It's A Gray Area: History's lessons support marriage equality

These thoughts might be controversial to some, but the issue is timely, and the moment to correct a series of injustices is now. Therefore, it is time for our country, and all of us in it, to recognize and enforce marriage equality.

Before I go further, it must be said that libertarians believe that neither government nor anyone else has the right to tell other people what they should believe. That issue should be left to the individuals themselves, as guided by their chosen religious teachings, philosophies and core beliefs.

Furthermore, most libertarians do not believe that the government should be involved in issuing marriage licenses at all. And further, religious institutions should continue to have the constitutional right to decide who can and cannot receive their blessings.

Maybe a little history would provide some perspective on the issue of marriage equality.

In our country, most state governments began issuing marriage licenses as a way of enforcing miscegenation laws, which made interracial marriage, cohabitation and sexual relationships a crime. In fact, the term "miscegenation" was first coined in the United States in 1863.

Similar laws were also enforced in Nazi Germany and apartheid South Africa. But after World War II, many states began to repeal their miscegenation laws, and those that remained on the books were declared unconstitutional by the U.S. Supreme Court in the 1967 case Loving vs. the State of Virginia as a violation of the Equal Protection Clause of the 14th Amendment.

Since that time, it has been the law of our land that no governments could intrude upon an adult's choice of a heterosexual partner based on race. I hope that everyone pondering this issue is in agreement with that result.

As to some of my personal experiences as a trial court judge, when I was on the adoptions calendar, I was presented on several occasions with applications for the adoption of a natural mother's child by her lesbian live-in partner. In each case, after looking at the facts and being mindful that the legal standard was to act in the best interest of the child, I granted the application and personally performed the adoption ceremony. Those were the right decisions.

In reaching those decisions, I understood that society rightfully encourages the commitment by one person to another. What if I had not approved the mother's application? Do you think that the two women would have then seen the light, as some might phrase it, left their partnership and sought to live in a heterosexual relationship? Not a chance. They would have continued their live-in relationship but without the legal commitment of the second partner to the child. That was neither in the child's best interest, nor in society's.

So now the question of whether gay and lesbian adults legally will be able to marry each other is before our courts and our country. For many reasons, the answer to that question should be yes.

Fortunately we do not live in a democracy, which is a government in which the majority rules. Instead we live in a democratic republic, where the constitutional rights of the minority are protected from the dictates of the majority.

As you can imagine, after the Civil War and the passage of the 13th Amendment prohibiting slavery, a majority of voters in several states probably still would have approved a system of slavery. But even so, the minority rights to racial equality were enforced. Similarly, after the passage of the 14th Amendment, a majority in many states may have felt that women should not possess the same rights as men. But once again and with time, minority rights to gender equality were enforced as a matter of equal protection under the law. And now it is similarly time to protect marriage equality.

It is true that some good and thoughtful people are concerned that enforcing marriage equality will take us further down the road to a weakened system of values and morality. But those people must understand that those same arguments were raised with racial and gender equality as well. And they should also realize that science — and real life — informs us that, just as with one's race and gender, homosexuality is not a lifestyle choice but instead is a hard-wired trait.

Other good and thoughtful people argue that, as a long-term matter of public policy, marriage should only be authorized if it is used to further procreation. But that argument could also be applied to prohibit people older than 50 from becoming legally married, or anyone else who physically cannot reproduce. Instead, prohibitions of marriage should be imposed by governments only for clear-cut issues, such as incest and the lack of voluntary and knowing consent or to protect underage children from marrying.

So why is depriving rights by governments to gay and lesbian couples such an injustice? Why not instead simply allow them legally to form "civil unions"? Because there are literally thousands of line items in federal, state and local statutes and regulations that confer benefits upon those people who are labeled "married." These include more favorable treatment with regard to income and inheritance taxes, as well as rights to visit and make healthcare decisions for marital partners when they are hospitalized.

In summary, gays and lesbians generally are just as committed to their partners as anyone else. Therefore, as with the matters of race and gender equality, it is time for their rights to be enforced. In fact, I will go so far as to say that soon, just as with racial and gender equality, we will all look back and wonder why we had not all stood up for marriage equality long before now.

JAMES P. GRAY is a retired Orange County Superior Court judge. He lives in Newport Beach. He can be contacted at

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