Monthly Archives: March 2014

Reflections on Gay Marriage, Interracial Marriage, and Socially Progressive States

As a historian of equal rights and civil liberties, I was thinking recently about the similarities in the struggle to legalize interracial marriage and the struggle to legalize gay marriage, though of course there are differences as well as similarities. I thought of how some of the same individuals and institutions who opposed interracial marriage in years past later opposed gay marriage and how some of the same individuals and institutions who defended interracial marriage when such a position was not popular later defended gay marriage. For instance, in 2007, both Mildred Loving, one of the plaintiffs in the Loving v. Virginia case that legalized interracial marriage, and Bernard Cohen, one of the main lawyers who represented her, spoke out publicly in favor of gay marriage. Meanwhile, many in the nation mourned the death of Jerry Falwell, a man who went from labeling interracial marriage a sin to labeling gay marriage a sin. Until 2000, Bob Jones University had various anti-interracial dating policies. Now, the university continues to abhor gay marriage. The ACLU, the organization on whose behalf Cohen and Philip Hirschkop represented the Lovings, now strongly supports the legalization of same-sex marriage, as does my denomination, the Unitarian Universalist Association, which adopted a resolution in support of interracial marriage before the Loving decision was handed down. I decided that it would be interesting to examine the correlation between states legalizing interracial marriage and gay marriage early on. I admit I am not the first person to do this, but I am going to use a somewhat different method and take into account more recent developments.

With regard to laws against interracial marriage, states fall into four categories. The first category consists of the nine states where interracial marriage was never banned. The second category consists of the eleven states where interracial marriage was at one time banned but was legalized between 1780 and 1887; after 1887, a sixty-one year hiatus occurred during which no additional states legalized interracial marriage. The third category consists of the fourteen states that chose to repeal their bans on interracial marriage from 1948 to 1967. The fourth category consists of the sixteen states where interracial marriage was illegal until the Supreme Court intervened in 1967. So, I will examine the sixteen states where gay marriage is legal, in the order in which gay marriage was legalized there. I am excluding California from examination, because it was the U.S. Supreme Court that finally made gay marriage permanently legal in California. While I hail this development as a triumph for freedom, the method in which marriage equality came to California makes it difficult to draw conclusions about the state’s political culture.

1. Massachusetts: legalized interracial marriage in 1843 largely due to the efforts of abolitionists; was the second state to repeal its ban on interracial marriage, after Pennsylvania had done so in 1780.

2. Connecticut: never had a law against interracial marriage.

3. Iowa: legalized interracial marriage in 1851; third state to repeal its ban on interracial marriage.

4. Vermont: never had a law against interracial marriage. Perhaps we should say that Vermont, not Virginia, is for lovers.

5. New Hampshire: never had a law against interracial marriage.

6. New York: never had a law against interracial marriage.

7. Maine: legalized interracial marriage in 1883.

8. Washington: legalized interracial marriage in 1868.

9. Maryland: was the second state to ban interracial marriage and the last to voluntarily repeal it. The bill legalizing interracial marriage in Maryland was signed by Governor Spiro T. Agnew in 1967, just months before the Supreme Court legalized interracial marriage in the rest of the South.

10. Rhode Island: legalized interracial marriage in 1881.

11. Delaware: ban on interracial marriage not repealed until the Supreme Court struck it down in 1967.

12. Minnesota: never had a law against interracial marriage.

13. New Jersey: never had a law against interracial marriage.

14. Hawaii: never had a law against interracial marriage.

15. Illinois: legalized interracial marriage in 1874.

16. New Mexico: legalized interracial marriage in 1866.

It is apparent that a correlation exists between states legalizing interracial marriage and legalizing gay marriage. While only 18% of states in the Union have always allowed interracial marriage, 43.75% of states where gay marriage is legal have always allowed interracial marriage. Indeed, only two of the nine states that never banned interracial marriage (Alaska and Wisconsin) still do not permit gay marriage. Meanwhile, of the states that once banned interracial marriage and have now legalized gay marriage, 77.7% of them repealed their bans on interracial marriage before the 20th century. In the country as a whole, little more than a third of the states that originally banned interracial marriage legalized it before the 20th century. Certainly, the correlation is not a foolproof predictor of which states will voluntarily legalize same-sex marriage next. Michigan legalized interracial marriage in 1883, but its ban on gay marriage was struck down by a federal, not state, judge, and the decision is being appealed by the governor. Pennsylvania, the very first state to repeal its ban on interracial marriage still has a law against gay marriage. Yet it is also worth noting that of the sixteen states that banned interracial marriage right up until the Supreme Court intervened, only one currently allows gay marriage. It seems bigotries of a feather flock together.

