The Rise and Fall of the National Organization for Marriage

NOM chair limits ‘Loving’

January 29, 2013, by Jeremy Hooper, Guest Contributor

John EastmanNational Organization For Marriage Chairman John Eastman has written a lengthy treatise for the Heritage Foundation in which he tries to defend the two discriminatory cousins currently before the Supreme Court, DOMA and Prop 8. This one part jumped out:

The Fundamental Right to Marry Under the Due Process Clause.

As a general matter, the Due Process Clause prohibits the government from infringing a fundamental right unless such is necessary to further a compelling governmental interest. In the 1967 case of
Loving v. Virginia, the Supreme Court held that the “freedom to marry” was a fundamental freedom that could not be denied “on so unsupportable a basis as [a] racial classification,” thus rendering Virginia’s anti-miscegenation statute unconstitutional. Many have argued that this holding recognizing a fundamental right to marry applies with equal force to homosexual relationships as it did to interracial relationships, but does it?

Significantly, the Supreme Court in
Loving defined marriage as a “fundamental” right because it is one of the “‘basic civil rights of man,’ fundamental to our very existence and survival.” Yet marriage is “fundamental to our very existence” only because it is rooted in the biological complementarity of the sexes, the formal recognition of the unique union through which children are produced—a point emphasized by the fact that the Supreme Court cited a case dealing with the right to procreate for its holding that marriage was a fundamental right. The Loving Court correctly recognized that skin color had nothing to do with that basic purpose; the racial classification that lay at the heart of Virginia’s anti-miscegenation statute was therefore “invidious” and could not be sustained.
The Constitutionality of Traditional Marriage [John C. Eastman for the Heritage Foundation]

It's no wonder why someone like NOM's chairman would want to distance his cause from the historic Loving decision, since it raises so many questions about marriage and its limitations in the 21st century. But is this conservative legal scholar's read of Loving as straightforward and sound as he makes it seem? Let's examine.

First, for the sake of context, let's flesh out the longer form of the truncated quote block that Eastman cites. The pertinent passage from Loving reads:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). 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 discriminations. 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.
[Loving v. Virginia]

Eastman asserts that it's reproduction that makes marriage "fundamental to our existence." Only problem with that? The words reproduction, procreation, birth, children, or offspring are not mentioned in the Loving opinion. In fact, no term or claim applying to a male and female's in-marriage birthing process is used in the Loving text, nor is there any mention of complementary between man and woman. Eastman is injecting his own modern biases into his read.

So how does the NOM Chair justify his bias injection? Well, he says that the Loving court "cited a case dealing with the right to procreate for its holding that marriage was a fundamental right." This is kind of true, just in the sense that the court did cite a case, Skinner vs. Oklahoma, that involved the human ability to reproduce (the other cited cases, Maynard, concerns divorce). However, the Skinner case, from 1942, was not really about creating life—it was about sterilization and whether such could be used as a punishment for those who had been multiply convicted of "felonies involving moral turpitude." So the key point there was, absolutely, procreation and, specifically, the forcible removable of one's procreative ability. And yes, in 1942, procreation was typically thought of in the same breath as marriage, thus the reason why they two are coupled (exactly one time) in the Skinner opinion. But the issue that led the court to speak up about the need for procreation directly revolved around a notion, forced sterilization, that would undeniably pose a threat to human propagation. Expanding marriage rights so that they encompass same-sex couples—some of whom also produce and rear children, of course—does not pose such a threat. At all.

Moreover, the Skinner court specifically spoke to the fear of a "dominant group" keeping down those who are "inimical," with race being only one factor. And the Skinner court also made strong points about equal protection and selective penalties—points that would certainly seem to apply to DOMA, here in an America where there is dissimilarity in the way some legally married couples are treated in comparison to others.  Key section:

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of "equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U. S. 337.
[Skinner v. Oklahoma]

There is nothing in here that suggests race is the only factor that this court wanted future courts to consider. In fact, the mention of "types" other than race would seem to demand future considerations that were unforeseen at the time.

Which brings us back to Loving. Eastman goes on to claim that "[n]othing in the Loving decision suggests that the fundamental right to marry should be extended to other relationships that did not share that unique attribute." True, insomuch as nothing in Loving instructs succeeding generations on how, exactly, to read and interpret its text. But at the same time, nothing in a fair read of Loving limits its application to only those relationships up for discussion at that particular time.

The Loving court coupled its equal protection findings with a declaration that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." In the four-and-a-half decades since Loving (and seven decades since Skinner), cases like Romer v. Evans (1996) and Lawrence v. Texas (2003) have fundamentally changed the way a 2013 court must examine gays and lesbians in the law. Also, a growing number of states with marriage equality have only heightened the forcible differentiation that is placed upon certain kinds of American marriages simply because of the sexual orientations/gender of the participants. Not to mention, federal laws that include and/or protect LGBT people have highlighted both the benefit and need to applying the same kind of equal protection reasoning that informed these past cases. To ignore that Loving v. Virginia speaks to our modern marriage cases is not only shortsighted—it's donwright ludicrous.

But of course that's just my response to the NOM Chair. I'll give the final word to someone with more expertise:

Mildred Loving