In the legal challenge to Nevada’s ban on same-sex marriage, now pending in the 9th Circuit Court of Appeals, the anti-equality group Nevada Coalition for the Protection of Marriage just filed a brief with a breathtakingly ridiculous argument for why same-sex marriage is nothing like interracial marriage.
The genderless marriage proponents’ story also relies on several misleading strategies. One of those strategies is to argue that just as white supremacists engrafted anti-miscegenation rules onto the marriage institution and were rightly repudiated by the Supreme Court in Loving, so homophobes, with laws like Nevada’s 2002 marriage amendment, have engrafted the man-woman meaning onto marriage and should likewise be repudiated by this Court. At first blush, this strategy is only silly because, of course, the union of a man and a woman has been a core, constitutive meaning of the marriage institution found in virtually every society since pre-history. Nevada’s marriage amendment did not add that institutionalized meaning but rather sought to protect and preserve it and the valuable social benefits flowing from it.
On closer examination, this strategy reveals something deeply troubling. White supremacists engrafted the anti-miscegenation rules onto the marriage institution — and thereby altered marriage from how it had existed at common law and throughout the millennia — to bend that institution into the new and foreign role of inculcating white supremacist doctrines into the consciousness of the people generally. Because of the profound teaching, forming, and transforming power that fundamental social institutions like marriage have over all of us, this evil strategy undoubtedly worked effectively for decades.
Question: Where does one see today a similar massive political effort to profoundly change the marriage institution in order to bend it into a new and foreign role, one in important ways at odds with its ancient and essential roles? Answer: The genderless marriage movement. The big difference, of course, is the immorality of the effort to advance the white supremacist dogma compared to the morality of the effort to advance the social well-being and individual worth of gay men and lesbians. Whether that moral objective is sufficiently weighty to justify so bending and altering the marriage institution is for the free, open, democratic process to decide. Certainly, the comparison of laws that protect the man-woman meaning of marriage to anti-miscegenation laws is a false analogy that provides no basis for any court to mandate the redefinition of marriage.
And here’s the important thing: Every single legal argument used by the bigots to defend bans on same-sex marriage was used by bigots to defend bans on interracial marriage. The same appeals to religion were made, the same appeals to tradition, the same specious argument that there’s no inequality because both genders (or all races) were equally prohibited from marrying someone of the same gender (or different race). The same “end of morality” arguments. The same religious freedom arguments. The dispute is exactly the same, you need only replace gender with race.