Maryland's highest court rejected same-sex marriage yesterday and upheld the state's 34-year-old statute defining marriage as a union between a man and a woman.What was the legal argument for doing so? It'll shock you:
It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society [...] This court nevertheless finds that [...] a history of unequal treatment does not require that we deem suspect a classification based on sexual orientation.In his dissenting opinion, Chief Justice Robert M. Bell wrote:
To be sure, there are important differences between the African American experience and that of gay men and lesbians in this country, yet many of the arguments made in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage.In Loving v. Virigina, the 1967 court case in which Robert Loving and Mildred Jeter challanged the constitutionality of Virigina's antimiscegenation laws, the United States Supreme Court ruled:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. 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.How could the Maryland Court of Appeals rule that denial of gays and lesbians the right of marriage is not a form of discrimination based on sexual orientation? Clearly, if we were to substitute the words "sexual" for "racial" and "sexual orientation" for "race," we can demonstrate that the reasoning for striking down antimiscegenation laws can be applied to measures banning same sex marriages as well.
The 14th Amendment guarantees the rights and privileges of the United States constitution to all citizens. If we bar gay and lesbian couples access to these rights and privileges, that is a clear violation of the 14th amendment. If a same sex marriage case were ever to go all the way to the US Supreme Court, I'm confident (despite President Bush stacking the bench with staunch conservative justices) that it is very unlikely the Court would overturn 40 years of precedent. In fact, if the US Supreme Court ruled in favor of a ban on same sex marriage, they would also have to strike down the ruling in Loving v. Virigina, which is very unlikely.