Source: Wikimedia Commons

The last time the Supreme Court took up a case on marriage equality was 46 years ago when about one-third of all states in the country still had laws that banned people of different races from marrying each other. This week all eyes are on the High Court as it prepares to hear oral arguments on two cases related to same-sex marriage. At issue is whether gay marriage bans violate the rights those couples have to equal treatment under the law, as guaranteed by the Equal Protection Clause of the United States Constitution. The Court’s rulings on both cases – expected by June – will likely be considered landmark decisions, ones that could potentially result in a dramatic widening of marriage rights for same-sex couples throughout the country … or a preservation of the status quo. The issue, though, harkens back to another, often forgotten, landmark civil rights decision from 1967 that similarly addressed marriage equality and the concept of equal protection of the law,  long before the notion of legalized same-sex marriage was considered even a remote possibility. Appropriately titled Loving v. Virginia, the case before the Court concerned the fate of its two plaintiffs: a black woman and a white man who had married each other in Washington D.C., but lived in Virginia, one of almost 20 mostly southern states in the late 1950s that still enforced anti-miscegenation laws prohibiting whites from marrying people of color. (Virginia, it turns out, hasn’t always been for all lovers.) In a unanimous decision, the Court ruled that such bans were in violation of the Constitution’s Equal Protection Clause, ending the last piece of explicitly legalized segregation in America.

The plaintiffs

In 1958 Mildred Jeter, a black woman, and Richard Loving, a white man, were married in Washington D.C. Upon retuning shortly thereafter to Virginia, police raided their home in the middle of the night, arresting the couple on felony charges for breaking the state’s anti-miscegenation law, known as the Racial Integrity Act, which made it a criminal act for any white person to marry any person of color. In January 1959, the two –- a bricklayer and a homemaker — pled guilty in state court. A trial judge sentenced them both to one year in prison, suspending the sentence on condition that they leave the state and not return for 25 years. In considering his verdict, the judge wrote:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

The Lovings moved to Washington D.C., where their union was legally recognized. They had no intention of becoming activists, but longed to return to Virginia. In 1964, as Congress debated passage of the Civil Rights Act, Mildred Loving wrote to Attorney General Robert Kennedy, asking if the new law could help them. They were referred to the American Civil Liberties Union, who took up the case, filing suit in federal court against the State of Virginia. Three years later, after several appeals, the case reached the Supreme Court.

Anti-miscegenation laws in the U.S.

Source: Wikimedia Commons

Almost every state in the country has had some form of anti-miscegenation law in its history. By the end of World War II, about 40 states still had active anti-miscegenation laws on the books, including California. In 1948, the California Supreme Court ruled In Perez v. Sharp that the state’s anti-miscegenation statute violated the Fourteenth Amendment of the U.S. Constitution. It became the first state since Ohio in 1887 to repeal its anti-miscegenation law. Throughout the 1950s, numerous other states followed California’s lead, and by the start of the Loving’s Supreme Court case, the remaining 16 holdouts were almost all in the South.

The Court’s Ruling

The Court unanimously overturned Virginia’s anti-miscegenation law, rejecting the state’s defense that the statute applied equally to both blacks and whites. It held that drawing distinctions based on race were generally “odious to a free people,” and should therefore be subject to “the most rigid scrutiny” under the Equal Protection Clause. The Virginia law, the Court stated, had no legitimate purpose except blatant racial discrimination as “measures designed to maintain white supremacy.” Delivering the opinion of the Court, Chief Justice Earl Warren wrote:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. … To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The decision effectively overturned all state laws that prohibited any kind of interracial marriage. In several states, though, some of the statutes remained on the books, even though they were no longer legally enforceable. Alabama in 2000 was the last state to officially remove an anti-miscegenation provision from its state constitution. The ballot measure passed by a 60 percent margin. But nearly 526,000 people voted to keep the provision in place. In 2007, on the 40^th anniversary of her Supreme Court case, Mildred Loving – who died the following year at age 68 – mentioned same-sex marriage in reference to the ongoing struggle for imarriage equality:

I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry… I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Beneath the presentation is a diagram by the NY Times illustrating the various outcomes of the case.

Note: the presentation is best viewed in full-screen mode; use the arrows to advance and zoom in/out on any text or image

Possible outcomes

Source: New York Times. Click to view original image.

Download the whole guide (PDF)

For the better part of the past decade, California has been engaged in an epic battle over, well, getting engaged. The multiple court cases, votes, legal victories, reversals, protests, celebration and more protests have kept same-sex couples in an ongoing state of marital limbo and made it downright confusing to keep track of where things stand.

The latest

On December 7, after months of anticipation, the U.S. Supreme Court announced that it would tackle the issue of same-sex marriage by examining two different cases. The first case involves deciding on the constitutionality of the Defense of Marriage Act (DOMA), and will examine whether the government can deny federal benefits to legally married same-sex couples.

In a more surprising move, the court also decided to review a lower court’s decision in February that ruled California’s Proposition 8 unconstitutional on the grounds that it violates the U.S. Constitution’s Equal Protection Clause. Following that earlier ruling, opponents of gay marriage appealed to the Supreme Court, who will now likely hear arguments next spring. Its decision on the issue could have national ramifications in determining whether or not gay couples have a constitutional right to marry.

How we got here

It’s been a long, strange trip to say the least.  For the sake of brevity, let’s start in 2008 (although the battle got heated years before that – just scroll through this interactive timeline for all the gritty details). In June of that year, counties began issuing marriage licenses to same-sex couples. This started a month after the California state Supreme Court  (not federal) overturned the existing ban, The court ruled that marriage was a fundamental right that could not be denied based on sexual orientation. And over the next six months, thousands of same-sex couples in California got married.

