With the momentum growing in favor of same-sex marriage, opponents of marriage equality seem to be getting more and more desperate–and it’s showing. Earlier this week, I mentioned that Kentucky is trying to convince a federal court that it should not have to recognize same-sex marriages in other states because–wait for it–gay couples can’t have babies. Well, a lawyer arguing in favor of Virginia’s same-sex marriage ban before the Fourth Circuit Court of Appeals may have made an even dumber argument than that. In the process, he may have not only ensured that Virginia’s ban will be struck down, but also put nails in the coffins of three other states’ bans as well.
Back in February, federal judge Arenda Wright Allen ruled that Virginia’s constitutional ban on same-sex marriage, approved by referendum in 2006, violated the 14th Amendment to the federal Constitution. Newly elected state attorney general Mark Herring announced a few days later that he would not defend the ban in court, leaving two local court clerks to appeal the ruling. Oral arguments were heard on Tuesday. If the Fourth Circuit decides to uphold Allen’s ruling, it could potentially strike down bans in North Carolina, South Carolina and Virginia as well. Even a ruling limited to Virginia could put the other states’ bans on life support; in North Carolina alone there are already three challenges waiting to be heard, and at least one proponent of North Carolina’s ban thinks it will be difficult for a judge to see these cases as any different from Virginia’s case.
Given the stakes, the argument made by Roger Oakley, who represented the clerk of court for the city of Norfolk–one of the clerks who appealed the February ruling–is incomprehensible. Oakley argued that there is no deeply rooted tradition of allowing same-sex marriage, but only marriage between a man and a woman. Judge Roger Gregory didn’t buy that argument. He pointed out that there was no tradition of interracial marriage before 1967, when the federal Supreme Court effectively struck down all laws banning interracial marriage in Loving v. Virginia. “Nobody would have considered interracial marriages in Virginia in the 1920s and 30s,” Gregory said.
Oakley’s response has to be reproduced in full to be believed.
There is a history, prior to the Jim Crow era laws, the anti-miscegenation laws. The idea of interracial marriage was not prohibited. It still fit within the fundamental right of marriage, the idea of a man-woman marriage. Before Virginia passed those affirmative anti-miscegenation laws, it might not have been the social norm, but people certainly could have married, and indeed did marry, across racial lines. Pocahontas married John Rolfe in the early 1600s and their marriage wasn’t declared unconstitutional.
This exchange started at roughly the 15:25 mark.
When Drexel University law professor David Cohen heard the oral argument, he took to Slate to denounce it as a steaming pile of nonsense. Cohen pointed out that Oakley’s argument is completely illogical, since not even the most virulent homophobe believes states can declare individual marriages unconstitutional. It’s also ahistorical, since Pocahontas and John Rolfe were married in 1614–152 years before the United States broke away from Britain, 175 years before the Constitution was even ratified, and 254 years before the 14th Amendment was ratified. Cohen’s biggest beef, though, is with Oakley’s appeal to tradition. If you believe that argument, Cohen said, the only way Loving is correct is if there is a specific tradition of allowing interracial marriage. On the contrary, the opposite was true. Virginia banned interracial marriage in 1691, and the law remained on the books in one form or another until it was thrown out in 1967–“the very definition of a deeply rooted tradition.” All told, Cohen thinks that this is “hands-down the worst argument ever offered against same-sex marriage.”
When all is said and done, Oakley’s argument will likely go down in legal infamy along with the arguments made during the civil rights era against integrated schools. But is it the worst ever? For me, the jury is still out. After all, the Kentucky argument is very much the definition of lunacy. But even if claiming gays shouldn’t marry because Pocahontas married John Rolfe isn’t dumber than saying gays can’t marry because they can’t have babies, at the very least Oakley’s argument should get a place on the podium of stupidity.
Edited/Published by: SB
Darrell Lucus is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
