Gays, Blacks, Civil Rights, & Marriage:

My post below arguing that sexual orientation may rightly be viewed as a civil rights category is more relevant in terms of whether we include “sexual orientation” into an already existing anti-discrimination code or policy, as opposed to whether we allow gay marriage. The problem, however, is that “sexual orientation as a civil right” today is being discussed in the context of gay marriage. And this is a different, albeit related, question. Marriage is a far more complicated question and raises a whole slew of concerns that are not implicated in the anti-discrimination code question. And many—including Judge Posner whom I cite—support granting to “sexual orientation” civil rights status, but do not support same-sex marriage (although he does support civil unions). Similarly, I’m sure there were many back in the day who supported anti-discrimination codes for blacks in employment & public accommodations, but drew the line at interracial marriages.

And bringing up Loving v. Virginia—the case that held anti-miscegenation laws to be unconstitutional—in many ways complicates the issue more than it clarifies. That case wasn’t just about race—it was about interracial marriages. One objection to comparing sexual orientation to race is that race is unchosen & unchangeable while acting on one’s sexual orientation involves conduct. While there is no question that race is immutable, whether one enters into an interracial relationship puts us in the domain of choice & conduct. In other words, one cannot choose to be black, but if one is, they can choose to look for sexual partners in their own race only, as the majority of individuals within particular races do. If we examine the implications of this logic as well as what we know about the nature of sexual orientation, then we might rightly conclude that, The Ban on Gay Marriages can be seen as even more cruel and unfair than the ban on Interracial Marriages.

I think what is important about Loving is that it did NOT narrowly deal with the issue of interracial marriages using Plessy v. Ferguson dissent like language—that the Constitution forbids any kind of racial classifications. If it did, it would have NO application to the issue of same sex marriage. Rather, the case relied on the fact that there is a “fundamental right” to marry. As Justice Warren wrote, "Marriage is one of the 'basic civil rights of man' ..."

Again, I reference the same Andrew Sullivan article,

The right to marry whomever you wish is a fundamental civil right. That is not contestable in the history of this country's jurisprudence. Now you may argue that marriage is definitionally heterosexual and therefore such civil rights only apply to heterosexuals. But you have to make that case--that civil marriage as currently practiced and enforced is inherently heterosexual--before you can dismiss the notion that it is a matter of civil rights.