A short-lived celebration

But the honeymoon was cut short during the 2008 presidential election that November, when just over half of California voters approved a ballot measure known as Proposition 8 (which supporters labeled the “California Marriage Protection Act”). The measure trumped the court’s earlier decision and amended the state’s Constitution by adding the provision that “only marriage between a man and a woman is valid or recognized in California.” Interestingly, the same court also later rejected efforts by gay marriage advocates to strike down the ban.

Bringing it to the feds

Less than two years after Proposition 8 passed and was upheld by the California Supreme Court, the tables shifted yet again. The case was brought to a federal court in San Francisco, and in 2010 presiding Judge Vaughn Walker ruled that the ban – although popularly approved by voters – was unconstitutional. In the decision, he wrote that the Equal Protection Clause of the U.S. Constitution (in the Fourteenth Amendment) guaranteed equal rights to same-sex couples, including the right to marry.

In an interesting twist, Judge Walker (who has since retired from the bench) later announced that he was gay with a longtime partner. Backers of the ban argued that the judge was biased in his ruling and should have recused himself from the case. This development, however, did not override the judge’s decision. The case was then appealed to the higher Ninth Circuit Court who uphold the lower court’s ruling.

What made the Ninth Circuit’s ruling different from the others?

In their 2-1 decision this month, the Ninth Circuit judges upheld Judge Walker’s decision: they determined that the ban deprived gay and lesbian couples of their guaranteed civil rights, and was therefore a violation of the Constitution’s Equal Protection Clause. But the two courts used different reasoning in deciding the case. In the lower court’s decision, Judge Walker examined whether same-sex couples had a constitutional right to marry, and ruled that they did. The Ninth Circuit judges, on the other hand, avoided this question, instead focusing explicitly on how Proposition 8 singled out same-sex couples and deprived them of a right that they had previously won. On this issue, the court determined that there was a lack of equal treatment.

The judges on the Ninth Circuit essentially said that Proposition 8 is unconstitutional not because it prevents gay couples from getting married, but because it creates different tiers of privilege for different types of people. And that, they ruled, goes against the constitutional mandate that citizens receive equal protection of the laws.

In the ruling, Judge Stephen R. Reinhardt wrote:

 ”All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage.’ Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”

Now what?

On February 22, two weeks after the Ninth Circuit’s decision, ProtectMarriage.com, a coalition of conservative and religious groups that have long backed the ban, asked the Ninth Circuit to rehear the case with a larger panel of judges (eleven of them, instead of three). In early December, the U.S. Supreme Court decided to take on the issue – probably this spring – and its nine justices will now get the final word.

What are common arguments for and against same-sex marriage?

Proponents of same-sex marriage argue that the freedom to marry is a fundamental right in American society that should extend to all couples regardless of gender. Denying gay and lesbian couples this right, they argue, is discriminatory, illegal, and based only on prejudice.

Opponents argue that marriage is a cherished institution historically defined as a union between a man and a woman. Allowing same-sex couples to marry, they insist, will fundamentally weaken and undercut the conventional purpose of marriage (namely procreation and child rearing). Factions within a number of religious groups have also been vocal and politically active in opposing gay marriage, arguing that, among other things, it is contrary to God’s will and normalizes homosexual behavior (that they consider a sin).

“I think same-sex couples should be able to get married.”

And with that, Obama made history as the first sitting American president to endorse same-sex marriage.

Although Obama’s stance on the issue doesn’t change any existing laws, and his endorsement was almost certainly pressured forward after recent unexpected remarks on the issue by both his vice president and education secretary, (who independently voiced support for same-sex marriage), the president’s statement marks a watershed moment in one of this nation’s biggest and most contentious social issues. Because even as the country remains bitterly divided about it, a presidential endorsement packs a pretty powerful punch in influencing the debate.

The legal status of same-sex marriage around the U.S. (NPR)

For Obama, whose position on same-sex marriage has for decades, swayed like a pendulum, this latest statement marks the momentous end ( at least for now) of his drawn out, self-described “evolving” stance on the issue. Because, when it comes down to it, Obama is, above all else, a professional politician. Sure, he has strong personal beliefs and values. But his impressive political success has always depended on the ability to delicately balance priorities and values, and to find the comfortable middle ground to retain a solid support base.

Bottom line for a cautious politician: row the boat, but try not to rock it too much!

Given all that, it’s little surprise that the guy’s balked at supporting same-sex marriage.I mean, regardless of your stance on it, this issue’s about as heated as it gets – pretty much the equivalent of political heart burn. Just a day before Obama’s big endorsement, voters in North Carolina (where the Democratic Convention will be held) approved a constitutional amendment banning both same-sex marriages and civil unions (a vote Obama expressed disapproval about). North Carolina is just one of 30 states that have voted in favor of constitutional amendments defining marriage as a heterosexual union. And a recent Washington Post-ABC News poll finds that while the contingent of American’s supporting gay marriage has increased in recent years – to just over 50 percent – there is still a ton of strong opposition, especially in many of the swing states that Obama needs to win in the upcoming election. Currently, eight of those 10 swing states don’t allow same-sex marriage (Iowa and New Hampshire are the exceptions).

If America were to legalize same-sex marriage, it would hardly be the first country in the world to do so. Actually it wouldn’t event even make the top 10! Currently, 10 countries allow same-sex marriages. Think you know which one’s they are? Some might surprise you. Take a look at the Washington Post’s slideshow to find out.