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Until 1948, only 20 states had either never enacted or had repealed anti-miscegenation laws.
Between 1948 and 1967, an additional 14 states repealed anti-miscegenation laws.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.
I also note that Tice didn't mention anything about the court being able to decide the case on sex discrimination grounds, which is perfectly within the ambit of the 14th Amendment.
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.
David Goldstein is a Minneapolis attorney.