U.S. District Court Judge Carlton Reeves struck down Mississippi’s same-sex marriage ban in November. Photo by Susan Voisin
Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection.
But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.
The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.
On equality in Mississippi:
There also is the uncomfortable reality that a couple southern states have taken decades to recognize interracial marriage. In Alabama, voters decided to remove their interracial marriage ban from the books only in 2000, 33 years after Loving was decided.
Mississippi voters repealed this State's ban on interracial marriage in 1987—a mere 21 years post-Loving—and only then by a margin of 52%-48%. Miss. Official and Statistical Register 1998-1992 579. Despite this achievement, a poll released in 2011 suggested that "nearly half" of our State's majority political party thought interracial marriage should be unlawful.
If the passage of 50 years has had such negligible impact on the public's opinion of interracial marriage in the Deep South, it is difficult to see how gay and lesbian Mississippians can depend on the political process to provide them any timely relief.
On the views of Mississippians:
The majority of Mississippians disapprove of same-sex marriage. They have made that abundantly clear through every channel in which popular opinion can be voiced. This court does not believe that the 86% of Mississippians who voted against same-sex marriage in 2004 did so with malice, bigotry, or hatred in their hearts. Many were simply trying to preserve their view of what a marriage should be, whether by religion or tradition. They deserve an explanation as to why same-sex marriage is now sweeping the country.
On who gets to enforce the Constitution:
James Meredith was admitted to the University of Mississippi over the will of the voters. Edith Windsor was not told to send a strongly worded letter to her Congressman. The political process does not enforce individual constitutional rights. The judiciary does.
On "responsible procreation":
The problem is that the State's limitation of marriage to opposite-sex couples is not a rational means of achieving that end. Gay and lesbian couples can form stable family units just as well as opposite-sex couples. Gay and lesbian couples can also love and care for children just as well as opposite-sex couples. It makes no sense to exclude them from an institution that promotes stable families and strengthens children. If the purpose of State-recognized marriage is to protect families and children, then the State should expand marriage rights to gay and lesbian couples, not bar them from it.
There's another reason why the State's limitation is irrational. Permitting same-sex marriage allows the State to continue to meet its articulated interest in encouraging "stable and enduring family relationships and . . . connecting children to stable families formed by their biological parents." Same-sex marriage doesn't impede that goal at all.
There is no reason to believe that opposite-sex couples will not marry because a same-sex couple can marry. White couples did not call off their marriages when the Supreme Court made interracial marriages lawful. Free-world couples did not cancel their weddings when the Supreme Court permitted incarcerated persons to marry. There is no harm to anyone else.
In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions:
Can gay and lesbian citizens love?
Can gay and lesbian citizens have long-lasting and committed relationships?
Can gay and lesbian citizens love and care for children?
Can gay and lesbian citizens provide what is best for their children?
Can gay and lesbian citizens help make their children good and productive citizens?
Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity?
Without the right to marry, are gay and lesbian citizens subjected to state-sanctioned prejudice?
Answering "Yes" to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage.