Regardless of the year, June 26 is a date that LGBT Americans will never forget. On that day in 2003, the Supreme Court of the United States found Texas’ anti-sodomy laws unconstitutional in Lawrence v. Texas and, 10 years later, the top court gave us another huge victory when it ruled that Section 3 of the Defense of Marriage Act was unconstitutional because it violated our Fifth-Amendment rights.
It was a palpable moment where our government validated and deemed equal the love shared between two people in the LGBT community. But the tears of joy have long since dried, the rainbow flags have been folded and put away and here we are in Pennsylvania still waiting for our state to acknowledge us. I don’t know about you, but as state after state (TEXAS?!) begins to stand on the right side of history, my patience for Pennsylvania is wearing thin. Yet, as we look back 50 years ago to the not-too-distant past, the timeline for same-sex marriage is shockingly on par with that of the anti-miscegenation laws overturned to fully legalize interracial marriage.
It was once illegal for someone to marry a person of another race in almost every state in the country. Anti-miscegenation laws had their roots in colonial America, and by the early 20th century, they were the norm throughout the South and Midwest and on the West Coast. An 1883 ruling by the Supreme Court in Pace v. Alabama put an African-American man and a white woman in jail for two years for having a sexual relationship, and this continued to be the legal precedent for decades to come. But, responding to rising opposition to the racial inequalities caused by World War II, California in 1948 became the first state since the 19th century to overturn its anti-miscegenation statute. Slowly, over the next decade, many states with similar bans outside of the South overturned their anti-miscegenation laws on the grounds that they violated the equal-protection clause of the 14th Amendment. Massachusetts similarly started the domino effect in the fight for same-sex marriage equality, stating that its state constitution “forbids the creation of second-class citizens” when its top court determined in November 2003 that same-sex couples had the right to marry. The Supreme Court could have jumped on the marriage-equality train at any point in the decade that followed but chose not to hear cases that touched on the controversial subject.
Similarly, the Supreme Court had its chance to stand on the right side of history in 1955 when Naim v. Naim was appealed, but it chose not to hear the case, as it would force them to make a decision on the controversial subject of interracial marriage. Han Naim and Ruby Naim were an Asian man and white woman from Virginia who were wed in North Carolina, where the anti-miscegenation laws only prevented Caucasians from marrying African-Americans, as opposed to Virginia, which prevented all interracial marriage. A year later, when they went to divorce in Virginia, the state didn’t recognize their marriage in the first place and they were wedlocked — stuck in a marriage because their home state didn’t recognize it in the first place. Sound familiar?
The same occurs today in Pennsylvania and many other states that don’t recognize same-sex marriage. I have clients that were married in Canada when they first legalized marriage equality and didn’t research the residency requirements for divorce, only to find themselves in the same situation — wedlocked until Pennsylvania recognizes their union, or having to move to where they got married for six months to a year to meet the residency requirement and then get divorced. Neither were particularly helpful options 50 years ago, and they certainly still aren’t today.
As more states legalized interracial marriage, the Supreme Court finally dipped its collective toes in the waters of change in 1964, when it unanimously ruled in McLaughlin v. Florida that two unmarried people of opposite sexes were allowed to live together if one was Caucasian and the other African-American. Similar to Windsor, which took down DOMA, the ruling was the tipping point that states needed to remove their anti-miscegenation laws from the books. Since the fall of DOMA, four states (New Jersey, Hawaii, Illinois and New Mexico) have legalized same-sex marriage, while four others (Utah, Oklahoma, Virginia and Texas) have stayed rulings to allow same-sex marriage, pending appeal. These appeals that conservative lawmakers think are going to prevent marriage equality from “invading” their states are merely delaying the inevitable, and it’s these appeals that will ultimately bring the matter before the Supreme Court for a final decision, just as Loving v. Virginia did for interracial marriage in 1967.
The Supreme Court heard arguments in the case of Loving, where an African-American woman and Caucasian man were sentenced to a year in prison for marrying one another. The Supreme Court unanimously found Virginia’s and all other states’ anti-miscegenation statutes unconstitutional under the equal protection clause of the 14th Amendment to the Constitution. The ban on interracial marriage was overturned.
Just as McLaughlin marked the beginning of the end for institutionalized racism via anti-miscegenation laws, the Supreme Court’s finding that the federal DOMA was unconstitutional under the Fifth Amendment in Windsor in June was simply history repeating itself. In the nine months that have followed, federal courts in state after state have found state-level same-sex marriage bans unconstitutional. As of this publication, 33 states ban same-sex marriage (with Michigan presently being heard in court), but within three years of Windsor, I believe the Supreme Court will have decided the matter at the national level, just as it took three years to get to Loving.
You’d think with 50 years of inflation it would only take one year’s time, but again, this is simply history repeating itself. There are multiple marriage-equality lawsuits currently making their way forward in Pennsylvania, the first of which will most likely be Whitewood v. Wolf, scheduled for trial June 9 in Harrisburg. I know it’s only three months away, but hopefully this will be worth the wait.
Angela Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Send Angela your legal questions at [email protected].