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Exclusion from Marriage: Historical Parallels
by Evan Wolfson
© December 1999, Evan Wolfson


Over the years, the laws governing civil marriage — as distinguished from religious marriage, which is appropriately left to each denomination — have evolved. Americans increasingly recognize that each individual should have the right to marry the person she or he loves and cares for, regardless of race, class, religion and the like. But this has not always been the case; loving relationships some deemed “immoral” or “unnatural” historically were proscribed. Less than 30 years ago it was illegal for individuals of different races to marry. Before that, it was illegal for African-Americans to marry at all.

Today, the freedom to marry continues to be unavailable to same-sex couples. Through a landmark case underway in Hawaii, lesbians and gay men are on the verge on winning the freedom to marry, with all its implications. A victory in the case will open the door for same-sex couples around the country to share in the same benefits and responsibilities available to opposite-sex couples.

Just as every historic step toward inclusion triggers some backlash, the first wave of what is expected to be a major political battle has already begun. By mid-1995 — even before the equal right to marry in Hawaii has been won — radical-right state legislators have proposed anti-marriage legislation aimed at thwarting recognition of the lawful marriages of same-sex couples.

In South Dakota, legislation purporting to block recognition of same-sex couples’ marriages was defeated in 1995. The bill read:

“Be it enacted by the legislature of the State of South Dakota: Any marriage between persons of the same gender is null and void from the beginning.” (S.D. House Bill 1184)
It bore a disturbing resemblance to the Virginia law that prohibited marriages between people of different races:

“All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.” (Va. Code Ann. =A7 20-57)
Such miscegenation laws were common several decades ago.

Shortly after getting married in 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, were arrested for violating Virginia's miscegenation law (a felony) and faced up to five years in prison. A court upheld their conviction by relying on attitudes about “unnatural” relationships that are directly parallel to those that are today used against same-sex couples:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races show that he did not intend for the races to mix.”
As punishment for the “crime” of marrying the “wrong kind of person,” the trial judge forbade the couple from setting foot in their home state for 25 years! Their case, Loving v. Virginia, went to the U.S. Supreme Court, which in 1967 overturned the laws in sixteen states containing such “same-race restrictions” on people’s choice of a marriage partner.

As lesbian and gay couples around the country demand their freedom to marry, it should not be forgotten that the arguments used against same-sex marriages were once used, not long ago, against those who wished to marry a person of a different race. The freedom to marry, the right to a civil marriage license from the state, and the choice of whom to marry, should belong to each man and women, not the government.


© 1999, Evan Wolfson

Mr. Wolfson may be reached at evan@freedomtomarry.org
and the Freedom to Marry organization.
He is the former “Marriage Project” director for Lambda Legal
Defense and Education Fund
, and co-counsel in the Hawaii marriage case.


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