WASHINGTON – To some people in Virginia, the fight over legalization of same-sex marriage echoes a decades-old battle over the state’s 1924 law banning marriage between white and black people.
“You’re talking about pure prejudice as the basis of both laws,” argued Philip J. Hirschkop, who as a young lawyer in the 1960s represented an interracial couple that successfully challenged Virginia’s ban on “miscegenation,” or mixing of the races.
But opponents of gay marriage reject the comparison.
“It’s a slur and a slander on all those Americans who understand that there is something unique and special about husbands and wives coming together in marriage,” said Brian Brown, president of the National Organization for Marriage, a Washington-based group that opposes same-sex marriage.
In 1958, two Virginia residents, Mildred Loving, a black woman, and her white husband, Richard Loving, went to Washington, D.C., to get married. After they returned to Virginia, police burst into their bedroom in the middle of the night, and arrested them for violating the Racial Integrity Act of 1924. Their one-year jail sentence was suspended on the condition they leave Virginia for 25 years.
The U.S. Supreme Court, in a unanimous 1967 decision, struck down the Virginia law – and similar ones in roughly one-third of the states.
“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,” Chief Justice Earl Warren wrote in the landmark ruling.
In February, U.S. District Judge Arenda Wright Allen tossed Virginia’s ban on same-sex marriage, concluding it, too, violated the Constitution’s Equal Protection Clause. She also made a direct link to the Loving case of 47 years ago.
“Tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage,” she wrote.
Brown countered there is more to banning gay marriage than preserving tradition.
“It’s biology, not bigotry, that defines the difference between men and women,” he said. “Laws against interracial marriage were obviously wrong, and they had to do with the evils of slavery, and our own history of racism in this country.”
The trial judge in the Loving case had declared, “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 marriage. The fact that he separated the races shows that he did not intend for the races to mix.”
Richard Loving was killed by a drunken driver in 1975, and Mildred Loving died in 2008.
In the same-sex marriage case, the judge issued a stay of her order while it is appealed; both sides expect the U.S. Supreme Court to ultimately resolve the issue, either in this case or a similar one from another state. Virginia Attorney General Mark Herring is not defending the gay marriage ban, which he says is unconstitutional. Instead, an attorney for court clerks in Norfolk and Prince William County is defending it.
The attorney, David B. Oakley, wrote that the judge’s comparison to the Loving case was misguided.
“Unlike infringing on the right to marry based on invidious racial laws, the decision to restrict marriage to couples of the opposite sex is not based on any suspect or irrational classifications,” Oakley wrote.
Blacks support gay marriage at lower levels than whites, although acceptance has risen for both groups. Polling by the Pew Research Center this year showed 43 percent of blacks support allowing gays and lesbians to legally marry.
That’s up from 38 percent last year, but still below the 54 percent support among whites this year. In 2012, the NAACP passed a resolution endorsing same-sex marriage as a civil right.
“When the question is asked about marriage, most people then dig into their beliefs,” said Hilary Shelton, the NAACP’s senior vice president for advocacy and policy, noting that many black people attend church. “So when the question’s asked about marriage, you find that most will say, well, my religion doesn’t support that. But if you ask them if people should be able to legally enter into those contracts, you’ll find the numbers go up astronomically.”
Shelton, who describes himself as an “old-school Midwestern boy” who grew up in an African-American community, said he saw the two bans as comparable.
“The way the NAACP is looking at issues like this, it’s not that we’re necessarily promoting interracial marriage or gay marriage,” he said. “We’re promoting equal opportunity and equal protection under the law, saying that people of the same gender should be able to enter into that same set of contracts as people of two different genders. So it really is a civil rights issue.”
But The Rev. Bill Owens, president of the Coalition of African-American Pastors, which calls itself a traditional family values group, said there is “is absolutely no comparison” between the two bans.
“The ban on interracial marriage was strictly because of the color of a person’s skin,” he said. “We were born a certain color. And you cannot control that.”
U.S. Sen. Tim Kaine, a Virginia Democrat who campaigned against the 2006 Virginia constitutional amendment which banned gay marriage, said that both the 1967 Supreme Court case and this year’s court ruling took on widely accepted norms.
“I mean, look, 10, 15 years ago I didn’t have a problem with it. You didn’t think about it as a ban,” he said. “You just thought of it as, Virginia, like most states, just had a rule about what marriage was. It was kind of like the air that you breathed, you didn’t think about it as a ban.” Gay marriage was already illegal in Virginia when voters passed the constitutional amendment.
Hirschkop, now 77 and living in Lorton, Va., represented the Lovings before the Supreme Court along with Bernard S. Cohen. He said that case and the same-sex case represented the culmination of a change in societal attitude.
“Loving had reached its time. Enough was enough at that point,” he said. “And that’s the story of the same-sex marriage now. It’s reached its time.”