Even Same-Sex Marriage Is a Basic Civil Right

In contrast to some prominent Christian Evangelists, Pastor Rick Warren, who has been invited to deliver the invocation at President-elect Barack Obama's inauguration, does not wish gays and lesbians ill. He takes justifiable pride in his church's record of caring for AIDS victims. At the same time, he actively opposes equal rights and equal treatment for gays and lesbians, which is not at all the same as not supporting such rights. He was a strong and vocal force behind the adoption of California's Proposition 8 which deprived same-sex couples of the right to marry. Pastor Warren maintains that "This is not a political issue -- it is a moral issue that God has spoken clearly about."

I do not have a problem with Orthodox rabbis, the Vatican, the Mormon Church, or Pastor Warren's Saddleback Church for refusing to perform or recognize same-sex marriages. I do, however, find offensive and objectionable their efforts to impose their religious and moral views on the rest of society.

Many right-wing religious fundamentalists of all faiths as well as conservative Republican politicians and commentators decry courts that have sought to legalize same-sex marriage as a matter of law. Kenneth Starr, the former Whitewater prosecutor who has been retained to invalidate the more than 18,000 same-sex marriages performed in California before the passage of Proposition 8, argues that judges "as servants of the people" should "bow to the will of those whom they serve."

But aren't gays and lesbians among those whom such judges and, for that matter, our legislators serve? And while we're on the subject, what about interracial couples in pre-1967 Virginia, or Jews married to Christians in Nazi Germany? Republicans who tolerate their party's platform calling for a constitutional amendment banning same-sex marriages should be reminded of a similar constitutional amendment to prohibit interracial marriages proposed by Rep. Seaborn Roddenberry, Democrat of Georgia, in 1912 on the ground that "intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant." We must also bear in mind that the invidious 1935 Nuremberg Laws criminalized both marriages and extramarital intercourse "between Jews and subjects of the state of German or related blood."

We forget that as recently as 1958, an African-American woman and a white man were prosecuted in Virginia for the crime of getting married to each other. "Almighty God created the races white, black, yellow, malay and red," wrote County Circuit Court Judge Leon M. Bazile of Caroline County, Virginia, in his January 6, 1959 ruling sentencing Mildred and Richard Loving to one year in jail (suspended on condition that they leave the State for 25 years). "And," he continued, "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." Like Pastor Warren almost 50 years later, Judge Bazile had no doubt that this was a moral issue that God had spoken out on.

It was not until June 12, 1967, that the U.S. Supreme Court unanimously reversed the Lovings' criminal conviction and declared Virginia's prohibition of interracial marriage to be unconstitutional. Chief Justice Earl Warren wrote in Loving v. Virginia that:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies [Virginia's prohibition of interracial marriage]. . . . Marriage is one of the 'basic civil 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 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.

Does anyone doubt that a majority of the good people of Virginia might well have voted to retain the ban on interracial marriage in 1967? Or that a majority of Germans would have endorsed the Nuremberg racial laws in 1935? Should the Supreme Court in Loving have deferred to prejudices that, in retrospect, might make even Kenneth Starr cringe?

We must never lose sight of the fact that divisive rhetoric and demagoguery have consequences. The delegitimization or demonization of any group threatens our society as a whole. Any muddying of the separation of church and state encroaches on the religious liberty now enjoyed by all Americans. Unlike most European countries, the United States has never had an established church or religion, and most Americans like it that way just fine.

Generations of immigrants, my parents and I among them, came to these shores "yearning to breathe free," and the Emma Lazarus' poem engraved on the Statue of Liberty does not bestow this privilege exclusively on those of "your tired, your poor, your huddled masses" who happen to be heterosexual.

Menachem Rosensaft, a lawyer in New York City, is the Founding Chairman of the International Network of Children of Jewish Holocaust Survivors

This article was first published in the New York Jewish Week.