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Ponies, Ducks, and Right-Wing Hypocrisy

I recently read a story about a boy in North Carolina by the name of Grayson Bruce who was bullied by fellow students for bringing a My Little Pony backpack to school. Rather than simply punishing the bullies, school officials decided that the backpack was causing the bullying and forbade him from bringing it to school again. Thankfully, these officials were subjected to a public outcry for the fact that they blamed the victim, and Bruce is now once again allowed to bring his backpack to school. What I could not help but notice in all of this, however, was that with the exception of Glenn Beck, who in the last year or so has really become more of a libertarian than a conservative, there did not seem to be a significant conservative outcry against the school officials. And I find this very interesting, because I seem to recall that about three months ago, a certain duck hunting mogul named Phil Robertson got suspended by A&E after he said gays were going to Hell and implied blacks were better off under Jim Crow. And many, though not all, conservative public figures expressed outrage and claimed that the man’s right to freedom of expression was violated. Never mind the fact that A&E is a private company, not a government institution, and that based on the legal premise many conservatives seemed to advocate in this case, an employee who calls their boss a turd on Facebook cannot be fired. To hear many people talk, Robertson’s right to free expression was violated in the same way that gay Russians’ right to free expression is violated. So I hoped to see these conservatives come to the defense of Grayson and demand that the school respect his right to express himself by taking a My Little Pony backpack to school. But of course, most of the conservatives who howled when ¬†a multimillionaire was suspended by a private company for making offensive remarks were silent when a nine-year old boy was prohibited from bringing his backpack to school because the colorful pony on the backpack was used an excuse by some of his peers to behave obnoxiously. And come to think of it, I seem to recall a lot of conservatives being very enthusiastic of the idea of the government banning flag desecration. So a message to take from recent events is that if you want Sarah Palin to defend your right to free expression (or in the case of Phil Robertson, defend it when it wasn’t under attack to begin with), first you have to make millions of dollars in the duck hunting business, then you have to use a Bible quote to claim that a minority group is going to Hell.

