Gays and lesbians have always had the right to marry. That they choose not to marry is not a general concern.
Here are four of the arguments they used:
1) First, judges claimed that marriage belonged under the control of the states rather than the federal government.
2) Second, they began to define and label all interracial relationships (even longstanding, deeply committed ones) as illicit sex rather than marriage.
3) Third, they insisted that interracial marriage was contrary to God's will, and
4) Fourth, they declared, over and over again, that interracial marriage was somehow "unnatural."
On this fourth point--the supposed "unnaturality" of interracial marriage--judges formed a virtual chorus. Here, for example, is the declaration that the Supreme Court of Virginia used to invalidate a marriage between a black man and a white woman in 1878:
The purity of public morals," the court declared, "the moral and physical development of both racesÂ….require that they should be kept distinct and separateÂ… that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.
The fifth, and final, argument judges would use to justify miscegenation law was undoubtedly the most important; it used these claims that interracial marriage was unnatural and immoral to find a way around the Fourteenth Amendment's guarantee of "equal protection under the laws." How did judges do this? They insisted that because miscegenation laws punished both the black and white partners to an interracial marriage, they affected blacks and whites "equally." This argument, which is usually called the equal application claim, was hammered out in state supreme courts in the late 1870s, endorsed by the United States Supreme Court in 1882, and would be repeated by judges for the next 85 years.
