D.J. Tice writes that it is inÂapÂproÂpriÂate for the SuÂpreme Court to deÂcide the isÂsue of same-sex marÂriage using the 14th Amendment's "eÂqual proÂtecÂtion" clause ("Two key cases, two ocÂcaÂsions for reÂstraint," June 14). He says chanÂges in marÂriage laws should be made only by state legisÂlaÂtures. HisÂtoÂry tells us that is not alÂways the corÂrect soÂluÂtion.
The U.S. SuÂpreme Court case of LovÂing vs. Virginia, which found laws against interÂraÂcial marÂriage unÂconÂstiÂtuÂtionÂal, is inÂstrucÂtive and logÂiÂcalÂly inÂvaliÂdates Tice's oÂpinÂion.
As you will reÂcall, the 14th Amendment was passed in 1868. In 1967, the SuÂpreme Court, for the good of the counÂtry, was forced to step in and find anti-misÂceÂgeÂnaÂtion laws unÂconÂstiÂtuÂtionÂal beÂcause cerÂtain states reÂfused to change their laws barÂring interÂraÂcial marÂriages through legisÂlaÂtive means or by refÂerÂenÂdum.
UnÂtil 1948, only 20 states had eithÂer nevÂer enÂactÂed or had reÂpealed anti-misÂceÂgeÂnaÂtion laws.
BeÂtween 1948 and 1967, an adÂdiÂtionÂal 14 states reÂpealed anti-misÂceÂgeÂnaÂtion laws. But 16 states conÂtinued to reÂfuse to oÂverÂturn their anti-misÂceÂgeÂnaÂtion laws. AfÂter deÂcades of leÂgalÂized and murÂderÂous disÂcrimÂiÂnaÂtion, the SuÂpreme Court was forced to step in and deÂcide the isÂsue once and for all.
So unÂtil 1948, 30 states, more than half the counÂtry, had anti-misÂceÂgeÂnaÂtion laws that crimÂiÂnalÂized interÂraÂcial marÂriages. Take one step across a state borÂder and you were transÂformed from a law-aÂbidÂing citÂiÂzen into a crimÂiÂnal. EvÂiÂdentÂly, legisÂlaÂtures and the maÂjorÂiÂty of their conÂstitÂuÂents were obÂlivÂiÂous to or apÂproved of misÂceÂgeÂnaÂtion laws.
The isÂsue in LovÂing at its core is no difÂferÂent than the isÂsue of same-sex marÂriage. A patchÂwork of difÂferÂent state laws does no one any good. At the time of the aÂdopÂtion of the 14th Amendment, the preÂvailÂing beÂlief sureÂly was that the "eÂqual proÂtecÂtion" clause did not enÂcomÂpass interÂraÂcial marÂriages. The hisÂtoriÂcal facts underÂmine Tice's oÂpinÂion. Any atÂtempt to disÂtinÂguish LovÂing from same-sex marÂriage based, as such atÂtempts someÂtimes are, on speÂcious arÂguÂments about imÂmuÂtaÂble charÂacÂterÂistÂics doesn't get you anyÂwhere.
I also note that Tice didn't menÂtion anyÂthing about the court beÂing able to deÂcide the case on sex disÂcrimÂiÂnaÂtion grounds, which is perÂfectÂly withÂin the amÂbit of the 14th Amendment.
FiÂnalÂly, this counÂtry's legisÂlaÂtures, beÂginÂning in 1923, tried to pass an eÂqual rights aÂmendÂment for women (ERA). Today there is still no conÂstiÂtuÂtionÂal aÂmendÂment codÂiÂfyÂing eÂqual rights for women (ERA). The legisÂlaÂtures failed to do their duty in 1923, as now.
The SuÂpreme Court may not alÂways be right, but it's not wrong to step in where, as with same-sex marÂriage, it is neÂcesÂsary and right.
David GoldÂstein is a Minneapolis atÂtorÂney.