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Endorsing Michelle Nunn

Last weekend, I saw Michelle Nunn speak at my university campus. As most of my Georgia readers probably know, ¬†Michelle Nunn is a Democrat who is running for a U.S. Senate seat representing Georgia. I went to the event, because I wanted to form an opinion about whether or not to vote for her. Now, I don’t want anyone to get the wrong impression. There is not a snowball’s chance in Hell that I would vote for Phil Gingrey or Paul Broun, the two likeliest Republican nominees for the race. The question I wanted to answer for myself was whether or not I was going to vote Democratic or third party in this election. In the 2010 Georgia Governors’ race, I voted for Libertarian Party candidate John Monds, because Democrat Roy Barnes decided to engage in a one-upsmanship with Republican Nathan Deal over who could be the most homophobic. I was much more open to Nunn’s candidacy, because of an article I read about her support for same-sex marriage. According to the article, “Nunn said she agreed with the U.S. Supreme Court decision that left the definition of marriage to the individual states. ‘I also believe that marriage is not only a legal construct, but a sacrament, and every religious institution has to be able to define it for themselves,’ she said. But on a personal level, Nunn said she favors marriage equality.” The strong impression I got was that she supported the legalization of gay marriage, but I almost lost my balance stumbling through all of the commas, codas, semicolons, and “buts.” It seemed possible that she might, under campaign pressure, go the Mary Landrieu route of, “I personally believe in gay marriage, but I have to oppose it as a matter of policy because its what my constituents want.” Yes. There’s a Senator who actually said something to that effect. I was also concerned because of the influence she cites her father, Sam Nunn, as having on her. Sam Nunn was a Democratic Senator from Georgia who opposed ENDA and was one of the main Democrats to oppose Bill Clinton’s proposal to allow openly gay and lesbian individuals into the military. It was partly due to the bigoted obstructionism of Nunn that Clinton folded like a cheap suit and left the country with the abomination of “Don’t Ask, Don’t Tell.” So in January, I decided to email her a series of five questions to determine her commitment to gay rights. The questions were as follows: “1. Do you support equal adoption rights for gay couples? 2. Would you support the legalization of same-sex marriage in Georgia? 3. Do you support the full repeal of DOMA? 4. Do you believe that “Don’t Ask, Don’t Tell” was a bad policy and that repealing it was the right thing to do? 5. Do you support ENDA?” As you can probably tell, I tried to word the questions in such a way that answering them would require her to be as concrete as possible in her stances. For instance, in the question about “Don’t Ask, Don’t Tell,” I made sure that an affirmative answer would have required her to admit not only that President Obama was right to repeal the policy but also that it never should have been in place to begin with. I still have not heard back. So when she was taking questions after her speech, I asked her whether she would support the repeal of Section 2 of the Defense of Marriage Act. This section, left intact by the Supreme Court, stipulates that, for instance, Virginia can refuse to recognize a same-sex marriage performed in Vermont if the married couple moves to the Old Dominion. Repealing this section, of course, would not require Virginia to legalize gay marriage, only to recognize the marriages of gay residents if these marriages are performed in other states. (As you probably know, I think the federal government should force all fifty states to legalize gay marriage, but that’s another matter.) President Obama has consistently favored the repeal of Section 2, along with the rest of DOMA, while also saying he believes gay marriage should be decided by the states. Anyway, Nunn gave a fairly lengthy response–without actually answering my question. This left me not knowing anything more about her stance than I did before going to the event. It also left me feeling disconcerted, as it puts me in a precarious position. Nunn seems to be a good candidate, and I would like to vote for her, but I do not want to end up with someone who is not willing to help finish killing DOMA once and for all. Still, I am endorsing her for Senate. As referenced earlier, she has made far more of a commitment on gay marriage than Roy Barnes did in 2010 or than Democrat Jim Martin did when he ran in 2008 for the seat Michelle Nunn is currently trying to get. And she legitimately seems to have parted ways with her father on gay rights. I am going to make a judgment call and assume that her refusal to take a position on Section 2 of DOMA is motivated by an attempt to win the election and does not indicate support for big government discriminatory legislation. Let’s hope I’m correct.

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Momentum for Gay Rights Keeps Going

If I regarded the opposition to equal rights for gays and lesbians as anything other than bigoted bile, I might be feeling some sympathy for opponents of gay rights after what happened in Arizona. You see, Governor Jan Brewer vetoed a proposed Arizona law that would have allowed business owners to discriminate against gays if discrimination was part of their religious values. The bill, of course, did not change Arizona law, because private-sector discrimination against gays is already legal in Arizona, but it was an opportunity for Republican lawmakers to please socially conservative constituents by continuing to appeal to homophobia. Brewer, of course, is no Rockefeller Republican when it comes to gay rights. She is virulently opposed to same-sex marriage and even domestic partner benefits for same-sex couples. Homophobic social conservatives thought they could count on her. But unlike some politicians, she understands that you can only fight the tide on civil rights for so long before relenting. I believe that everyone knows my views on this topic, but I wanted to articulate precisely why I believe that, for example, a baker refusing to bake a wedding cake for a gay couple or a photographer refusing to photograph a same-sex wedding deserve to have their businesses shut down. To put it simply, a business is not a church. It is a for-profit institution that engages in commerce with the public. The fact that a business owner is very religious does not transform their business into a church. Therefore, the legal right of churches to engage in discriminatory actions (albeit perhaps at the expense of their tax-exempt statuses) cannot apply to businesses. While even some people who support workplace protection laws for gays may balk at the idea that a baker would be compelled to bake a cake for a gay couple or have their business shut down, such a policy is perfectly fair. Businesses must service everyone equally, regardless of characteristics like race or sexual orientation. A business may refuse service to someone because they are not wearing a shirt or are smoking, but walking shirtless or smoking are chosen behaviors. They are not the same as immutable traits like race or sexual orientation. A business that refuses service to customers because those customers are gay cannot be permitted to use their religion as a trump card that allows them to do whatever they want. Similarly, religious schools are not churches. They also operate like businesses, charging money for people to attend. They cannot claim a right to discriminate against people based on characteristics like race or sexual orientation. While conservatives who favor allowing religious business owners to discriminate tend to do so based on an opposition to gay rights, some principled libertarians oppose discrimination but believe that business owners have a right to discriminate if they so choose. The problem with this stance is that it involves hard core libertarians blending the praiseworthy belief that individuals should be free to do what they want as long as it does not directly hurt anyone else with the incorrect belief that a business discriminating does not hurt anyone. Denying someone goods or services, to say nothing of a job or a promotion, absolutely hurts them directly. As the saying goes, you have a right to swing your fist, but not when it collides with someone else’s nose. The argument that customers denied service can simply go elsewhere fails to hold water. In the first place, why should a gay couple have to go seek out another bakery just because a baker thinks gay marriage is an abomination and therefore refuses to service them? (Despite, of course, the fact that if the bakery catches fire or gets robbed, the firefighters and police officers who show up are paid partly by tax dollars from the gays that were denied service.) This is a classic case of the heckler’s veto, in which people who engage in abominable behavior are accommodated. Additionally, what if every business owner in a community decides to discriminate? It may seem unlikely, but that is exactly what the law proposed in Arizona would have allowed. I also find it amusing that the same conservative Christians who have constantly used the hammer of government to promote their belief in gay inferiority are now crying about “big government” promoting gay rights.

