Views differ on parallel between same-sex, interracial marriage

Tuesday, July 13, 2004

JEFFERSON CITY, Mo. -- During the debate over same-sex marriage in Missouri and elsewhere, comparisons have been drawn between efforts to outlaw such unions and statutes barring interracial marriage that were commonplace throughout the country just a generation ago.

Supporters of a proposed amendment to the Missouri Constitution that would define marriage solely as a union between a man and a woman, however, dismiss suggestions of similarity.

House Majority Floor Leader Jason Crowell, R-Cape Girardeau, says the abandoned prohibitions on marriages between men and women of different skin color are far different from setting parameters for the institution based on sexual orientation.

"They are not in any way, shape or form analogous," Crowell said.

Missouri voters on Aug. 3 will decide the same-sex marriage constitutional question, which appears on the ballot as Amendment 2. Crowell was a primary House sponsor of the measure putting it on the ballot.

Struck down in 1967

The U.S. Supreme Court unanimously struck down state anti-miscegenation laws in the 1967 case Loving v. Virginia as violating the equal protection and due process clauses of the 14th Amendment. The court called marriage "one of the basic civil rights of man" that cannot be abridged on the basis of race.

Missouri didn't repeal its ban on interracial marriage until 1969. The law prohibited legal recognition of marriages between "white persons and negroes or white persons and Mongolians."

A separate statute that made miscegenation a crime was repealed around the same period. That provision, located in the "Offenses Against Morals" chapter of the criminal code, made marriages between whites and "any negro or person having one-eighth part or more of negro blood" punishable by up to two years in prison.

Carl Train, a gay Cape Girar-deau resident opposed to Amendment 2, says the discrimination homosexuals have endured for generations is an unfortunate fact of life, but he finds it disturbing that discriminatory language might be added to the Missouri Constitution's Bill of Rights.

"There is no purpose in the amendment because I don't see how, if by some miracle gays and lesbians are allowed to marry, that affects heterosexual marriage at all," Train said. "The argument that it is somehow damaging to heterosexual marriage I cannot fathom."

Missouri law currently bars same-sex marriages, and that prohibition will remain in place regardless of the outcome of the August vote.

'A hands-off doctrine'

If Amendment 2 is ratified, it would preclude the Missouri Supreme Court from ever determining that same-sex couples are entitled to equal marriage rights under the state constitution. Missouri's policy then would have to become an issue for the federal courts in order to be struck down.

Dr. Brian Smentkowski, who teaches constitutional law at Southeast Missouri State University, says the federal high court has been leery of weighing in on the issue of homosexual rights.

"What you find is the court taking a hands-off doctrine," Smentkowski said.

However, the court hasn't been entirely silent on the subject. Last year in Lawrence v. Texas, it ruled 6-3 to invalidate laws that made consensual homosexual intercourse illegal. The majority said the Texas law, and others like it, was an unconstitutional intrusion into the private affairs of individuals.

"It is sort of a linchpin statement," Smentkowski said. "For the first time, the court is saying that the same rights available to category A are available to category B."

The ruling is seen as all the more significant because it overturned the court's own 1985 opinion in Bowers v. Hardwick. In that 5-4 decision, the court upheld Georgia's sodomy law, saying the right to privacy didn't extend to homosexual conduct.

If opponents of same-sex marriage have their way, the high court may never get a chance to address the issue. A proposed amendment to the U.S. Constitution pending in the Senate seeks to define marriage as being between a man and a woman at the national level. However, its chances of clearing Congress are in doubt. Should Congress pass the measure, it would have to be ratified by the legislatures in 38 states to become part of the Constitution.

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