In 1967, the Supreme Court in Loving V. Virginia unanimously ruled as unconstitutional anti-miscegenation laws that prevented mixed-raced couples from legal marriage. This was in spite of polls that showed that the citizens of Virginia, and I suspect most of the South, favored these kind of laws by over two to one.

Now, looking back four decades, it seems preposterous that miscegenation was even an issue. Only hard-core racists would advocate such a thing now, and no serious politician who valued his or her career would suggest such a thing today.

Even right-wing talk show entertainers wouldn’t back miscegenation laws toady, while forty years ago these laws represented the standard conservative belief.

The lesson: culture changes, always and already. And those changes shift the country toward a more open, permissive, and progressive society.

The historical parallels with the fight against anti-miscegenation laws and the struggle to gain legal marriage recognition for gays and lesbians are unmistakable. Even though the majority of citizens still oppose gay marriage, that number is shrinking too.

Turn the clock ahead four decades: will gay marriage will not be a serious issue? While fundamental religious types railing against gays and lesbians will surely still exist at the margins, just as there are hard-core racists today who, if they had the power, would ban race mixing, the vast majority of both conservative and liberal folks will simply not care.

Oregon’s vote is simply another step along a long, long road.

"Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of the Sisters (1925) 268 U.S. 510, 534- 535), this right is irrelevant to people who do not have children. Yet, everyone who has children enjoys this fundamental right to control their upbringing. A similar analogy applies in the case of marriage. Everyone has a fundamental right to “marriage,” but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings."

In re Marriage Cases, Cal. App. 2006, McGuiness, P. J. (writing for the majority.)

“ . . . because of how this institution [marriage] has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner.”

“That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings."

And there was a time in this country when marriage was legally defined as a union between two people of the same race, and only they were legally eligible to enjoy the benefits of and engage in this fundamental right.

My argument is that the definition of marriage itself is evolving just as it did with regards to anti-miscegenation laws, which under the implications above ought to still be in force, since that’s how marriage was traditionally “defined.”

In the case of legal recognition for homosexual unions the change will emerge from the legislative branch rather than the courts as it did in the case of Loving V. Virginia (which is perhaps how it should be). But is seems hopelessly naïve to argue that since a governmental or cultural institution (and marriage is both) has been defined in a certain way, than that’s it -- game over. “Traditional moorings” are just fine, but given the cultural tides that wash around them, they do need rebuilding from time to time.

I take it you don’t see legal recognition of gay and lesbian unions as an inevitability.

The homosexual movement affirms that gender is a deeply important human category. Sexual orientation as a concept presumes that gender exists and is an important category for human relationships. It would be odd to presume that gender is all important to adult romantic relationships, yet retains no significance beyond that.

The problem with the (horribly over used) Loving example is its power comes from mere analogy. The problem with analogy is it is exactly that: a mere analogy.

Its weight raises and falls on the strength of the analogy. Courts have been quick to dismiss this characterization of marriage law with racial segregation. The point of anti—miscegenation laws were to keep the races apart. No one would seriously argue that that is the point of marriage law. Quite the opposite, the intention of marriage law is to bring the two sexes together. All courts have rejected the loving v Virginia reasoning as inapplicable. Even the Mass Goodridge decision refused to give homosexuals strict scrutiny protection as Loving accorded to race.

Note this curt rebuke of same-sex “marriage” offered by the plurality in Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Loving.

“[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind.”

The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.

As dismissals of the Loving v Virginia case goes, this is rather mild. However – I like it for precisely that reason. It dismisses casually an analogy that doesn’t hold up precisely because it is not the same kind of things being compared.

As the Washington decision illustrates

“We vigorously reject any attempt to link the discriminatory Anti miscegenation laws in Loving with this State’s DOMA. The Washington Court of Appeals in Singer correctly noted:the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman; rather, they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. 11 Wn. App. at 255 n.8. Numerous other courts have all rejected the claim that the decision in Loving somehow challenged state laws reaffirming marriage as the union of one man and one woman.25 Careful review of the historical context of Loving further undermines the dissents’ disturbing attempt to link constitutionally void, racist laws with a historical definition of marriage as between a man and woman. Anti miscegenation laws were anathema to the “color-blind” constitution articulated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson.26 Anti miscegenation laws infringed upon the union of one man and one woman by injecting racial status as a qualification. Such laws contradicted the fact that a man and a woman of any race have the natural right to marry and have children. This right is protected by the United States and Washington State Constitutions. Racially discriminatory anti miscegenation laws also violate the right to marriage between a man and a woman. Here, in contrast, the State’s DOMA simply confirms the common law understanding of marriage as a union of a man and woman. It is the dissent that would abrogate the common law understanding.”

<h2>On this topic, I had a literal rude awakening when my radio alarm (set to KPOJ) came on at 7 this overcast Earth Day Sunday morning, and I heard a Clear Channel reporter being interviewed and repeatedly saying how this decision was "against the will of Oregonians." Oh, really? I'm an Oregonian, and I'm all for it. I sure don't appreciate having a closed-minded, backwards conservative make blanket statements on my behalf, especially on a radio show that is considered progressive. Just because this guy doesn't want "gays to be able to be Boy Scout leaders" or "a sexually confused, transgender person to be able to use whatever restroom or locker room they want" (his words!) doesn't mean all Oregonians are in agreement with him. Just had to get this out before I start my day celebrating diversity. :D</h2>