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Jami FloydBack to OpinionJami Floyd

Loving and marriage

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

So decreed the United States Supreme Court in Loving v. Virginia, the aptly titled 1967 landmark case that reaffirmed marriage as a fundamental right and overturned the nation’s anti-miscegenation laws, i.e., laws that told people who they could — and could not — marry. Until Loving, a majority of U.S. states criminalized marriage (and sometimes sexual relations) between members of different races. The Loving decision declared all such laws unconstitutional.

Now in 2013, marriage is back before the U.S. Supreme Court, with two cases that require the justices again to consider who can marry – and who cannot. Last week, the court heard arguments for and against same-sex marriage.

This artist rendering shows Paul Clement, second from left, with Solicitor General Donald B. Verrilli Jr. seated, right, addresses the Supreme Court in Washington, Wednesday, March 27, 2013, as the court heard arguments on the Defense of Marriage Act (DOMA) case. Photo: AP Photo/Dana Verkouteren

Last Tuesday, the court entertained arguments about California’s gay marriage ban, Proposition 8, which passed as a 2008 ballot initiative, months after the California Supreme Court had legalized same-sex unions — and thousands of gay couples had already wed in the state. Two federal courts have struck down Proposition 8 as discriminatory, leaving the U.S. Supreme Court to make a final judgment.

On Wednesday, the court heard arguments in the second case, the challenge to the so-called Defense of Marriage Act (DOMA). The portion of DOM at issue in this case concrions the denial of federal benefits to same-sex couples.

After her wife died, Edith Windsor paid a six-figure estate tax bill, because the federal government does not recognize same-sex marriage. But Windsor is a resident of New York, one of nine states (and the District of Columbia) where gay marriage is legal. Windsor argues that the federal government is discriminating against her by not recognizing her state-sanctioned marriage. Recently, two federal appeals courts struck down DOMA as unconstitutional, requiring the Supreme Court to settle the dispute between the courts and Congress.

Of course, it is impossible to predict what the Supreme Court will decide in the same-sex marriage arena. Few would have predicted the dramatic and powerful ruling in Loving v. Virginia, at the climax of the Civil Rights Movement. Yet, a unanimous Supreme Court struck down as unconstitutional all race-based legal restrictions on marriage in the United States.

The Loving case had special meaning for me, and by extension so do the current cases about marriage as a civil and fundamental right.

I was three years old when the case came down. My great grandmother, Ollie James, was born into slavery in Mississippi. My mother’s people were slaveholders, white Anglo-Saxons from Missouri and, later Texas. Still, my parents (who had met at university, abroad) decided to marry. The year was 1954 and it was illegal in a majority of states for them to be married because my father is black and my mother is white.

But they were determined and traveled to three states, until they found an Illinois doctor willing to give them the requisite blood test and a Chicago justice of the peace courageous enough to sign the marriage certificate.

In the early years, they faced terrific discrimination in employment and housing. Emmett Till was still alive. So were Medgar Evers and Dr. King and so many of the activists who would inspire and indeed lead the movement we would come to all the Civil Rights Movement. Placed in context, this movement, and their marriage came less than 100 years after the death of Lincoln and the end of the Civil War. Jim Crow was still alive and well. My parents were married for 13 years before the landmark Loving which gave the imprimatur of legitimacy to their marriage.

Same-sex couples seek the same stamp of legitimacy from the court and from the larger society. There is a lot of speculation about what the court will do with either, or both of these cases. Why did they take the cases? How far will the justices go? Will they issue a sweeping ruling? Will they find middle ground? Or will they issue the most limited rulings possible, leaving the larger constitutional issues for another day – and the societal debate about gay marriage to for the states to decide.

In my coverage of the case, attorneys and advocates on both sides of the issue have acknowledged the parallels to the civil rights movement gay Americans face, especially those who seek to marry and start a family. The discrimination – de facto and de jure. The fear of violence. The denial of benefits. The desire to be treated as equal under the law.

Still, gay citizens do not belong to a suspect class as do African Americans (a legal categorization that has significance in history and constitutional jurisprudence); and, for the purpose of the present cases, the Supreme Court will not have to reach the question of whether gay Americans have a fundamental right to marry (they can decide the Prop 8 case on much narrower grounds).

At the same time, it seems the Constitution will ultimately require extending what has been determined to be a fundamental right to all Americans, black or white, gay or straight. If not now — someday.

Jami Floyd served as a clerk in the California Supreme Court where Prop.  8 has been partially adjudicated. Read her previous Op-Ed: “Gay marriage in front of the big bench.”