Yesterday was the 40th anniversary of the Loving vs. Virginia US Supreme Court decision to strike down the bans against interracial marriage that in 1967 where still in the books of 16 states.

Just to put matters into perspective, I am biracial (even though both my parents are from Puerto Rico). They married in New York City, so the issue of their interracial marriage was moot. Had they been in Maryland or Florida, they technically could have ended up in jail --but maybe not if they could prove even if they were US citizens by birth (all Puerto Ricans are), the 'being Puerto Rican' may have then exempted them from the law.

Anyhow, it is amazing to see over at Loving Day's legal map that Florida had even codified the 1/8 drop rule into the marriage ban --exactly because the ban was about protecting the supremacy of a group of people who, if you look real close, have always been the minority (with the most wealth and political power) in this country. All the white-looking octaroons (at least at that time) need not apply for enjoying the perks of their physical (yet not genetic) whiteness.

So it's 40 years later and the same-sex marriage movement is using Loving vs. Virginia as the standard for all people who want to marry, be fruitful and multiply.

Here's the money quote from Justice Warren's decision :

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

[...]

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These convictions must be reversed.

This decision is so brilliant in it's upholding of choice I can't even begin to heap enough praise upon it. I just wanted two points --on of contention and the other of agreement-- that I have with the framers of the same-sex marriage movement.

I can't tell this enough times, but here it goes : Being discriminated for being gay is not the same as being discriminated for not being the picture of perfect 'white supremacy'.

Take the case of the all the outed and out white gay men in the Republican party.

It would seem counterintuitive for any gay man (or woman) to vote for Bush and the GOP platform that wants to so desperately push for the Defense of Marriage Act. But there they are at BlogActive, a growing roster of self-hating closeted gay men and women --all white, by the way-- who can easily 'pass' as straight and acceptable to the GOP establishment if they speak (and vote) the right homophobic way.

Look no further than Mary Cheney.

On the other hand, a black person can't peel their skin to pass as white. They can become 'clean' and acceptable almost-white people, but they'll always be black people playing at being white. And their standard of living will almost invariably be lower than the average white persons --unless, of course, you're a privileged black somebody like Oprah or Dick Parsons.

So I honestly feel it's counterintuitive for gay folks to say that homophobia is the same as racism. As Justice Warren explicitly says in the decision, what was at play in the ban against interracial marriage was the desire to codify into law the right to white supremacy, not to ban miscegenation.

Some may say that marriage as it stands now codifies heterosexual supremacy. The question is, where in the Western legal tradition has it not been like that? It's not an excuse for the Defense of Marriage Act, but marriage has been historically a legal agreement between a man and a woman as a means to protecting their property (and their children, who almost invariably are treated by the law as property).

So what makes Loving vs. Virginia so beautiful? The use of the phrase The Freedom of Choice :

The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Even though the 14th Amendment was intended to secure equal rights to former slaves after abolition, the way the Warren Court interpreted the amendment obviously gave way to the other more famous decision involving the freedom of choice, Roe vs. Wade.

For the Warren court what was at stake was not just the private decision of two citizens to marry. What was at stake was their equal right to choose to marry under the law. What the Warren court pointed to was how important it was for the United States government to use the Constitution to protect it's citizens right to free will.

It was both the idea that the government could not pick and choose which individual rights to respect along with the idea if need be, the federal government could enforce equal protection rulings against the states in order to make ensure that "all men are created equal" under the law.

Of course, we need now to make sure that "all men" is rewritten to "all people".

Loving vs. Virginia was about freedom of choice as much as it was for Roe vs. Wade. Somewhere down the line this country lost its respect for individual freedom and choice. The culture has invariably moved towards defining choice as a function of the state --especially when it comes to the freedom to choose to not just marry and have children, but the freedom to choose how to raise them and educate them.

Somewhere down the mangle of history, we lost as a society our will to free will. Revisiting the history of Loving vs. Virginia is a fantastic way to remind us that : That no man or woman shall be denied the right to choose who to marry, the right to choose who to procreate with, the right to choose when to do so and, ultimately, the right to choose how to raise and grown and make happy their families as the free citizens of this, the democracy we call the United States.