Sometimes the court must take action

D.J. Tice writes that it is in­ap­pro­pri­ate for the Su­preme Court to de­cide the is­sue of same-sex mar­riage using the 14th Amendment's "e­qual pro­tec­tion" clause ("Two key cases, two oc­ca­sions for re­straint," June 14). He says chan­ges in mar­riage laws should be made only by state legis­la­tures. His­to­ry tells us that is not al­ways the cor­rect so­lu­tion.

The U.S. Su­preme Court case of Lov­ing vs. Virginia, which found laws against inter­ra­cial mar­riage un­con­sti­tu­tion­al, is in­struc­tive and log­i­cal­ly in­vali­dates Tice's o­pin­ion.

As you will re­call, the 14th Amendment was passed in 1868. In 1967, the Su­preme Court, for the good of the coun­try, was forced to step in and find anti-mis­ce­ge­na­tion laws un­con­sti­tu­tion­al be­cause cer­tain states re­fused to change their laws bar­ring inter­ra­cial mar­riages through legis­la­tive means or by ref­er­en­dum.

Un­til 1948, only 20 states had eith­er nev­er en­act­ed or had re­pealed anti-mis­ce­ge­na­tion laws.

Be­tween 1948 and 1967, an ad­di­tion­al 14 states re­pealed anti-mis­ce­ge­na­tion laws. But 16 states con­tinued to re­fuse to o­ver­turn their anti-mis­ce­ge­na­tion laws. Af­ter de­cades of le­gal­ized and mur­der­ous dis­crim­i­na­tion, the Su­preme Court was forced to step in and de­cide the is­sue once and for all.

So un­til 1948, 30 states, more than half the coun­try, had anti-mis­ce­ge­na­tion laws that crim­i­nal­ized inter­ra­cial mar­riages. Take one step across a state bor­der and you were trans­formed from a law-a­bid­ing cit­i­zen into a crim­i­nal. Ev­i­dent­ly, legis­la­tures and the ma­jor­i­ty of their con­stit­u­ents were ob­liv­i­ous to or ap­proved of mis­ce­ge­na­tion laws.

The is­sue in Lov­ing at its core is no dif­fer­ent than the is­sue of same-sex mar­riage. A patch­work of dif­fer­ent state laws does no one any good. At the time of the a­dop­tion of the 14th Amendment, the pre­vail­ing be­lief sure­ly was that the "e­qual pro­tec­tion" clause did not en­com­pass inter­ra­cial mar­riages. The his­tori­cal facts under­mine Tice's o­pin­ion. Any at­tempt to dis­tin­guish Lov­ing from same-sex mar­riage based, as such at­tempts some­times are, on spe­cious ar­gu­ments about im­mu­ta­ble char­ac­ter­ist­ics doesn't get you any­where.

Fi­nal­ly, this coun­try's legis­la­tures, be­gin­ning in 1923, tried to pass an e­qual rights a­mend­ment for women (ERA). Today there is still no con­sti­tu­tion­al a­mend­ment cod­i­fy­ing e­qual rights for women (ERA). The legis­la­tures failed to do their duty in 1923, as now.

The Su­preme Court may not al­ways be right, but it's not wrong to step in where, as with same-sex mar­riage, it is ne­ces­sary and right.