It’s what we call faulty comparison: Mixed-Race Marriage and Same-Sex Marriage.
Those who liken one to another are likely focusing on the struggle to attain legitimacy for the union of the two parties in what is legally accepted as marriage. But the comparison ends there.
Rights: There are many things we claim to be a right, whether they are or not. For instance, many people mistakenly saying that driving is a right. It is not. It is a privilege. When I speak of rights, I’m talking about the widely recognized rights of American citizens laid out in the Bill of Rights (first 10 amendments to the Constitution) and or in other Constitutional amendments. Nothing else.
Voting is a right. Albeit an artificial right, it is indeed a right endowed by a government. For instance, in a monarchy, typically there would be no need for voting and no right to do so. The US being different, we have a government that only survives because of voting. But there was a time in this country when it was not legal for women or Blacks to vote. Each group struggled for that right to be granted to them. Giving women the right to vote, and later allowing Blacks to vote, was truly a matter of equality under the Constitution.
But marriage is not a Constitutional right. The 14th Amendment was used to strike down laws against mixed-race marriages for reasons of equal protection under the law. Here is what the Amendment says regarding equal protection:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The effect of this Amendment is to restrict states from making such laws. It in no way made inter-racial marriage legal, nor did it define marriage. It does not directly address marriage at all. But is was the basis for overturning the convictions of the Lovings and as was stated in the Supreme Court decision:
“These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Some will argue (and have already) that the same applies to same-sex marriage. It’s an interesting point because under equal protection, there should be no law prohibiting anyone to marry.
But not having a prohibition is not the same as allowing it. I don’t know of any law that prohibits me from marrying a cartoon or video game character. Jessica Rabbit and Lara Croft would be top of the list! But just because there is no law prohibiting me from doing so, that doesn’t mean that I can legally do so. It is faulty logic to say that absent a law, it’s legal.
To avoid this mess, and to set the record straight, what we need is a Constitutional Amendment that once and for all defines marriage. It will be the law of the land and no state would be able to say otherwise. But for all those calling for such a definition, they (we) must be equally ready to accept that the definition that wins may not be our preferred definition.