According to Wikipedia: In June 12, 1967, the U.S. Supreme Court overturned the convictions of Mildred and Richard Loving in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:
"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. 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."
The Supreme Court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy:
"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."
Despite this Supreme Court ruling, such laws remained on the books, although unenforced, in several states until 2000, when Alabama became the last state to repeal its law against mixed-race marriage.
MY TAKE ON IT
by Bud Evans
I Remain Hopeful…
Even if individual state DOMAs (the federal DOMA is still problematic) are held constitutional based on the so-called "Public Policy" exemptions, they can still be struck down because they violate the Due Process and Equal Protection clauses of the US Constitution.
As marriages are considered contractual agreements and not the result of court proceedings (such as adoption -- which clearly fall within the scope of the Full Faith and Credit Clause), then the best approach to overturning DOMA would be to challenge it on Due Process and Equal Protection grounds.
The decision in Loving -v- Virginia, in which the US Supreme Court overturned interracial marriage bans in various states, was based on the aforementioned protections guaranteed in the US Constitution, the Fourteenth Amendment, and not on the Full Faith and Credit Clause.
I think that approach would be best, and it could lead to striking down all other existing laws that discriminate against people based on their sexual orientation.
By the way, in Lawrence -v- Texas, this could have already been accomplished if the court ruling, which struck down the sodomy laws across the US, was based solely on a strict interpretation of the Fourteenth Amendment and not on some convoluted reading of the ambiguous "Liberty Clause" of same amendment which gave the court wiggle-room on not expanding the rights of homosexuals to be on par with those of heterosexuals in all things -- without exception. Although, there could have been unintended consequences if Justice O'Connor would have prevailed in her argument that it was an Equal Protection case . Apparently, she was still trying to justify her vote in upholding the sodomy laws earlier in Bower -v- Hardwick.
If O'Connor's argument would have won over the court we still could have sodomy laws (as long as it applied equally to both heterosexuals and homosexuals) and, ironically, forced recognition of same-sex marriage in all fifty states. What a legal nightmare that would have been. For example: you could be legally married in Texas as a same-sex couple but you would not be able to consummate the marriage without breaking the state law which could still outlaw sodomy (as long as it applied to both heterosexuals and homosexuals) -- leaving, of course, homosexuals with no physical expression to their intimate relationships at all.
Both fortunately and unfortunately, because the court limited the ruling to just the sodomy statues and then declared that those sodomy laws (as regards to consenting adults) were unconstitutional, and not in just their application to a certain group or groups, then that still left open to constitutional review all other laws that discriminate against homosexuals such as in Housing and Job Discrimination, DADT, DOMA, and a host of others equal protection arguments.
Now, we need a concise and final determination from SCOTUS that asserts that all Americans, regardless of Religion, Gender, Political Affiliation, Nationality and Sexual Orientation, etc., are entitled to the same, unabridged, constitutional guarantees and protections by the same degree and equal application of laws that pertain to all citizens of the United States of America -- without exception.
I believe our day will come. Common human decency has a way of waking up from its sleep of complacency and doing the right thing when you least expect it. In spite of everything, I have faith in what is still good in people -- as strained as it is from time to time.
…So, I remain hopeful.
© Bud Evans