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Friday, May 16, 2008


"We loved each other and got married," Mildred Loving told The Washington Evening Star in 1965, when Loving v. Virginia was pending. Loving, who died last month, and her husband Richard were the interracial couple whose Supreme Court case overturned U.S. miscegenation laws.

"We are not marrying the state. The law should allow a person to marry anyone he wants."

Yesterday the supreme court of California agreed with the position Loving took towards the end of her life, declaring it unconstitutional to prevent same-sex couples from marrying in that state. The opinion declared that measures designed to discriminate against gays and lesbians should be as suspect as measures designed to discriminate against a racial group, or people of one sex. This should carry some weight, coming from a conservative court.

It will bring opposition. Representative democracies, like California and the United States, do not work by simple majority. The legislative, executive, and judicial branches of government work together to represent the people--a system designed to protect against abuses of power. In California, all three branches of government now agree that same-sex couples should not be prevented from marrying by the state.

Groups purporting to represent the majority--assuming that heterosexuals, who are the majority, automatically oppose the rights of gays to marry--will now try to keep this decision from coming into force. They will do so by ballot measures like those that have passed in many states. Conservative voices like The Wall Street Journal have already joined in, declaring this decision an example of judicial activism and associating it with Democrats. (In fact, the California supreme court was appointed almost entirely by Republicans, while neither Barack Obama nor Hillary Rodham Clinton supports same-sex marriage.)

Do not be fooled by these shibboleths. The judiciary is only one branch of California government, and all three agree. The legislature has already affirmed gay couples' rights, and the Republican governor, Arnold Schwarzenegger, has said he will not support changes to the constitution to block it. Ballot propositions are designed to force through, by simple majority, a "corrective" to decisions already made by our representatives in government.

Forty years ago, there is no doubt that a majority of Americans would have disapproved of "interracial" marriages. Even now, such couples are a clear minority, and have a hard time. But the Lovings should not have had to wait until most Americans were ready to accept their lifestyle. And Phyllis Lyon and Del Martin, who have been together for more than 50 years, should not have to try getting married again and again--in their 80s!--while people around them squabble about a lifestyle that, frankly, is not their concern.

That is why we have this system of checks and balances: to protect minorities against abuse by the majority.

Mildred Loving would be proud.