The Loving Decision

One of my favorite Supreme Court cases is Loving v. Virginia, and not just because it has a name that would delight any novelist. It's because it reminds me, when I'm downhearted, of the truth of the sentiment at the end of "Angels in America," Tony Kushner's brilliant play: "The world only spins forward."

Here are the facts of the case, and if they leave you breathless with disbelief and rage it only proves Kushner's point, and mine: Mildred Jeter and Richard Loving got married in Washington, D.C. They went home to Virginia, there to be rousted out of their bed one night by police and charged with a felony. The felony was that Mildred was black and Richard was white and they were therefore guilty of miscegenation, which is a $10 word for bigotry. Virginia, like a number of other states, considered cross-racial matrimony a crime at the time.

It turned out that it wasn't just the state that hated the idea of black people marrying white people. God was onboard, too, according to the trial judge, who wrote, "The fact that He separated the races shows that he did not intend for the races to mix." But the Supreme Court, which eventually heard the case, passed over the Almighty for the Constitution, which luckily has an equal-protection clause. "Marriage is one of the basic civil rights of man," the unanimous opinion striking down the couple's conviction said, "fundamental to our very existence and survival."

That was in 1967.

Fast-forward to Election Day 2008, and a flurry of state ballot propositions to outlaw gay marriage, all of which were successful. This is the latest wedge issue of the good-old-days crowd, supplanting abortion and immigration. They really put their backs into it this time around, galvanized by court decisions in three states ruling that it is discriminatory not to extend the right to marry to gay men and lesbians.

The most high-profile of those rulings, and the most high-profile ballot proposal, came in California. A state court gave its imprimatur to same-sex marriage in June; the electorate reversed that decision on Nov. 4 with the passage of Proposition 8, which defines marriage as only between a man and a woman. The opponents of gay marriage will tell you that the people have spoken. It's truer to say that money talks. The Mormons donated millions to the anti effort; the Knights of Columbus did, too. Like the judge who ruled in the Loving case, they said they were doing God's bidding. When I was a small child I always used to picture God on a cloud, with a beard. Now I picture God saying, "Why does all the worst stuff get done in my name?"

Just informationally, this is how things are going to go from here on in: two steps forward, one step back. Courts will continue to rule in some jurisdictions that there is no good reason to forbid same-sex couples from marrying. Legislatures in two states, New York and New Jersey, could pass a measure guaranteeing the right to matrimony to all, and both states have governors who have said they would sign such legislation.