Loving v. Virginia and the California Proposition 8 Trial

Today, the California Proposition 8 case is before the federal court. The judge will hear hear arguments in a motion to vacate Judge Vaughn Walker’s August 2010 decision that California’s Proposition 8 is unconstitutional.  For up-to-date trial information, go to Prop 8 Trial Tracker.

Some 44 years ago, the United States Supreme Court issued its ruling in the landmark case, Loving v. Virginia.  The Justices 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 Loving case has important parallels to the same-sex marriage argument. American Foundation for Equal Rights released the following video yesterday in commemoration of the 44th anniversary of the Loving decision and the upcoming arguments in the Proposition 8 (Perry) case:


Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski


2 comments on “Loving v. Virginia and the California Proposition 8 Trial

  1. Danny says:

    An important principal of the U.S. is balancing legal rights with moral priorities. You can not promote a moral society buy passing laws that most citizens disagree with. The homosexual argument for marriage is NOT the same at the race argument. Homosexuality can affect the very health of the country…as it relates to the importance of focusing on natural reproduction. Two men and two women can not have a natural baby-birth. Race intermarriage has not direct affect on creating natural and healthy citizens (children).

    Homsexual marriage adds not benefits to the state. It only gives a small group of people the right to enter a relationship that many Americans disapprove of.

    • Irene C. Olszewski, Esq. says:

      While you are certainly entitled to your opinion, I must point out a fatal flaw in your argument. You stated that, “Homosexuality can affect the very health of the country…as it relates to the importance of focusing on natural reproduction. Two men and two women can not have a natural baby-birth.” I facilitate step-parent adoptions all the time. In my personal practice, I generally deal with same-sex couples in which one person is the biological mother and her partner adopts the child as the step-parent. For gay men, a gestational carrier is often used.

      I’m assuming that you use the phrase ‘natural reproduction’ to mean the conception of a child through intercourse. However, Danny, there are thousands of heterosexual couples who cannot conceive a child in that way. Those same heterosexual couples use invitro fertilization (as lesbian couples do) or gestational carriers (as gay couples do).

      There is a reason that the Supreme Court ruled the way it did in the ‘Loving v. Virginia’ case — it is NOT okay for society to deny constitutional rights to others based on personal beliefs that something isn’t right. That case DOES parallel the gay marriage argument for the same reason. Just because “many Americans disapprove of” gay marriage (as you claim) doesn’t mean that lesbians and gays should not enjoy the same right to life, liberty and the pursuit of happiness as straight couples. You say that ‘you can’t promote a moral society by passing laws that most citizens disagree with”? Again, simply disagreeing with something doesn’t make it right from a constitutional or legal perspective. There are plenty of cases throughout our history that have been brought before the high court for that same reason. We have courts to rectify the wrongs done by “most citizens” who disagree with something that isn’t for them to decide.

      Finally, Danny, I grow quite tired of the argument that one group’s so-called ‘moral priorities’ should ever be allowed to unilaterally trump the moral priorities of others. Hypocrisy is a deadly thing — and in this particular debate, it most certainly enters into the equation. It’s sad that so many people discriminate in the name of religion. In the land of the free, that’s not how things are done.

      Thanks for reading.

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