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Forty years ago, on June 12, 1967, the U.S. Supreme Court struck down the remaining 16 state laws in our country that banned marriages of interracial couples, in the aptly named case of Loving v. Virginia. The court held that the right to marry the person of one’s choice is fundamental. When a right is fundamental, the government cannot deny it to any person without having a compelling justification for doing so. As a result, while Loving involved marriage of couples of different races, its holding has had much broader application, including the invalidation of government restraints on prison inmates marrying and restrictions on remarriage by fathers delinquent on child support. As the NAACP Legal Defense and Education Fund explained in a brief it submitted supporting the effort of same-sex couples to be allowed to marry in New York, “the basic principles addressed in Loving are not and should not be limited to race, but can and should be universally applied to any State effort to deny people the right to marry the person they love.” New York Chief Judge Judith S. Kaye explained the point well, when she dissented from her court’s ruling against those same-sex couples’ marriage rights: “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.” Four justices of the Washington state high court agreed with that understanding when they, too, dissented from their court’s decision against same-sex couples. In New Jersey, where the high court ruled that same-sex couples must have marriage’s benefits, but refused to guarantee the status and powerful name of marriage itself, two justices joined a similar explanation by Chief Justice Deborah Poritz that “ Loving teaches that the fundamental right to marry no more can be limited to same-race couples than it can be limited to those who choose a committed relationship with persons of the opposite sex.” These dissents will one day become the law, as have more than 130 dissents issued in Supreme Court cases, according to one scholar. These include the dissents that disagreed with cases like Plessy v. Ferguson (which preserved separate railroad cars for African-Americans) and Bowers v. Hardwick (which upheld criminal bans on consensual adult sexual intimacy). Courts ask the wrong question What distinguishes dissents that subsequently become the law from those that rightly remain mere dissents is how their clear vision contrasts with the blurred reasoning of the decisions with which they take issue. Those who have ruled against requiring states to permit same-sex couples to marry lost their focus by asking whether there is a fundamental right to “same-sex marriage.” In Loving, the right at stake was the right to marriage, not “interracial marriage.” A focus on the race or the sex of each of the two people who wish to marry wrongly fixes on who is making a choice, rather than what that choice is (to join legally with a lifetime committed partner). The wrong question these jurists posed led them to observations that “history and tradition” do not support same-sex marriage. But “history and tradition” did not support interracial marriage either. Under such circular logic, whereby those who have historically been denied a right are held, as a result, to have no right, Loving would have come out the other way. History and tradition do have a proper role in the legal analysis. They help in courts’ examination of whether the profound human needs for which protection is sought historically have been respected. Poritz explained that, “by asking whether there is right to same-sex marriage, the Court avoids the more difficult questions of personal dignity and autonomy raised by this case.” What needs to be addressed is whether lesbians and gay men have any less of a human need to be afforded America’s historical respect for personal dignity and autonomy, free from governmental interference, with regard to decisions relating to marriage, than heterosexuals. Some argue that marriage “by definition” is for a man and a woman, and that the couple in Loving were male and female. That misses the essential point: Fundamental rights are linked to what is fundamentally human about us all, so they cannot be defined by who is currently entitled to exercise them. Just because lesbians and gay men long were treated as abnormal, immoral and unworthy of the law’s protection does not justify continuing to treat them that way. The attempt to change the focus, from the human needs we all share to wrongful distinctions about a minority, formed another of Loving‘s lessons. Back then, defenders of marriage bans linked racial distinctions to abnormality and immorality. As explained by Karen Woolbright, who entered an interracial marriage in the decade before Loving, and who recently testified on behalf of her son in his case seeking the right to marry the man he loves, “[m]any of the same reasons I heard in the 1960′s as to why I should not have the right to marry my husband I hear today as to why my son should not have the right to marry Daniel . . . .[W]e heard people say that black and white races were not meant to mix; that we were an aberration; that our relationship was immoral; that marriage was not meant to include inter-racial couples.” The day will come when our government keeps its constitutional promises, when the dissents defending same-sex couples’ right to marry will become the law of the land, because, in the words of Washington Supreme Court Justice Mary Fairhurst, courts will have learned “from the embarrassments of history.” That day will come all the sooner if courts, and the public, heed the lessons of Loving. Jon W. Davidson is the legal director of Lambda Legal, the largest and oldest national legal organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV.

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