In the middle of the night the sheriff barged in, surprising two people in their bed. They were not -- as in the Texas case recently decided by the Supreme Court -- two men, but a husband and wife, whom the sheriff nonetheless hauled off to jail. Charged with a felony, they were convicted and banished from their home state of Virginia -- and not until nine years later, in 1967, were they permitted to return home, when the Supreme Court finally ruled that a white man could not be forbidden to marry a black woman.
At one time most states banned marriage between races, and courts upheld such laws many times. Does our evolution -- today we read those decisions with horror -- provide a template for where society is heading with respect to homosexual marriage? Not necessarily. The California court that ruled in 1948 that marriage "is a fundamental right of free men" didn't mean the comment the way we might read it today.
Yet there is a striking similarity between the arguments used to justify anti-miscegenation laws and the arguments put forward today against gay marriage. Tradition, a respect for majority opinion, religion, science, sociology -- all were invoked with great somberness and much citation of experts and their research. The prejudice that propped up all the arguments -- and, for us, invalidates them -- was invisible or inevitable to their proponents.
Richard and Mildred Loving were the married couple roused by the Caroline County sheriff that night in 1958. To evade Virginia's racist law, they had traveled to the District of Columbia to be married and then had moved back home. But that didn't save them.
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents," their sentencing judge decreed. "The fact that he separated the races shows that he did not intend for the races to mix."
The Lovings did not view themselves as civil rights pioneers, but they weren't happy living in the big city of Washington, where the judge had allowed them to move as an alternative to prison. They asked for help from Attorney General Robert Kennedy, who sent them to the American Civil Liberties Union. The ACLU helped them find lawyers, who filed on their behalf a class-action suit that finally prevailed, invalidating Virginia's law and similar statutes in 15 other states.
For decades until then, the defense of such laws had been fierce and, often, almost incredulous at challenge. "The amalgamation of the races is not only unnatural, but is always productive of deplorable results," a Georgia court had decreed in 1869. Nearly a century later, in 1955, Virginia's Supreme Court was still arguing that laws against interracial marriage rested on a foundation of "natural law . . . as clearly divine as that which imparted . . . different natures" to the races.
Nor was the South alone. California's state government, seeking to defend its anti-miscegenation law in 1948, claimed that such marriages produced weak progeny, themselves unable to bear children. It said such marriages promoted social and racial conflict.
The California court, alone among state courts, disagreed. It acknowledged that 30 states at the time had similar laws and that none had been found unconstitutional. But, it concluded, "the fact alone that the discrimination has been sanctioned by the state for many years" could not justify its continuation.
Massachusetts Sen. John Kerry, a Democratic candidate for president, said during an interview at The Post last week that he favors civil unions for gays but not marriage. "Marriage is an institution between men and women for the purpose of having children and procreating," he said, though he himself is in a second marriage, to a woman in a second marriage, that appears unconnected to such purpose.
"That's my belief, and some people may not like it," the senator went on. "I've been willing to take my lumps on everything that I think enhances people's rights and gives people equality, but I think there is something special about the institution of marriage -- the oldest institution in the world."
Many Americans feel the same way, of course. And the mere similarity of their arguments to those used against the Lovings -- the dubious scientific evidence about harm to children, the deference to societal discomfort, the reliance on historical convention or "natural" law -- doesn't prove that they're as wrong this time as they were then.
At the least, though, it ought to make us try to drain the bias from the arguments and examine how much, if anything, is left. "It may and will happen that a regulation was reasonable from the point of view of the Legislature enacting it and the court first passing on it," a California judge wrote in the 1948 case.
"And yet, in the light of future developments, all the reasonableness may have been lost and the regulation may have reduced itself to a mere tool of oppression -- a hangover from quaint and superstitious days of yore."
e-mail: fredhiatt@washpost.com
