Gay Marriage 2013: Can Gay Marriage Be a Federal Right? Just Ask Interracial Couples


On May 14, Governor Mark Dayton officially added Minnesota the growing number of states which have endorsed the equal marriage rights of same-sex couples. Along with Minnesota, in the past decade 11 other states have supported the legalization of same-sex marriage (in addition to eight other states which have also legalized civil unions). With a growing number of Americans supporting gay marriage (as much as 58% according to a recent poll), many people are left wondering whether the national legalization of same-sex marriage is the next step. However, as President Obama has acknowledged, the ability to define marriage has never been a power that has rested in the hands of the federal government. Despite these limitations, there may be a constitutional basis upon which the fundamental rights of gay couples to marry could be extended across the United States.

One of the most applicable precedents resides in the landmark 1967 case of Loving v. Virginia. At the time of the trial, anti-miscegenation laws (which outlawed the ability of people of different racial backgrounds to marry) were still in place in many states across the U.S. In Loving, Mildred Jeter Loving (an African-American woman) and Richard Perry Loving (a white man) wished to get married in Virginia, where interracial marriage was a crime. After being forced by Virginia authorities to leave the state and move to the District of Columbia, the Lovings appealed to the American Civil Liberties Union (ACLU) for help. Angered by the injustice done to the Lovings, the ACLU then filed a motion on their behalf claiming that anti-miscegenation laws set in place by Virginia were in violation of the Fourteenth Amendment.

Eventually, in a unanimous decision, the U.S. Supreme Court ruled that Virginia’s interracial marriage ban was indeed a breach of the Due Process Clause and Equal Protection of the Fourteenth Amendment. Reflecting on the case, Chief Justice Earl Warren stated: “Marriage is one of the 'basic rights of man,' fundamental to our very existence and survival … 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.”

So what does a case like Loving v. Virginia mean for the future of same-sex marriage? Reflecting upon the statement made by Justice Warren, if marriage is indeed a “basic right of man” and the “freedom to marry, or not to marry … cannot be infringed by the State”, than any laws such as the 1996 Defense of Marriage Act, (which officially defined marriage as occurring only between a man and a woman) are in direct violation of the right of gay and lesbian couples to express their natural rights as citizens. If, as shown in Loving v. Virginia, the Supreme Court has the right to strike down laws that violate the concept of marriage as one of the basic rights of men, then it can also be reasoned that any marriage between two consenting individuals (whether hetero or homosexual) should not be violated either.