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Commentary: How marriage became a federal issue

This article first appeared in the St. Louis Beacon, Aug. 16, 2010 - Under the separation of powers of the U.S. Constitution, activities not enumerated fall to the purview of the states. Such it has been with the jurisdiction of family law. Each state has enacted laws governing marriage, adoption, and sexual activity.

These laws historically have prohibited as well as permitted various actions. For example, Missouri allows those 18 and older to marry. If a prospective spouse is between 15 and 17, parental consent is required. If a party is under 15, judicial approval is required. Similar requirements exist for the marriage of first cousins. Missouri and 25 other states prohibit such marriage.

These types of laws are not under challenge today. If they were, state courts would be the likely site for any adjudication.

Although a majority of states, by legislation or referendum, decree that marriage is only to be between a man and a woman, a California case questioned the legality of prohibiting same-sex marriage. This case was heard in a federal district court. Federal courts may assume jurisdiction if it is felt that constitutional questions are at issue. The final arbiter may be the U.S. Supreme Court.

Taking such cases into the federal system has precedent. In June 1958, Virginia residents Mildred Jeter and Richard Loving married in Washington, D.C. Because Jeter was African-American and Loving was white, they could not legally marry in Virginia and were indicted and convicted for violating that state's ban on interracial marriages.

On June 12, 1967, the U.S. Supreme Court unanimously ruled in Loving v Virginia that distinctions by race were not legal. The Equal Protection Clause of the 14th Amendment would allow for interracial marriage. In addition to Virginia, 15 states -- including Missouri -- then had anti-miscegenation laws. In Missouri, statutes prohibited marriage between whites and blacks, and whites and Asians. Today, intermarriage across racial lines is common. About 14 percent of all marriages cross such lines.

Throughout recorded history, relationships have occurred between members of the same sex. Except for the Greeks who idolized this special form of love, such relationships have been condemned as immoral and and have been outlawed. In the first half of the 20th century, gay men and lesbians largely lived under cover, fearing for their livelihood, their privacy and their safety. A movement to assert gay civil rights began after the June 28, 1969, Stonewall police raid in New York City. In 1970, gay pride marches began to take place, which are now common yearly occurrences and civil rights organizations manifested themselves.

Until 1961, all states outlawed sodomy, i.e., sex between members of the same sex. Gay activists moved for laws permitting sexual activity between consenting adults, and California adopted such a law in 1975. But, many states had not. The Supreme Court case of Bowers v Hardwick, from Georgia, started after Michael Hardwick was arrested for having consensual sex with another adult male in the bedroom of his home. In a 5-4 decision in 1968, the court upheld the Georgia law, holding that such conduct was not covered by the due process clause of the 14th amendment.

In 2003, the high court reversed itself. In a 6-3 vote in Lawrence v Texas, the court struck down state sodomy laws and asserted the conduct to be an exercise of liberty under the due process clause. By this time, gays and lesbians had become a more visible part of the national fabric although many, frequently on the right, still wished to limit their employment or other rights.

The leap from fighting anti-sodomy laws to recognized partnerships or civil unions to legal marriage has been a relatively quick one. In 2008, California voters adopted Proposition 8, which overturned a state Supreme Court ruling that recognized same sex marriage. Gays challenged the legality of the proposition and chose a federal court for the challenge, basing their argument on the Equal Protection Clause of the 14th amendment, the same clause used by the Supreme Court to outlaw anti-miscegenation laws in 1967.

In Perry v Schwarzenegger, a California federal district judge echoed this sentiment in his ruling. This decision will no doubt go to the federal appeals court and perhaps on to the Supreme Court. Whether gender carries the same weight as race under the Equal Protection Clause has yet to be finally determined.

The 14th amendment has made it possible for cases involving crossracial as well as gender marriage to move to the federal court systems. States can set rules for family law but they can be challenged under grounds of discrimination and denial of equal protection under the law. Without the 14th amendment, family law may have continued to reside unquestioned in the 50 states.

Lana Stein is a professor emerita of political science at the University of Missouri at St. Louis.