Kentucky ‘went there’

So far, most of the states arguing against marriage equality before the US Supreme Court have stuck with ordinary, if conservative, legal arguments. But Kentucky went retro, reviving an argument used by racists to argue for bans on interracial marriage. It will fail again.

Lawyers acting for Kentucky Governor Steve Beshear (D) filed a brief with the Supreme Court arguing many typical (and absurd) rightwing positions, such as that gay people are powerful, and so, don’t need a remedy from the Court, that they can possibly “change”, but then there was this shocking part:

“The Petitioners fail to address the fact that Kentucky’s marriage laws are not facially discriminatory to gays and lesbians based upon their sexual orientation. Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.”

That’s precisely the same argument that racists made to defend laws prohibiting interracial marriage: They said that such laws didn’t discriminate against anyone on account of race because both black people and white people were forbidden to marry someone of a different race. That argument failed in 1967 when the Supreme Court struck down all bans on interracial marriage in Loving v. Virginia, and the argument will fail again.

So far, no other state has attempted to revive the old racist argument in a new context, though plenty of rightwingers have used it when trying to come up with a non-religious argument against marriage equality. It may be non-religious, but it’s not rational—or true. On the bright side, Kentucky is unwittingly helping to make the case that the Court must strike down all remaining bans on marriage equality because they exist only because of anti-gay animus.

More than 50 years ago, a Virginia judge ruled that the Lovings were criminals, having committed the "crime" of interrracial marriage. Preaching from the bench, the judge said his 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 shows that he did not intend for the races to mix." The conviction was upheld on appeal, in part because whites and blacks were equally barred from interracial marriage, and that, in turn, was based on a Supreme Court ruling from 1883, Pace v. Alabama.

So, the argument used by Kentucky has it's roots in the extreme racism following the US Civil War, and kept alive right up until Loving v. Virginia. A half-century later, we cannot imagine any judge basing a ruling on such idiotic, racist ideas. 50 years from now, the anti-LGBT arguments like those made by Kentucky will be similarly unimaginable.

But the truth is, I never expected to see a state revive the discredited and rejected argument of racists as if it was ever legitimate. Kentucky has achieved a new low.