HIJACKING CIVIL WRONGS: SAME SEX MARRIAGE AND A HISTORICAL COMPARISON. On a balmy Virginia morning, around two a.m.

, Mildred Jeter Loving and her new husband, Richard Loving, were awakened from their sleep by three flashlights beaming into their faces. What are you doing in bed with this lady? One of the officers scowled. Mildred explained that they had just gotten married five weeks earlier, as Richard pointed to the marriage license from the District of Columbia hanging on their wall. Unimpressed, the police arrested the couple and put them in jail. Thats no good here, Sheriff R. Garnett Brooks and his two deputies told them, referencing the license. Mildred (age 18) and Richard (age 24) had grown up together in the same area of Virginia and had known one another for several years. She was black; he was white. They never planned to start a civil rights stir. All they wanted to do was be married and raise a family. In recent years the proponents of same-sex marriage have been using Loving vs. Virginia as a legal model for their own situation. The argument is that the denial of same-sex marriage is the same thing as not allowing blacks and whites to marry under anti-miscegenation law. Turning to Loving and other similar cases, gay activists claim this particular case sets a precedent for same-sex marriage and that they, too, should be allowed to legally marry. But is this so? Does Loving really present a prior reported opinion of an appeals court which establishes the legal rule (authority) in the future on the same legal question decided in the prior judgment or is the same-sex marriage appeal to the Loving case merely one of smoke and mirrors? In order to determine this, we have to know a little about the background of the Loving case. THE LAW BEFORE LOVING. Virginia had an anti-miscegenation law on the books long before the oft mentioned Act to Preserve Racial Integrity (1924). As early as 1691, Virginia had outlawed interracial marriage, referring to the offspring of interracial marriages as an abominable mixture and spurious issue. Though some of these early laws wither went unrecorded or had long since been tucked away somewhere, and racial intermingling did occur, it was a social given that people just didnt intermingle the races, at least not the respectable folk. But then came 1868 and the Fourteenth Amendment. As long as the Negro was held in a state of slavery, and could be controlled by slave owners, there wasnt much concern about interracial marriage. Though slavery faded, segregation was still in full force in many states. Southern states had to agree to ratify the Fourteenth Amendment if they wanted to be admitted back into the Union. So they did. Begrudgingly. The Fourteenth Amendment, however, changed things and people began to panic. Could this open the door for more mongrels being born? This is around the same time that the eugenics movement entered the picture. Professor Paul Lombardo of the University of Virginia makes a direct correlation between eugenics and the resurgence of the anti-miscegenation law: In the early 1900s, the eugenics movement supplied a new set of arguments to support

