Mixed-Up on Gay Marriage

Black people, better than most, should understand the importance of being able to choose who to love and who to marry.

"As to mixed marriages, the most delicate question of all, it is to be noted that 29 states - all those of the South and many in the Southwest - forbid it. In the North, such marriages are frowned upon, and represent an almost insignificant percent."

--The American Negroes, special bulletin published by the U.S. Information Agency, an adjunct of the State Department, 1957

-So, you wanna get married?

After years of playing (or getting played by) the field, you've found that special someone you consider irreplaceable. You agree to be together happily ever after, or for as long as you can stand each other. You tell family, friends, perhaps even former significant others. But don't forget the most important phone call of all: to your state or local government.

Five decades ago, if you and your spouse-to-be were of different races, most state governments not only would have nixed the proposed marriage, but your marriage would have been voided, your children by any previous marriage taken from you by the state, and you could have been fined and/or imprisoned for up to 10 years. Many of us (rightly) recall the case of Richard and Mildred Loving, the interracial couple who took their case to the U.S. Supreme Court and got laws against interracial marriage banned. The 41stanniversary of the June 12 Supreme Court ruling will be especially poignant this year after the recent passing of Mrs. Loving.

But it obviously wasn't just the Lovings who had to fight for the right to choose a spouse without government interference. A year after the marriage police in Virginia arrested the Lovings, Stetson Kennedy published the satirical book Jim Crow Guide. In chapter five, "Who May Marry Whom," he discussed the many ways that interracial marriage was limited by government.

In 1949, Clark Hamilton was a 20-year-old black veteran sentenced to serve three years in the Virginia penitentiary for marrying Florence Hammond, a white woman. As Kennedy wrote: "The couple had moved to Maryland, and his sentence was suspended after he pleaded guilty. But while awaiting trial he served 82 days in a Virginia jail, and his marriage was declared void."

There was the case of David Knight, a 23-year-old white Navy veteran who in 1940 was sentenced to five years in the Mississippi penitentiary for marrying Junie Scradney, a white woman, after it was revealed in testimony that he was the great-grandson of a black woman. In 1953, Judge Wakefield Taylor of Oakland, Calif., took away the two young children of Barbara Smith Taylor after she divorced her husband and married a black man.

Given this history, it might be reasonable to conclude that black people in particular would be opposed to laws limiting marital choices among adults. Unfortunately, there are many black people who are not only critical of interracial marriage, but also support banning gay or same-sex marriage today. According to a Pew Research Poll taken after the Massachusetts Supreme Court upheld same-sex marriage, far more blacks than whites disagreed with the court's decision. And that doesn't even include what is said at black barbershops.

As columnist Earl Ofari Hutchinson notes, many blacks "seethe" at the comparison. As the argument goes, interracial marriage should not be compared to gay marriage because of the oppression blacks have suffered. Hutchinson dismisses that as being "self-serving." It is also myopic, a case of a former slave putting on his former master's clothing and wanting others to be treated as slaves.

The way to view this issue is to understand that government prohibition against marriages between consenting adults is a form of government oppression and a denial of individual liberty. In 1948, when the Supreme Court of California became the first state to strike down a ban on interracial marriage, Justice Roger Traynor wrote on behalf of individual liberty: "A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable." [Emphasis added]

If you do find that someone special whom you consider irreplaceable, why would you want or need the government to give you permission to marry? At most, government should, in this case, fulfill the role of a clerk who takes down your basic information and files it away. For citizens making marital plans, we should give the government the equivalent of name, rank and serial number.

My former Cato Institute colleague David Boaz suggests that privatization is a "simple solution" to the battle over marriage in its various forms. "Make it a private contract between two individuals. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. This would "allow gay people to marry the way other people do: individually, privately, contractually, with whatever ceremony they might choose in the presence of family, friends or God."

When it comes to our voluntary, consensual associations with other adults, we may need to give the government notification, but that should not be confused with seeking permission. If there was ever an issue in which government and other third parties should butt out, it is the choice of a spouse. My conservative friends who say "you can't legislate morality" nevertheless want to do so when it comes to gay marriage.

Gay people are now fighting for the right to marry the person they choose, someone they consider irreplaceable. I hope they get what they want. I would also advise that they try to find a client with a surname like Liberty or Freedom to be a plaintiff. It worked out for the Lovings.

Casey Lartigue is a former policy analyst with Cato's Center for Educational Freedom