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Same-sex arguments using Loving wrong

Written by Tim Rohr
Apr. 13

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In 1967, the U.S. Supreme Court, in the decision known as Loving v. Virginia, ruled that state laws banning
interracial marriage were unconstitutional. As one half of an interracial marriage, I am a direct and personal
beneficiary of that decision and, as such, maintain and assert a personal right and duty to preserve its authentic
legacy.
In Loving, the Warren court ruled that marriage is a constitutional right regardless of race. Same-sex marriage
advocates claim that marriage is a constitutional right regardless of gender -- and appeal to the Loving decision for
precedent.
Their basis is a phrase found in Loving: "Marriage is one of the 'basic civil rights of man.'" And while it is
oft-trumpeted, it is dishonest to do so. For there is no period after the word "man," there is a comma. The complete
sentence reads: "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."
There are two points here:
That the court saw marriage as "fundamental to our very existence and survival" -- and did not see the need to spell
that out -- is stark evidence that the procreative aspect of marriage, or at least its potential, is unquestionably
presumed and intrinsically linked.
The words "basic civil rights of man" are in quotes because they reference a precedent case, which is immediately
noted: Skinner v. Oklahoma (1942). The context from Skinner is: "We are dealing here with legislation which
involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and
survival of the race.
If there is any doubt about what the Loving court meant by "fundamental to our very existence and survival," the full
quote from Skinner, "Marriage and procreation are fundamental to the very existence and survival of the race,"
leaves no doubt.
That same-sex marriage advocates continue to declare Loving as precedent, betrays either an ignorance of the case or
a manipulation of the ignorance of others.
True, Mildred Loving later stated she believed everyone should be allowed to marry "no matter their sexual
orientation." But employing Mrs. Loving's personal opinion to advance the cause of same-sex marriage is the useless
equivalent of pro-lifers demanding the overturn of Roe v Wade because Norma McCorvey (aka Jane Roe), is now
pro-life.
'Foundation of the family'
And there's more. Immediately following the reference to Skinner, Chief Justice Warren writes: "See also Maynard
v. Hill, 125 U.S. 190 (1888)." Maynard involved a complex divorce case which eventually required the court to
define the purpose of marriage and its fundamental relation to the state.
In so doing, the Maynard court enshrined into law some of the most profound things ever said about marriage by a
court, including this: "It is an institution, in the maintenance of which in its purity the public is deeply interested, for
it is the foundation of the family and of society, without which there would be neither civilization nor progress." And
this: (Marriage is) "the first step from barbarism to incipient civilization, the purest tie of social life and the true basis
of human progress."
We might note, that at least according to Maynard, to tamper with marriage is "the first step" back to "barbarism"
and would fundamentally negate social life and human progress.
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The connection in law between marriage and procreation is blatant and plain. And just as blatant and plain is the lack
of any mention of "love and affection" as a basis for marriage. This is critical. The central argument for conferring
marital status on same-sex relationships is that same-sex "love and affection" is equal in dignity to that of
opposite-sex couples. However, "love and affection" nowhere appears in any law or ruling as a basis for marital
status.
Essentially, same-sex advocates are advocating for a completely new contractual relationship on grounds not found
in marriage law. This is why they would do better to construct an entirely new division of law which recognizes
"love and affection" as the central tenet of a contractual relationship.
Marriage, as it has been defined for centuries, simply does not do that.

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