In other news that seems to have escaped the notice of the Montana press, Senator Steve Daines and Congressman Ryan Zinke recently signed on to an amicus brief to the Supreme Court, affirming their position that the Court should enshrine bigotry in the law and not permit same-sex marriage across the country.
While couched in language that suggests the issue of same-sex marriage is somehow different from the issue of inter-racial marriage until the 1960s, the arguments are the same. In between appeals to let the states decide fundamental questions of human decency and civil rights, the document argues that the Court just needs to slow down and let democracy do its work—at the state level. Kneeling before the god of federalism, the authors of the brief argue that “federalism and the separation of powers exist to preserve liberty,” despite explicitly using their conception of federalism to deny the freedom to marry to a class of people they don’t approve it.
In a telling section defending the rights of states not to recognize marriages from other jurisdictions, the brief hints at the old conservative argument that permitting same-sex marriage will require permitting other relationships, euphemistically referring to “other persons in personal relationships—including those whose cultures or religions may favor committed relationships long disfavored in American law.” Not sure this dog whistle reference will be sufficient for conservative culture warriors, the document spells out what it fears: cousins marrying cousins, polygamy, and marriages of those under the legal age of consent. Rick Santorum would have been proud of that reasoning.
It even approvingly cites decisions from the 1880s-1950s that allowed states to restrict marriage after a divorce (pg.29-30).
Barton Hinkle, writing for Reason, argues that the arguments made against same-sex marriage today echo those from the 1960s:
During debate over Virginia’s amendment, Republican Del. Bob Marshall decried “attempts to radically alter an institution that must antedate history. And this has come about by social engineering judges in Massachusetts, Vermont, and elsewhere.”
Arguments like that ring with historical echoes. “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” decreed Leon Bazile, the judge who convicted Mildred and Richard Loving. “And but for the interference with his arrangement there would be no cause for such marriages.” God made Adam and Eve, not Adam and Steve.
And that’s exactly what the amicus brief Zinke and Daines argues, too: because the public opposes same-sex marriage in many states, because marriage is an enduring institution defined by one religion, and because states’ rights trump civil rights, the Court should not follow the Loving precedent and permit anyone who wants to marry the person he/she loves to do so.
Aside from the spurious reasoning in the brief, what’s truly telling is just how few members of the Congress signed on: only six Senators and 51 members of the House wanted to support this argument, among them some of the most odious bigots in the body. I don’t know how some Montana editorial boards convinced themselves to write that Senator Daines or Congressman Zinke were moderates back in October and November, but this brief, and this company—shred the idea that either man is even close to moderate.
In the end, it’s always worth reading what Mildred Loving had to say in 2007, on the 40th anniversary of Loving v. Virginia:
“Not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others, especially if it denies people’s civil rights.”
Same sex marriage isn’t the end of the fight, and I know there are thoughtful members of the LGBT community who argue that the focus on marriage obscures the real fight for equality and authentic identity in this country, but it’s an important start. That two of Montana’s members of Congress are still relying on the language of 1960s segregationists to deny equal marriage rights is an important sign that they are opponents of equality and opponents of a good number of people they should represent.