Indecent Proposal

You would think it would take a miracle for the two opposing attorneys of Bush v. Gore (2000) to find common legal ground on anything. But Perry v. Schwarzenegger, an ongoing trial in California that finished hearing witness testimony late last month, has united Ted Olson, an “icon” of the conservative legal movement, and David Boies, his former “liberal adversary,” on perhaps the only ideology they share. Both lawyers believe that California’s Proposition 8 is unconstitutional under the Fourteenth Amendment, and both are willing to take their case to the U.S. Supreme Court in order to prove it.

News outlets have noted a high probability that Perry v. Schwarzenegger will eventually become a “landmark” civil rights decision on par with Brown v. Board (1954) and Roe v. Wade (1973), consistent with Boies’s and Olson’s ultimate vision. “We acted together,” Boies commented in The Wall Street Journal, to emphasize that this is “not a liberal or conservative issue, but an issue of enforcing our Constitution’s guarantee of equal protection.” Indeed, as Olson echoed in Newsweek, “legalizing same-sex marriage” would “represent the culmination of our nation’s commitment to equal rights.”

The bipartisan duo is exactly right. Based on previous rulings by the Supreme Court, Prop 8 violates the Constitution’s guarantee that a state cannot “deny to any person within its jurisdiction the equal protection of the laws.” But even more strikingly, if the Court upholds Prop 8, the ramifications would be much more devastating than a speed bump on the road to civil equality. If they affirm that Prop 8 and the Fourteenth Amendment are not mutually exclusive, they would, effectively, overturn the landmark decision in 1967 that made bans on interracial marriage unconstitutional.

That case, titled Loving v. Virginia (1967), is one of the primary decisions cited by Olson and Boies as precedent. Loving, a white male citizen of Virginia, married a black fellow Virginian out-of-state and was charged, along with his wife, with violation of Virginia’s Racial Integrity Act of 1924. The couple challenged the constitutionality of this law under the Fourteenth Amendment, and on appeal, the Supreme Court of Virginia upheld it because the state has a personal stake in preserving the “racial integrity” of its citizens. In addition, since a man and a woman who violate this law are both punished equally, the law surely grants “equal protection” to both whites and blacks.

In a unanimous decision, the U.S. Supreme Court obliterated their reasoning. Violation of the Equal Protection Clause, wrote Chief Justice Earl Warren, is related to “arbitrary and invidious discrimination,” regardless of the fairness with which punishments are distributed. Since marriage is one of the “basic civil rights of man” that is “essential to the orderly pursuit of happiness,” to deny this “fundamental freedom” to two people who love each other on such an arbitrary criteria as race is “directly subversive of the principle of equality.” All that Olson and Boies need to do to prove their case, therefore, is extend the Loving ruling from racial discrimination to sexual discrimination, a policy that is also forbidden under the equal protection clause.

Now, supporters of Prop 8 will argue that Loving’s guarantee of a “freedom to marry” is completely irrelevant to the question of gay marriage because, quite simply, gay marriage is not actually marriage. As a New York Appellate Court put it in Hernandez v. Robles (2006), “until a few decades ago, it was an accepted truth for almost everyone who ever lived…that there could be marriages only between participants of different sex,” whereas interracial marriage has always been between a man and a woman.

The crucial flaw in this argument, and the reason why Prop 8 is such a threat to Loving, is that the Virginia courts didn’t believe that interracial marriage was “marriage”  either. Marriage is a divine institution, wrote the Virginian judge that originally gave the Lovings their sentence, and God “placed [separate races] on separate continents,” in order to demonstrate that He did “not intend for [them] to mix.” In Naim v. Naim (1955), the Virginia Supreme Court similarly argued that there is a clear “natural law” which renders interracial marriage a “corruption,” since God had clearly rendered different races with “different natures.” The Warren Court, however, rendered all of these concerns baseless, since marriage cannot be defined by the superficial characteristics of those involved. Legitimizing the concerns of those who are against gay marriage will also therefore legitimize the concerns of the segregationists four decades ago.

Unless the court can find a viable reason to distinguish between interracial marriage and gay marriage, they must therefore conclude that Prop 8 is an unconstitutional as the Racial Integrity Act of 1924. If they fail, they will be tossing into the dustbin the reasoning that the Supreme Court used in Loving to strike down laws that banned interracial marriage, thereby implicitly overriding it. Two years ago, we elected a president raised by parents whose marriage was only considered fully valid after a ruling by the U.S. Supreme Court. Perhaps one day, after the Court makes the right decision regarding laws like Prop 8, we will elect another.

Avishai D. Don ’12, a Crimson editorial writer, is a social studies concentrator in Pforzheimer House. His column appears on alternate Wednesdays.