On Amendment One and Obama's ABC Interview

On Tuesday, North Carolina voters approved Amendment One, which strips unmarried couples of all legal recognition of their relationships under State law. Billed as a simple gay marriage ban, the amendment actually goes much further, as Patrick at Popehat describes, and voids all other legal protections unmarried couples, gay or straight, might seek for themselves, including wills, adoptions, medical powers of attorney, and possibly even joint tenancy in realty. [Part 2 and Part 3 in the Popehat series on Amendment One] It also prohibits North Carolina from recognizing these non-marriage relationships when they're formed and governed by the laws of other states. If your unmarried partner is on your automobile insurance policy, your unmarried partner probably should not drive in North Carolina.

In response—or at least so it seemed to me, Obama got on ABC and did this:


Vapid, election year puffery. What serious opponent of anti-miscegenation laws would go around saying he's in favor of mixed-race marriages, but that the states should be allowed to ban them if they want? Shameful and extremely pragmatic. Nothing more than a campaign speech. This is his "personal" "opinion" (insofar as he can be said to hold opinions of his own for any length of time) and will not translate to national policy.

In 1947, the year before the California Supreme Court struck down that State's anti-miscegenation law as unconstitutional under the 14th Amendment, 30 states (of 48) had such laws in effect: California, Oregon, Nevada, Idaho, Utah, Arizona, Colorado, Wyoming, Montana, North Dakota, South Dakota, Nebraska, Indiana, and Maryland repealed theirs between 1948 and 1967. Texas, Oklahoma, Missouri, Arkansas, Louisiana, Alabama, Mississippi, Georgia, Florida, Tennessee, Kentucky, North Carolina, South Carolina, West Virginia, and Delaware had theirs struck down with Virginia's when the US Supreme Court found the latter violated the 14th Amendment (Loving v. Virginia).

As of Tuesday, 39 States now ban same-sex marriage (as such) by one means or another, although the law is complicated in a handful of them. No Only one [see update below] State ever banned mixed-race marriages by constitutional amendment, while the majority of States with same-sex marriage bans have chosen this route. Except in North Carolina, anti-miscegenation laws weren't put in place by popular initiatives. And no State ever reenacted a ban on mixed-race marriages after a repeal, c.f. California's Prop 8.

So when others talk about how hopeful things look on the gay marriage front, I can't help wonder if they're looking at the same country I'm seeing. "A majority support gay marriage," they say. I see no evidence of such a majority, and cannot help but question the polling methods. Frankly, the "majority support" angle is offensive to me, because it is dishonest and because it concedes the whole moral argument over democratizing these things to the opposition.

A Supreme Court ruling à la Loving at this point would be disastrous, both for how it would happen and for the reaction. Such a ruling would create both good and bad law, and the good would be wiped out by the subsequent amendment to the US Constitution. A Gay Loving would add so much fuel to the amendment-pushers, and only 38 states need to ratify. Too much of the country opposes the idea of gay marriage for a Gay Loving to work.

In sum, I am not optimistic at all about this fight on the national level. Don't look for it to be over for a decade at least.

PS: I wrote a portion of this post in response to a thread on the OList:OHomos mailing list.

UPDATE: Trey points out that North Carolina once amended its constitution to include a ban on mixed-race marriages. Indeed, at the 1875 constitutional convention, the people in convention ratified, among 29 other alterations to the State constitution, a provision providing that

All marriages between a white person and a negro, or between a white person and a person of negro descent to the third generation inclusive, are hereby forever prohibited.

This provision remained in the North Carolina constitution until the people replaced the entire constitution with a new one in 1971, despite Loving in 1967.

Tom G Varik