existing restrictions on interracial marriage. These arguments incorporated a scientific braind of racism, emphasizing the supposed biological dangers of mixing the races- also known as miscegenation. VIRGINIA AND ANTI-MISCEGENTATION. Walter Plecker, a close friend of Madison Grant, was the first official registrar for the Virginia Bureau of Vital Statistics. Part of his duties included over-seeing the issuance of marriage licenses, birth certificates, recording divorce decrees, and the like. Plecker, a physician, had a penchant for numbers-crunching and he was also head of the Health Department. What this meant was that Plecker wielded a great deal of influence and control. Plecker ascribed to the one drop theory. To summarize, the one drop theory encompassed the notion that if the off-spring of a mixed race marriage only had one drop- or less than 1/10th of non-white blood in them, then they automatically belonged to the inferior or non-Caucasian race. Plecker wasnt thrilled about either blacks nor Native Americans. In fact, he believed that most Native Americans were not really pure Indian but that they had been in-breeding with free blacks for some time, something Plecker believed to be a scheme concocted by blacks so they could pass their offspring off as white. So ardently convinced of this was Plecker that he was known to scratch over the area on birth certificates for newborn Indian babies and substitute Indian for Negro. Though Plecker was obviously pro-eugenics, he could not have formulated and promoted the anti-miscegenation law on his own. And though some have attributed the 1924 Act solely to Plecker, the fact is that two other men were also involved. Ernest Cox was no stranger to eugenics. In fact, he was blatantly in favor of white supremacy. Author of a booklet entitled WHITE AMERICA, Cox outlines a historical trail which he believed proved that those white nations which intermingled their seed with the Negro ended up becoming extinct over time. Unlike other eugenics adherents of the day, Cox was not in favor of sterilizing blacks. And he wasnt really in favor of segregation per se. Instead, he believed in repatriation, or sending all blacks back to Africa as a solution to the Negro question. This would mean that the government was going to have to help them in the form of $1000.00 per year (in certificates) for the rest of their lives. And of course, repatriation would be strictly voluntary. Cox went so far as to draft this into the form of legislation which he hoped would be proposed to Congress. Working with Plecker and Cox was John Powell, probably the most interesting of the trio. Powell, a talented pianist and composer, included in his version of anti-miscegenation the protecting of anglo-saxon music from black influences. Powell was a graduate of the University of Virginia in 1901 and, shortly after graduating, went on a concert tour of Europe. It was on this tour that he met and became close friends with one Joseph Conrad. Conrad had traveled to Africa and in 1902 wrote a novella entitled HEART OF DARKNESS. The short novella has been often looked at as a fight against good and evil, though, back in those days, some people also believed it was a simplistic, cautionary tale of white supremacy.

Powell was so impressed with the novella that, upon returning to the United States, he began researching black music. Powell also began to compose. One of his more famous compostions was entitled RAPSODIE NEGRE, which Powell dedicated to Conrad at his debut performance at Carnagie Hall. By this time, Powell was convinced that anglo music was superior to black music. He was also committed to national purity and the promotion of the white race. This led to Powell having the dubious distinction of becoming the founder of the Anglo Saxon Clubs of America, an upper-crust version of the KKK, under which he issued a number of pamphlets addressing the problem of race mixing. In one of these pamphlets, Powell writes that eventually becomes the basis for the Virginia Act: 1) There shall be instituted immediately a system of registration and birth certificates showing Racial compositionof every resident of this State; 2) No marriage license shall be granted save upon presentation and attestation under oath by both parties of said registration or birth certificates 3) White persons may only marry white persons; 4) For the purposes of this legislation, the term white persons shall only apply to individuals who have no trace whatsoever of any blood other than Caucasian. Though this model law was altered later, a comparison shows marked similarities. The first part (point #1) permitted the State Registrar of Vital Statistics to prepare a form whereon the racial composition of any individual may be traced, including interracial mingling and where or when it took place in the family genealogy, if possible. This registration of pedigree was not mandatory. The lack of a mandatory registration of ones race didnt guarantee that a mixed racial person would be let off the hook, as the section regarding marriage licensing made it a felony for someone to falsify information in order to give, receive, a marriage license. And, if the people applying for a license lied? If there is reasonable cause to disbelieve that applicants are of pure white race, when that fact is stated, the clerk or deputy clerk, shall withhold the granting of the license until satisfactory proof is produced that both applicants are white persons as provided by this act. In order to ensure that there was no misunderstanding about intermingling, point five in the Act stated: It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood other than white and American Indian. For the purpose of this act, the term white person shall apply only to the person who has not [a] trace whatsoever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of American Indian and has no other non-Caucasian blood shall be seemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this act. LAW BASED ON FLAW White supremacy wasnt just about the alleged superiority of whites over blacks. It was about keeping the race pure, but why? Again, the bunny trail leads us back to eugenics. According to eugenic theory, everything was essentially in the genes. This included such

