Overturning Same-Sex Marriage Bans: An End to ‘Segregation’?

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Virginia’s Attorney General Mark Herring (Photo Credit: Jay Paul/Getty Images)

“We recognize that same-sex marriage makes some people deeply uncomfortable,” writes Circuit Judge Henry F. Floyd in the Federal Court of Appeals 4th Circuits ruling on Virginia Voters ban on same-sex marriage. “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.” In overturning the ban and upholding the lower court’s ruling, Floyd next used language that’s becoming more and more common with the LGBTQ rights movement. “The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

The ruling emphasizes the “right to marry” as shown to be a legitimate historical precedence in U.S. court cases through references including cases dealing with prison inmates, those owing child support, and finally, interracial marriage. This comparison between the LGBTQ rights movement and the fight for equal rights for African Americans in the Civil Rights movement is hardly the first.

Back when Attorney General Eric H. Holder told state attorney generals that they need not defend their state’s same-sex marriage ban, he made the same comparison. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” he said, according to The New York Times, calling gay rights “the defining civil rights challenges of our time.”

The comparison is a valid one. People will understandably point out that the LGBTQ population makes up a smaller percentage of the population, that gay, lesbian, transgender, bisexual, and questioning individuals have hardly been enslaved for centuries, but bigotry, hate crimes, violence, and persecution have certainly been the experience of many in the LGBTQ community over a long history of mistreatment. Institutionalization, rape, willful neglect of targeted health issues (AIDS), and other such crimes make the LGBTQ population deserving of a civil rights spotlight of historic focus.