OBAMA AND GAY MARRIAGE

The Huffington Post
NOVEMBER 8, 2008


Pete Cenedella
Posted November 8, 2008 | 10:04 AM (EST)
The Cutting Edge of Civil Rights: Why President Obama Must Lead on Gay Marriage


It was the best of elections, and it was the worst of elections. Like everyone but the Republican base, I've been savoring Obama's stunning and beautiful vistory -- YES WE DID; but there's no denying anymore that the passage of anti-gay propositions is a fat dead fly floating in the middle of the colorful punch bowl.

Now that some of the giddy elation of electing Barack Obama president has begun to settle, a bitter irony is sinking in: the same historic turnout among African-Americans and Latino voters in California that helped Obama shatter the ultimate color line is also largely to blame for the passage of Proposition 8. Blacks voted to strip some of their fellow citizens of civil rights by margins of at least 7-to-3, if exit data is accurate; and a late ad campaign appealing to the religious values of Latinos seems to have hit its electoral mark as well.

Like it or not, we must admit that civil rights were treated as a zero-sum-game here: that in the end, the most startling and joyful civil rights triumph of our history for non-white Americans was in part won at the direct expense of gay Americans. How does this suck? Let us count the ways.

First, it provides a bracing and sudden puncture to the illusion of post-everything politics. In an unfortunate inversion of Obama's most inspiring stump speech rhetoric, we are the United States of America, indeed, but sadly we are also a gay America and a straight America; a black and Latino America and a white America.

Second, Prop 8 didn't merely fail to open up more civil rights; it actively took rights away. This is a dangerous step from a constitutional perspective. A progressive view of U.S. history, in a nutshell, goes like this: The founders and the framers wrote a constitution that in word if not deed enshrined equal rights for all in a secular state, and we keep getting progressively closer to making that equality a reality on the ground. Ending slavery, women winning the right to vote, dismantling Jim Crow court case by court case, and the emergence of civil unions all represent key moments in this progressive extension of rights -- or the progressive realization in reality of the rhetorical rights enshrined in the Constitution. Because the California legislature had already conferred the right to same-sex marriages, Prop 8 represents is the opposite -- a fully regressive view of our constitution, stripping rights after they have been conferred. By actively restricting rights this way, Prop 8 is the very picture of the electoral danger our framers feared -- the tyrrany of the majority against the minority.

Third, it's a trend. Prop 8 was only the most visible of four anti-gay measures passed Tuesday. Arizonans and Floridians also chose to vote their fears over their hopes on this subject. And the sweeping initiative in Arkansas actually denies adoption rights to any couple -- gay or straight -- co-habitating without a marriage license; by the way no gay couple can get a marriage license, so this efectively ends hopes for Arkansan gay couples to create even a shadow family.

There's no explaining the way some people use marriage as an arena for all their fears and their prejudices (well, actually there is; it's called religious intolerance and it should have no place in our country). Not so long ago it was African Americans who were in this scurvy boat. Marriage was the battlefield for white America's fears of miscegenation and the dangers of "racial mixing." Across the south, until the late 1960s, state after state still had laws on the books designed to maintain the myth of racial purity and to protect the institution of holy matrimony from the barbarians at the gates -- namely, the descendants of slaves.

In 1958 a black woman from Virginia named Mildred Jeter and her white boyfriend Richard Loving -- the father of the baby she was now carrying -- decided to get married. They were in love, they were about to start a family -- just like a lot of gay people today. They drove 90 miles north, across the Virginia line to DC, where no anti-miscegenation laws prevented them from being wed. Then they drove home to Caroline County, VA -- where soon, a neighbor disgusted by the sight of an interracial couple called the law.

Picture this scene: at 2:00 a.m. on a July night, the county sheriff banged on their door and arrested them for "unlawful cohabitation." They were informed that the DC marriage certificate was no good in Virginia, and taken to the county jail. They had little recourse but to plead guilty, and Caroline County Circuit Court Judge Leon M. Bazile sentenced them to a year in prison. They were offered the alternative of a suspended sentence if they left the state of Virginia, never to return for 25 years.

These details are important. Because every time a social conservative talks about the good old days of states' rights and a "republic" of different legal systems, this is exactly the type of utopia they're longing for. If you want to get married, just move. Leave your job, your life, your family, your home.

The Lovings moved to DC, where they never grew accustomed to urban life. Six years later they ran afoul of the law while traveling across state lines, and this time they reached out to Attorney General Robert F. Kennedy. His office referred them to the ACLU, and the Loving v Virginia case proceeded to wend its way to the Supreme Court.

"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification," the Court decalred in its unanimous ruling against the anti-miscegenation law. "The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. . . . There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

The Loving decision was the death knell for state laws discriminating against interracial marriages. Now we seem to need to learn the lessons all over again. But it's important to remember that without a climate of federal leadership on integration in the 1960s, these laws may never have been exposed for what they were: vestiges of slave time and violations of the Constitution.

Anti-gay marriage laws passed by the states -- whether through legislatures or pernicious ballot initiatives -- are every bit as unconstitutional as anti-miscegenation laws were. But it's in large part the very constituency who benefited from the Court's rulings in cases like Brown v Board of Education and Loving v Virginia -- African Americans -- that has helped provide Prop 8's margin of victory in California. This sounds like a job for someone with tremendous moral suasion and the power of his character and a bully pulpit from which to teach. It is imperative that Barack Obama, as president, begin to reframe the question of gay marriage to African Americans and Catholic Latinos. He must lead on this issue. He needs to help people see this for what it is: the cutting edge of civil rights in America today.

Hawaii had no anti-miscegenation law on its books. But if Barack Obama's parents had met at the University of Virginia in 1961, our history might have gone very differently. That is why President Obama must spend some political capital to make the case for gay marriage clearly and unequivocally to those of his supporters who need help understanding how their rights and their histories re bound up with the stories of the millions of gay men and women who seek equal protection before the law. Casting gay issues simply as civil rights issues, not moral or religious ones, is long overdue.