In some ways, at least, that’s what it has sounded like since U.S. District Court Judge Orlando Garcia on Wednesday struck down the Texas ban on same-sex marriage. If many of the complaints we heard from politicians and activists on the right sounded familiar, they should have: they’re essentially the same ones Americans heard when the U.S. Supreme Court struck down state bans against interracial marriage nearly five decades ago.
Gov. Rick Perry insisted on Wednesday that “the 10th Amendment [to the U.S. Constitution] guarantees Texas voters the freedom to make these decisions.” U.S. Sen. Ted Cruz complained that Judge Garcia’s decision is a “troubling display of judicial activism” and that “unelected judges should not be substituting their own policy views for the reasoned judgments of the citizens of Texas.” Others joined in with similar denunciations of “judicial activism” and calls to respect state sovereignty over marriage.
Railroad Commissioner Barry Smitherman, who is seeking the Republican nomination for state attorney general this year, portrayed the court’s decision as “disastrous” and made a religious case for upholding the ban on same-sex marriage:
“Some liberal, unelected federal judges with lifetime appointments seem to be missing the point that not only is there a rational basis for our constitutional definition of marriage, there is a compelling governmental interest in maintaining core Judeo-Christian values here in Texas. From the founding of the Republic, states have always maintained the right to define marriage. Whether it was a proscription on the ability of people to marry a first or second cousin or some other family member, or a prohibition on children getting married, states have always rightfully been the ones to define who could and who could not marry.”
All of those arguments essentially followed the script used by opponents of interracial marriage when the U.S. Supreme Court considered state bans on such unions in the 1967 Loving v. Virginia case. Like Smitherman, the Virginia judge who initially heard the case against Mildred and Richard Loving referenced religious beliefs as a rationale for the state barring interracial marriage:
“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.”
Like Gov. Perry and Cruz, the Virginia Supreme Court of Appeals — in upholding the state law barring the Lovings from marrying each other — insisted that states alone have the right to make decisions on marriage. As the U.S. Supreme Court noted in the Loving decision, the Virginia court “reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.”
In addition to warning about the “mongrelization” of the races, some critics in 1967 (and still today) worried aloud about the children of interracial couples — much the same as critics today insist that children of same-sex couples are at risk (despite ample evidence to the contrary).
Partly because this is an election year and partly because right-wing pressure groups have so much invested in demonizing LGBT people and their families, we expect the rhetoric surrounding Judge Garcia’s decision will remain heated for a while. But we suspect that, in the end, history will judge Perry, Cruz and other like-minded politicians as harshly as it does those who denounced interracial marriage and Loving v. Virginia in 1967.