my 1st "A" paper

This is one of two paper that I received back on the same day. This one is a persuasive paper about what the legal status of same-sex marriage SHOULD be. The other paper was about shopping malls as gendered spaces of consumption. That one was 10 pages, so I will spare you that. though, i must say it is a good one. Usually I am out the gate with a good stride and lose some momentum by the end. In this paper I really think I finish as well as I start. Anyway: without further ado:





Same-Sex Marriage:
This Generations Miscegenation?


Marriage has been litigated in the courts as long as America has been independently ruled. Through the tides of legal action the idea of marriage has evolved, leaving behind the notions of its inception to become what it is known to be today. Prior to 1967, it was considered against God’s law for “white” persons to commingle with people of other racial identities. By means of time and litigation this sentiment has changed. At present there is a new union under attack—-same-sex marriage. The current arguments coming out in opposition to gay marriage are quite similar to the past outcry against miscegenation. However, there are some differences cropping up in the courts interpretation. Thus far it is these nuanced differences that are leading to entirely different legal outcomes.
Up until 1967 Virginia, as well as other states, had on the books anti-miscegenation laws that regulated who could marry whom. The central focus of this variety of law was to completely ban the union of a “white person” with a “non-white” person. It is important to note here that the other races were not prohibited from marrying each other, but rather as “non-whites” they were forbidden from commingling with “whites.” It was the opinion of Judge Leon Bazile that such mixings directly contradicted God’s intent. If the races were meant to cohabitate, they would not have been relegated to separate places on the globe. The fact that people have moved about the continents in no way supposes that God intended the races to amalgamate [Loving v Virginia 388 U.S. 1 (1967)].
As illustrated by Virginia interracial marriage had been historically disallowed. However, in 1948, the court system witnessed a slight shift in opinion. The case of Perez v. Sharp 32 Cal. 2d 711 (1948) was decided on the state level. In its ruling, marriage was termed as the “fundamental right of free men.” Ultimately, this case had no bearing on the legal proceedings of the nation. However, this case made California the first state to recognize anti-miscegenation as a violation of the Equal Protection Clause of the Fourteenth Amendment. This established precedence and was not too far ahead of the ground breaking decision in the case Loving v Virginia 388 U.S. 1 (1967). The ruling of this case reiterated that marriage is a fundamental right. It also, asserted that even though Virginia’s anti-miscegenation laws treated “whites” and “non-whites” equally, the action was still classified as race-based discrimination. This classification elevated the status of anti-miscegenation laws to strict scrutiny by the Supreme Court. This shifted the burden to the state of Virginia to prove that it had a compelling purpose for its anti-miscegenation laws and that the means were narrowly tailored to achieve said purpose. The state was unable to prove so under the strict scrutiny test of the court. The decision of the court could have theoretically been in favor of miscegenation if not for the recognition of race-based discrimination, an entirely technical matter.
Currently, proponents of same-sex marriage are trying to parallel the arguments made in Loving v Virginia. Their argument is that regardless of the fact that both sexes are equally burdened, the prohibition of same-sex marriage is sex-based discrimination. The successful execution of this argument would immensely help the gay and lesbian cause. This particular accomplishment would elevate its status of same-sex legislation, such as Washington State’s DOMA, to a semi-suspect classification. In this event, the burden would fall upon the state to show an important state purpose in prohibiting gay marriage and that the stated prohibition is closely related to achieving this important state purpose. In the event that that happened, it can be assumed that proponents of same-sex marriage would be more effective in achieving their goal of having their long-term bonds and commitments legally recognized.
However, the courts have been able to glean a differentiation between the arguments of Loving and those of same-sex marriage. The difference lies in the age-old “accident of birth” argument. In Andersen v. King County it was held that discrimination was not based on sex since it applied equally to both sexes. This is in opposition to the decision in Loving that, regardless of whether “whites” and “non-whites” are treated the same, anti-miscegenation laws are based on race. Though reversed by the Ninth Circuit court of appeals, the state used the decision of High Tech Gays v. Defense Industrial Security Clearance Office 909 F. 2d 375 (1990) to substantiate that homosexuality is behavioral and therefore not an immutable trait. Therefore, the Loving rationale did not apply. As well, homosexuals were not considered powerless under the law, which is a required title to be a member of the semi-suspect classification. Additionally, the court in this case held that same-sex marriage is not a fundamental right included in the right to marry of all free men. The combination of these elements excluded gays and lesbians as part of a semi-suspect class deserving heightened scrutiny. Consequently, rational basis review was applied. Under this classification Washington State only needed to show a legitimate purpose with the means being rationally related to the stated purpose. The application of rational basis review made it easy for the state to restrict same-sex marriage since empirical evidence was not required to sustain rationality. In Andersen v. King County Justice Madsen stated:

"State Defense of Marriage Act (DOMA) was rationally related to state's interests in procreation and children's well-being, and thus DOMA's prohibition against same-sex marriage did not violate state constitution's privileges and immunities clause; procreation was legitimate government interest justifying limitation of marriage to opposite sex couples, as was encouragement of childrearing in traditional nuclear families where children tended to thrive… even if animus in part motivates legislative decisionmaking, unconstitutionality does not follow if the law is otherwise rationally related to legitimate state interests.”

This negation of the importance of animus is interesting especially when compared to the case of Romer v Evans No. 94-1039 (1996). In the case of Romer, Colorado was unable to prove that there was any rational correlation to a legitimate state purpose when it passed an amendment that restricted homosexuals’ access to legal protection. Therefore, animus alone was not substantial enough ground to single out an entire group of people. In Andersen, the state had a legitimate purpose. Subsequently, animus alone was not substantial enough ground to prevent exclusion of certain group members from a revered state institution. In both cases, animus is used to restrict the rights of gays and lesbians. On one hand it is used as a deciding factor, on the other it is merely incidental.
While marriage has evolved and has a new face in comparison to its historical appearance, there are still ideals that are tightly held by society and endorsed by the courts. 1967 brought anti-miscegenation under the strict scrutiny of the court and definitively resolved that marriage is a fundamental right of all. Gay marriage, the new union under attack, has struggled to secure the heightened scrutiny necessary to reap the benefits of this fundamental right. The current arguments are strikingly similar to the past uproar against mixed-race marriage. However, it is the difference of applied scrutiny by the courts that has kept advancement in the area of same-sex marriage at bay.