A native-born Rhode Islander, educated in Providence Public Schools, went to college in North Carolina and a political junkie and pessimistic optimist.

2 responses to “Is A Marriage Equality Referendum Legal, or Necessary?”

  1. Len Katzman

     
     
    Mr. Howard you suggest that, “we have to look at where marriage rests in law.” You then note its absence from the RI constitution and find it in our statutes. But there is a better legal source: the Supreme Court of the United States which has pronounced marriage to be a constitutionally protected civil right.
    This is not some sort of modern-day “activist” court action.  The U.S. Supreme Court has held that marriage is a “fundamental civil right” from a line of over a dozens cases dating back to the 1880s.
    Some examples: In 1888, in the case of Maynard v. Hill, for the first time in the history of the United States of America the Supreme Court used the word “right” in characterizing marriage. In 1942, in Skinner v. Oklahoma, the Supreme Court wrote of Oklahoma’s marriage statutes that, “We are dealing here with legislation which involves one of the basic civil rights of man.”
    And in 1967, in the case of Loving v. Virginia which challenged Virginia’s anti-miscegenation laws, the Supreme Court wrote, “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.” The Loving court went on to write that, “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.”
    Some argue marriage is exclusively about procreation, some say it is not a right but merely a contract, still others argue marriage is no more than a license privilege akin to a driver’s license. All these arguments have no basis in American constitutional jurisprudence. The understanding that marriage is a fundamental civil right is well-settled law. 
    Which brings us to LGBT marriage equality. Following Romer v. Evans and Lawrence v. Texas (I’m trying to stay out of the deep legal weeds here so if you’re interested you can google up these cases) and other cases following them, there is no constitutional basis upon which to deny the civil right of marriage to two people merely because of those persons’ sex. That the U.S. Supreme Court would say so in so many words is only a matter of time. Rhode Island legislators have the choice to be leaders in the realm of civil rights, or to be dragged along kicking and screaming like the southern states were in 1967 on the question of inter-racial marriage.
     

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