The last time Texas was in the minority on a marriage issue

Those who forget the lessons of history are likely to get an unfavorable SCOTUS ruling crammed down their throats.


As the U.S. Supreme Court takes up the issue of same-sex marriage, Texas once again finds itself on the lonely side of a court fight involving the right to marry.

Almost 50 years ago, Texas was among 16 states that still banned interracial marriage — until a unanimous Supreme Court struck down those laws for violating the Constitution’s promise of equal and fair treatment under the law.


With gay marriage legal in 36 states — 25 by court order, 11 via voters or legislators and Alabama still to be decided — the court has cover to act “because this is the way history is going,” said Sanford Levinson, a University of Texas law professor.

“But it’s not merely that. You look at the polls today, the cultural conservatives have simply lost. The younger the people are, the more they support (gay marriage), and the more obvious it is we live in a different country from the one we did only 15 years ago,” Levinson said.

The situation was a bit different in 1967, when the court ruled on the case of Richard and Mildred Loving, a white man and a black and American Indian woman who were given one-year prison sentences — suspended if they stayed out of Virginia for 25 years — for marrying.

At the time, polls showed most Americans opposed interracial marriage, but 14 states had repealed bans in the previous 20 years — a trend that reinforced the high court’s willingness to attack racial segregation under Chief Justice Earl Warren.

The Warren court’s decision in Loving v. Virginia not only voided a Texas law that punished “any white person and negro” who married with two to five years in prison, it continues to cast a long shadow over today’s fight over gay marriage.

When U.S. District Judge Orlando Garcia overturned the Texas ban on same-sex marriage last February, he quoted extensively from the Loving decision.

Same-sex couples, Garcia wrote, “seek to exercise the right to marry the partner of their choosing, just as the plaintiffs in Loving did, despite the state’s purported moral disdain for their choice of partner.”

And, just like laws banning interracial marriage, same-sex prohibitions subject gay couples to unequal and unfair treatment, he said.

Which the state totally, totally denies, because telling gay people who they can and cannot marry is completely different than telling black people (and white people!) who they can and cannot marry. It’s obvious, right? I’ve said multiple times that the state’s arguments all along have been bizarre and lame, and that continues to be true. Sometimes I wish I could fast-forward a couple of decades just to get a peek at what society will think about these stupid arguments we’re having now. On the one hand, the arc of public opinion is clear, and it’s easy to imagine that the America of, say, 2040 will have no idea what the fuss was about. On the other hand, I look at some of the issues that seemed to be settled forty and fifty years ago that are being re-fought now, and I wonder if anything is ever truly decided. But all in all, whatever our future selves this of us now, I know I’ll be happy to say what side I was on.

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