Bias In Black And White

California’s Religion-Based Ban On Same-Sex Marriage Parallels Historic Battle Over Interracial Unions, Say Legal Experts

Forty years ago, Roger Mills had to fight in seven courts to win the right to marry the woman he loved.

Mills, who is white, wanted to marry a black woman. In most parts of the country, this would not have been a big deal in 1970. But in Mississippi, a state still resisting integration and clinging to a Jim Crow past that condemned “race mixing” as un-Christian, it absolutely was.

Still, Mills didn’t expect to have any problems when he walked into the local courthouse to apply for a license. Three years earlier, the U.S. Supreme Court had unanimously struck down a Virginia law banning interracial marriage. Mississippi’s statute was essentially the same as Virginia’s and was surely a dead letter.

It wasn’t that simple. A local racist group got wind of the couple’s plans and successfully petitioned a state judge to issue an order forbidding the county clerk from granting the license.

Mills, who was 24 at the time, began to get worried.

“We had sent out all of these invitations and were not anticipating this,” Mills said. “This was going to mess up everything. We didn’t know what we were going to do.”

The couple turned to the courts – first state, then federal. After a whirlwind of activity spanning two weeks, a federal appeals court lifted the order on the clerk, and Mills’ union with Berta Linson became Mississippi’s first legally sanctioned interracial marriage.

Four decades have passed, and for Mills, history is repeating itself in an unexpected way. His daughter, Demetria, who lives in Georgia, is also fighting resistance to her plans for a lawful union – because she wants to marry another woman.

Demetria’s hopes for a legal marriage have angered a lot of religious conservatives. To her father, it’s a familiar situation.

As Mills fought for the right to marry, he stirred up a hornet’s nest. During one court proceeding, the Mississippi attorney general badgered Mills before a packed gallery of news reporters because he lived in the same apartment building (though not in the same unit) as his fiancée. Mills was accused of violating the state’s anti-miscegenation law.

“It was terrible,” Mills recalled. “I was put on the stand. It was humiliating in front of all of those reporters to have the attorney general examining me on this stuff.”

Hate mail poured in.

“You think what you have done is real smart,” wrote one anonymous critic. “I’m sure you did it to prove a point to the Christian White people of Mississippi, but in the end you will be the one to sorrow…. This is against the law of God and you will have to answer to Him for disobeying this very stern commandment in His word.” 

Mills, an Americans United member – and Sunday school teacher – who now lives in Georgia, told Church & State that fundamentalist religion was a big factor in the issue.

“We got lectures on Leviticus and the Old Testament, about how it was impermissible to have your seeds be mixed,” he recalls. “We got the curse of Cain and how blacks were marked in the Old Testament and what I was doing was a shame to my race. We got all of that.”

Forty years later, daughter Demetria can relate. Her parents divorced after 18 years of marriage, but she sees personal parallels to the fundamentalist opposition that occurred when they were first wed. The Georgia resident has heard any number of pastors cite their interpretation of the Bible when blasting same-sex unions.

“I thought all of these things would be righted eventually, yet I encounter the same opposition, and it’s all based on religious beliefs that are linked to the power of government,” she said.

Ironically, developments in another state may determine the fate of Demetria’s union with her partner. A battle over same-sex marriage in California is working its way up the federal court system, and some legal observers believe it may even reach the U.S. Supreme Court. If the justices eventually strike down Proposition 8, California’s ban on same-sex marriage, it could clear the way for same-sex couples nationwide to legally marry.

The Golden State legal tussle has many parallels to the struggle to end bans on interracial marriage. Back then, some ministers and government officials fulminated against “race mixing” and argued that God did not favor such unions.

In Virginia, a trial judge named Leon M. Bazile wrote that the state had no obligation to recognize an interracial couple’s marriage that had been performed in Washington, D.C., penning a passage that has since become infamous: “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 marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Bazile’s overt racism and bizarre theology grate on today’s ears. Yet religiously grounded arguments against same-sex marriage are still heard. In fact, at times the debate sounds less like a legal and public policy discussion than it does a medieval dispute over the fine points of theology.

Americans United says that fact makes California’s ban on same-sex marriage suspect. The ban, AU argues in a recent friend-of-the-court brief, is based on intolerance, pseudo-science and religious dogma, not legitimate public policy concerns.

The brief, filed Oct. 25 with the 9th U.S. Circuit Court of Appeals, asserts that opposition to marriage equality for gay couples reflects the same baseless and inappropriate considerations that once were used to deny marriage rights to slaves and interracial couples.

AU’s interest in the issue escalated sharply in 2008, when Proposition 8 passed narrowly and took away the right of same-sex couples to marry. The debate leading up to the vote was often wrapped in religious rhetoric. In fact, the drive to enact the measure was funded and staffed primarily by fundamentalist Protestant churches, the Roman Catholic hierarchy and the Church of Jesus Christ of Latter-day Saints (the Mormons).

After Proposition 8 passed, media reports surfaced that the Mormons had poured some $22 million into the campaign – even though church members account for less than 2 percent of California residents.

