few more cases where those seeking to marry someone of the same same-sex tried to make an analogy between race and homosexual behavior, and failed to convince the judges.
Again, four of the Supreme Court justices who concurred on Loving also ruled on Baker, finding that Loving was not applicable to same-sex marriages.
If it had violated the 14th amendment or any other part of the Constitution there would have been a federal question.
Since it did not there was no federal question