things as intellect, criminal behavior, sexual proclivities, etc. Though the mentally challenged were more often the main target of eugenics theories, when it came to the implementation of eugenic solutions to inhibit crime (if they dont breed there will eventually be no more criminals) blacks were also pegged as being criminal in nature, if not that, then of lower intellect which made them more likely to turn into criminal activity in order to survive. While there isnt room to go into the full history of eugenics here, its important to not that the American kingpin of he eugenics movement, H.H. Goddard, was not the first to link crime to lower intellect. But he was the first American to supposedly prove that the two co-existed. Goddards work focused on genealogical charts, the most famous being the Kallikak family. So influential was his work that whole laws were based upon his studies, including immigration laws which would later be partially responsible for many Jews remaining stranded in Nazi Germany. Goddard later recanted his findings and admitted that his suppositions about the mentally challenged were wrong. But just as people persisted in accepting these types of flawed science where the mentally challenged were concerned, so they also persisted in applying it to the various races as well. The ultimate end of the bunny trail lands smack in the laps of Sir Francis Galton and his cousin, Charles Darwin. Be that as it may, it was still flawed science. Unfortunately many aAmerican lives, including that of the Lovings, would be traumatized, if not destroyed, by the elements of eugenics. THE POLITICAL SHELL GAME In recent years proponents of same-sex marriage have stated that there are parallels between the Loving case and the denial of marriage to same-sex persons. In fact, Loving vs. Virginia is said to set precedent for the legalizing of same-sex marriage. Claiming that the historical parallels between the struggles for same-sex marriage and interracial marriages are striking, gay activists and their supporters fail to make public the distinctions between the two situations. Distinctions which call into question the use of Loving vs. Virginia as a precedent. A precedent isnt determined solely because of generic similarities. If that were the case, dogs could claim (if they could speak) that they had certain rights under the Fourteenth Amendment because theyre made to wear collars, as were black slaves once forced to wear collars. A generic similarity, such as being refused the right to marry, means nothing. Lots of people are told they cannot get married. Biological relations of a certain order, people under the age of majority, people with certain conditions or diseases, etc. In order for a previous legal decision to be applicable as a precedent, it has to adhere to certain general guidelines: 1) The situation in question has to occur in the same jurisdiction (from higher court Or court of equal rank if an appellate court); 2) The situation must be applicable to the same law; 3) There must be factual similarity; 4) It must be holding and not dictum Basically what this boils down to is that in order for a previously determined law to be applicable as setting a precedent, the issue presently being heard has to be very similar to the law being used as the precedent. Now the big question: does Loving set a genuine precedent for same-sex marriage? Historically no, it doesnt. But whenever gay activists and their supporters want people to think it does, they conveniently quote from the U.S. Supreme Court decision:

 The freedom to marry has long been recognized as one of the vital personal rights essential to the order and pursuit of happiness, said the Courts majority opinion. The case erased Southern states laws barring whites and blacks from marrying-- a unique historical precendent to the prohibition homosexuals now face. The shell game at hand is this: make people think that the Loving case was determined strictly by the issue of race, without anything else influencing the Courts decision that the State of Virginia had violated the Fourteenth Amendment. And, while youre at it, eliminate any distinctions between race and sexual preferences. I wont go into a treatise on why race and homosexuality are not synonymous. I will, however, explain the historical (hence factual similarity differences) between Loving and same-sex marriage. THE DISTINCTIONS In Loving, the couple was denied marriage not just a license to marry. Without due process, they were arrested, convicted of a felony offense, and told they must leave the State for a period of twenty-five years or spend the next year in the State penitentiary. All based upon one thing and one thing only: faulty science. In this case, white supremacy masquerading as science, a fact even the high Court recognized: There can be no question that Virginias miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated distinctions between citizens based solely because of their ancestry. And again: There is patently no legitimate overriding purpose independent of invidious discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. The court understood what was going on. They knew it was a eugenics-based law. They also knew that proscribing a behavior (condemning it as harmful, even before it takes place) to another human-being is not the stuff of American law. In this case, the assumption was the reproduction of mongrels which would, in turn (and if it wasnt stopped) take down the State and the Nation as well as the white race. Interestingly enough, such a thing has never, in the history of America, been attributed to homosexuals. Of course, it doesnt take a rocket scientist to figure out that two lesbians or two gay males cannot reproduce in and of themselves. Making babies still requires a sperm and an egg. But the law has NEVER prohibited a gay male from marrying a lesbian for fear that their offspring could produce mongrels. Nor have same-sex couples been denied marriage because Bob and Tom might reproduce a mongrel child, either. Another thing to consider is the fact that in the Loving case the racial difference was obvious. Though there is some mention that Mrs. Loving may well have been part Native American there is also evidence that she was recognizably black. It was also quite evident that Mr. Loving was white. Therefore it was a simple task to conclude that this law singled them out for invidious discrimination. But what is meant by same-sex? Does that necessarily mean homosexual? I am the same sex

