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A Wedding of Law & Morality: Same – Sex Marriage on Trial in San Francisco June 16, 2010

Posted by legalethicsemporium in Gay Marriage, Law, Ethics & Society.

Closing arguments are scheduled today in the case in San Francisco in which the legality of  same-sex marriage is on trial.  The Supreme Court of California had deemed same-sex marriage to be legal and the voters of California passed Proposition 8 to negate the Court’s ruling. Proposition 8 amended the California Constitution to define marriage as a union solely between a man and a woman.  The issue before the Federal District Court is whether marriage is a fundamental U.S. Constitutional right.  Regardless of what this court decides, the case is likely to be appealed to the U.S. Court of Appeals for the 9th Circuit  and ultimately to the U.S. Supreme Court.

If law is said to be a snap shot of a society’s cultural values at any point in time, this trial is a prime example of that phenomenon.  The judge in this case has heard the testimony of psychologists and social scientists and has told the parties to be prepared to answer questions such as whether sexual orientation is a choice and whether same-sex marriage threatens the institution of marriage.

This is not the first time that our society has defined the right to marriage by resort to the legal system.  The U.S. Supreme Court decided Loving v Virginia in 1967 and declared that a  law that prohibits inter-racial marriages is unconstitutional.

The Supreme Court’s ruling in that case overturned a decision in Virginia in which the judge had opined: “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.”

Forty-three years later, the courts are once again being asked to define social norms within a Constitutional context. The people of California spoke as a majority when they voted for Proposition 8 and one might argue that in a democracy, the majority rules—-but if a fundamental Constitutional right is at stake, a majority of voters in one state does not qualify as a the final word.  The U.S. Supreme Court is the final arbiter of the Constitution.

While waiting for the courts to determine the legal fate of same-sex marriage, one wonders the context in which this debate will be viewed when we consider the issue forty-three years from now.  It is worth considering the words of Mildred Loving which she prepared for a press conference  in 2007 commemorating the forty-year anniversary of the Supreme Court decision in her case.  What follows is an excerpt from her statement.

God’s Plan?

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people civil rights.

Freedom to Marry for All

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.


1. John - June 18, 2010

I also support the idea that people should be free to love and have their relationship honored by society at large. What is in question here is how Society recognizes and validates the union of two human beings and how that union is treated under the law. There is a simple solution but many on both sides seem unable to compromise due to religious beliefs or a belief that government should not meddle in private affairs.

Let marriages be performed by the Church of choice for those that believe in such things. Let Government issue civil union contracts for the rest. Call it a marriage or civil union, your choice. Separate but equal under the law but most importantly available to anyone who professes love and commitment for another. Can’t we all just get along, and hope that everyone experiences true love?

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