"... It is important for America to come together even though we may have disagreements on certain social issues."
– Barack Obama on why he chose anti-gay marriage activist Pastor Rick Warren to give the invocation at the inauguration
Gay marriage isn’t a social issue. It’s a civil rights issue. In the 1950s and early 1960s, many whites insisted that black civil rights should be treated like social issues, that black civil rights leaders should go slowly and seek common ground and accommodation instead of receiving immediate, full rights. Today, the same is being demanded of gays and lesbians.
By definition, civil rights issues affect the rights of personal liberty guaranteed to United States citizens by the 13th and 14th amendments to the Constitution, and in similar provisions in state constitutions. The 13th amendment abolished slavery. The 14th amendment mandates equal protection for all under the law. Civil rights, say gay-marriage opponents, are only about race and gender, not sexual orientation. The 14th amendment doesn't say that, though. And the high court has not yet ruled.
Laws that deny people the right to marry are certainly civil rights issues. That was shown in the case of Loving v. Virginia (1967), which involved a married couple from Virginia: Mildred Loving, an African-American woman, to Richard Perry Loving, a white man. The U.S. Supreme Court, in overturning the Virginia law that banned marriage between blacks and whites, stated as its premise that "marriage is one of the basic civil rights of man..." The ruling also found that the Virginia law violated the equal protection clause of the 14th amendment.
The California Supreme Court decision of May 15, 2008, linked the basic civil right of marriage to equal protection under the law for gays and lesbians. It overturned a state law defining marriage as between man and woman, declaring not only that marriage is a constitutional right, but also that equal protection in the state Constitution granted the right of marriage to everybody.
The decision firmly equated discrimination on the basis of sexual orientation with discrimination based on race or gender. The court also found that there was no compelling state interest in banning gay marriage and that such a ban can bring harm to gay couples and their children.
Opponents to gay marriage argue that there is a compelling state and national interest in maintaining marriage as between man and woman only. The compelling interest is a moral one, they say. This argument is nothing new in the annals of American civil rights. White racists of the American past also claimed morality to defend their opposition to interracial marriage, desegregation and other civil rights issues.
We hear similar moral arguments about God’s intention to oppose gay marriage from the mouths of Pastor Rick Warren and his ilk.
Such moral arguments eventually will run out of steam in court. The lack of a compelling interest and the mandate for equal protection eventually will lead to the legalization of gay marriage. One of the best arguments for it came from Mildred Loving, who issued a rare public statement on the recent 40th anniversary of Loving v. Virginia:
"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."