Davis Merritt: Fundamental rights supersede majority rule

Leon M. Bazile, a trial judge in Virginia, back in ’59 said upon sentencing Mildred and Richard Loving to a year in prison for getting married: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.…The fact that he separated the races shows that he did not intend for the races to mix.”

The judge suspended the sentences for 25 years provided the Lovings left Virginia and thus ceased “cohabiting as man and wife against the peace and dignity of the state.” Mildred was of African-American and Native American descent; Richard was white.

That might sound like 1859, but it was 1959. And it was not until 1967 – a century after the end of the Civil War – that the couple’s constitutional right to marry each other would be recognized by a unanimous U.S. Supreme Court.

That right, the court said, is guaranteed by the due-process clause of the Fifth Amendment and the equal-protection clause of the 14th. States may not deny such fundamental rights, period.

If states must allow a person to choose to marry someone of a different race, must they also allow a person to choose someone of the same gender?

The four U.S. Circuit Courts of Appeal to rule thus far (10th, 7th, 9th and 4th) all said “yes,” the states must. Dozens of lower federal courts have agreed, with only one disagreeing. Those lower-court decisions are on appeal.

Thus, the long process that led to the Lovings’ case repeats.

Today’s opposing voices differ in approach from Bazile’s, but match his in level of enlightenment. They storm about “activist judges” (Gov. Sam Brownback). And “a handful of judges” telling “an entire state that their constitution is unconstitutional” (Rep. Steve Brunk, R-Wichita). And Brownback, Brunk and others remind us that 70 percent of Kansans voted to ban same-sex marriage in 2005.

All of the arguments on both sides of the issue will be moot – though not likely muted – should the U.S. Supreme Court follow the Loving precedent. Then it will not matter if 99.9 percent of the people of a state vote for and only 0.1 percent vote against a restriction on same-sex marriage.

The persistent, wishful fiction that states can nullify the constitutional rights of U.S. citizens is every bit as archaic and irrational as were Bazile’s ideas about history, heredity and God’s will. If a majority of people in a state can vote away other people’s constitutional rights, the Constitution has no meaning or purpose.

An increasing number of Americans, well beyond a majority, accept same-sex marriage as a right and a reality, whether desirable or not to them individually. But the legal and rhetorical struggles continue and they are clearly, and often brilliantly, illuminated in the four circuit court opinions.

The Utah opinion in the 10th Circuit, which includes Kansas, is particularly approachable. All the opinions are online.

Reading them requires patience, though not a law degree. Their detailed and dispassionate analyses of each argument allow the reader to come down on the side of either the majority of the court or the dissenters.

It would be helpful (if astonishing) for more people involved in the dispute to do that reading, particularly public officials. We might then replace an emotional, morality-driven argument with enlightened, logical and less emotional discourse, and maybe even accommodation.

This story was originally published October 13, 2014 at 7:03 PM with the headline "Davis Merritt: Fundamental rights supersede majority rule."