Many Californians were unsettled to learn that a church based in Utah had spent so much money to make California law conform to its dogma. When a federal court challenge was mounted, church-state concerns took center stage.

In August, U.S. District Judge Vaughn Walker ruled that Proposition 8 violated the U.S. Constitution. The state constitutional amendment, Walker held, imposed a private moral viewpoint and did not advance a legitimate state interest.

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” Walker wrote in Perry v. Schwarzenegger. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”

The case was appealed and is now pending before the 9th Circuit Court.

Groups that defend church-state separation and civil liberties are speaking out. They are making the point that U.S. law cannot be based on one interpretation of the Bible.

“American law,” observed Barry W. Lynn, Americans United executive director, “should be based on equality and fairness, not the doctrines of aggressive religious groups. Proposition 8 is grounded in intolerance and sectarian dogma, and the appeals court should reject it.”

The AU brief, filed jointly with the Howard University School of Law Civil Rights Clinic, takes a historical perspective, pointing out that in the past, government authorities used marriage and access to it as a form of social control. In the pre-Civil War South, for example, laws banning marriage between slaves were common.

The brief notes that opponents of marriage rights for slaves and interracial couples argued that such unions were a threat to the social order and the institutions of marriage and family. They also claimed that such marriages violated their interpretation of the Bible.

“Even though reliance on religious doctrine as the basis for public policy is as improper today as it was in the days of anti-miscegenation laws, today opponents of marriage between two persons of the same sex use (their) Biblical interpretations to suggest that homosexuality is unnatural because it is against God’s will,” observes the brief. “Indeed, like their anti-miscegenationist counterparts, opponents of marriage for same-sex couples almost always attempt to clothe their arguments in literal and selective interpretations of the Bible.”

It goes on to say, “Today, while there is no longer any serious claim that marriage rights should be denied on the basis of race, opponents of marriage equality have attacked same-sex couples, using precisely the same flawed arguments that once were used to justify racial slavery and apartheid. We are now long past the time when anyone would seriously claim that race-based marriage equality threatens the moral fabric of our civilization, is contrary to nature, or is harmful to children.

“Therefore,” the brief concludes, “the onus should be on opponents of marriage equality to demonstrate how arguments that time and experience have so thoroughly rejected in the context of race should now be dug up, dusted off, and given any consideration, much less credibility, in the context of marriage for same-sex couples.”

In addition to AU and the Howard Civil Rights Clinic, six professors at Howard University School of Law and four law-student organizations also expressed support for the brief.

The brief was written by Aderson B. François, civil rights clinic supervising attorney at Howard University School of Law, in cooperation with Americans United Legal Director Ayesha N. Khan and attorneys with the firms of Manatt, Phelps & Phillips LLP and Keker & Van Nest LLP.

A separate brief filed by California Faith for Equality, the California Council of Churches and a number of other religious groups specifically attacks the idea that religious views should dominate public policy.

“Proposition 8’s advocates…often have insisted that their ballot measure was warranted because marriage is of divine origin – instituted by God,” reads the brief. “But California’s civil law should be blind to sectarian doctrines on divine law. Even nonbelievers have a right to marry.”

Elsewhere the brief observes, “Recognizing same-sex couples’ legal right to marry threatens the religious liberty of those who reject such marriages no more than recognizing the legal right of mixed-race couples… impaired the religious liberty of those who might reject interracial unions as contrary to God’s law.”

Samuel M. Chu, executive director of California Faith for Equality, said the organization’s brief is important because it debunks claims that all religious groups oppose civil marriages for same-sex couples.

“I believe it is important to let the court know that people of faith have different views on same-sex marriage, and to remind the judges that we live in a pluralistic society where you don’t impose sectarian religious doctrines by law to limit the freedom of people who don’t share those beliefs,” Chu told Church & State

His organization’s brief, Chu said, shows that “religious institutions are free to define religious rites of marriage as they choose, but that none is entitled to limit secular civil marriages according to religious doctrines, let alone to invalidate the marriages blessed by other faith traditions.”

It could take several years for the Proposition 8 case to wind its way through the courts. In the meantime, other factors are at work that will likely affect the issue of same-sex marriage.

Most scholars agree that a gradual social evolution is under way concerning the issue of gay rights. Solid majorities now favor gays serving openly in the military, support hospital visitation rights for same-sex partners and back other forms of gay rights.

A few recent polls have even shown a thin majority backing the legalization of same-sex marriage – the first time that position has topped 50 percent. In addition, polls show that younger Americans are much more supportive of the idea.

But the Religious Right does not intend to go down without a fight – and the issue is still a potent one for them in many parts of the country. Last month, three Iowa Supreme Court justices who had voted in favor of same-sex marriage lost their seats in a retention election after being targeted by Religious Right organizations.

For Demetria Mills, who has been with her partner for 18 years, the inability to legally sanction that union is frustrating. She points out that the same Religious Right activists who fulminate against same-sex marriage often turn a blind eye to trends in modern society that actually do endanger families.

“I’m not sure how my being married to my partner could possibly affect the heterosexual couple next door,” she said. “It’s irrational.”