In other gay rights news . . .

If the court decisions on gay marriage in Oklahoma and Utah did not convince you that every state is in play, the court decision striking down Texas’ ban on gay marriage should. All of these decisions will be appealed, but it is clear where the momentum is headed. I also want to congratulate Kentucky Attorney General Jack Conway for refusing to appeal the court ruling mandating that Kentucky recognize out-of-state gay marriages. Rand Paul’s statement attacking the decision and defending “traditional marriage” just reaffirms what I already knew: you can usually trust the Pauls to abandon their supposed belief in limited government when the opportunity for gay bashing arises.

John Hickenlooper, the Democratic governor of Colorado, finally voiced support for gay marriage this week. This is a marked contrast to his previous refusal to go on record in favor of gay marriage and his ignorant, smug boast that after he signed a bill legalizing civil unions, “all Coloradans have equal rights.” Hickenlooper was among the last prominent Democrats to join the equality train. I say better late than never, but 2014 is VERY late. If Hickenlooper runs for president in 2016, as some people have speculated, I’ll be quite unenthusiastic.

A group of Western Republicans is fighting to get gay marriage legalized. The group is led by former Republican Senators Alan Simpson and Nancy Kassebaum. I’m not surprised about Simpson, but Kassebaum does surprise me, as she had a strongly conservative voting record on gay rights as a Senator. Still, it makes some sense. Kassebaum is very much the traditional Republican. Her father, Alf Landon, ran against FDR in 1936. In a regional alignment that seems unthinkable today, Landon won only Maine and Vermont, while FDR won every other state. Catering heavily to white supremacists, FDR won 97% of the vote in Mississippi and 98.6% of the vote in South Carolina. Landon favored an anti-lynching bill and criticized the rampant racial discrimination in New Deal programs and FDR’s pandering to Southern segregationists. He would go on to help an aspiring black radio host get a radio license in 1950. As a rookie Senator, Kassebaum went against President Ronald Reagan by working to impose strong sanctions on the South African government due to apartheid. Ironically, at least two of the Senate Republicans who stood with Reagan in opposition to strong sanctions, Strom Thurmond and Jesse Helms, had been Democrats for much of their adult life, while Kassebaum was an ancestral Republican. The actions of Simpson and Kassebaum represent an attempt to bring the GOP back to its roots. It reminds me that the support for making the GOP friendly to people who are not white, heterosexual, or male, comes not only from socially liberal youngsters but also octogenarian and nonagenarian traditional Republicans like Simpson, Kassebaum, William G. Milliken, Daniel J. Evans, and, if you want to count folks who left the party, Lowell Weicker.

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