as my Mother but neither one of us are lesbian. The Canadian model defines marriage as the lawful union of two persons to the exclusion of all others. Doesnt sound distinctly homosexual to me! So unlike Loving, where the discrimination is invidious, denial of marriage based upon sexual identification doesnt seem to be as obvious and therefore Loving cannot be appealed to for historical precedent. A better parallel for the use of Loving could be drawn if heterosexuals were not allowed to marry. After all, blacks and whites were considered polar opposites in their day just as men and women are generally considered to be polar opposites (men are from Mars and women from Venus, remember?) On the other hand, had the Virginia statute said that no blacks could marry, the similarity to same-sex marriage prohibition would be decidedly closer. The Supreme Court also made an interesting assumption in the Loving case: Marriage is one of the basic rights of man, fundamental to our very existence and survival In the Jetters case, Mildred was already pregnant. The Court obviously didnt mean that marriage, as a generic and without specified declaration, was fundamental to survival. What the Court clearly meant was that marriage carried with it the presupposition that society would exist and survive because people entering into it did so with the intention of procreating. And not just generally procreating, but specifically carrying on both a familial and social lineage. That cannot be said of homosexuals, for no gay male couple nor lesbian couple can procreate without external interventions. SUMMARY At the present time there are no states which refuse to license a gay man and a lesbian who wish to marry one another. Theyre allowed to marry, bear children, and raise them. Gays do not have to hide their homosexuality for fear of arrest on sodomy laws, either. There is no law which would dissolve the union of a gay male and lesbian as their union would fit the marriage law of any state, regardless of the couples individual sexual identities. But using the Loving case as precedent to change the law, for no other reason than this is what I want is an abuse of one of the most important legal cases in American history. A case which began the end of discrimination based on skin color; helped topple segregation by race; and effectively began a steam roller effect in taking down eugenics laws- laws which harmed and marginalized many groups of people. SOURCES: U.S. SUPREME COURT, LOVING V. VIRGINIA, 388 U.S.1 (1967) AN ACT TO PERSERVE RACIAL INTEGRITY, 1924 EUGENICS ARCHIVES, PAUL LOMBARDO, EUGENIC LAWS AGAINST RACE MIXING TIME CAPSULES, LARRY HALL, AUG. 20, 2003, COMPOSER JOHN POWELL LEFT CONTROVERSIAL LEGACY JOHN POWELL: HIS RACIAL AND CULTURAL IDEOLOGIES, DAVID Z. KUSHNER WHITE AMERICA, ERNEST SEVIER COX, 1923, RICHMOND WHITE AMERICAN SOCIETY MONTGOMERY ADVISOR, JULY 16, 1997

LOVING CASES LESSONS LINGER, MAJOR W. COX THE COMPETITION OF THE RACES, FROM THE PASSING OF THE GREAT RACE ARNO PRESS AND THE NY TIMES, 1970, MADISON GRANT A BILL TO PROVIDE FOR THE VOLUNTARY REPATRIATION OF NEGROES TO THEIR AFRICAN HOMELAND, FEATURED IN WHITE AMERICA ACLU NORTHERN CALIFORNIA, http://www.aclu.org/lesbian-and-gay/knight.html