I won’t hide the ball here, so here it is: Gay people should not be able to get married because Pocahontas married John Rolfe.
This argument was actually made in federal court Tuesday, before the judges of the Court of Appeals for the 4th Circuit
in Richmond, Virginia. They were hearing a challenge to Virginia’s ban
on same-sex marriage. The argument is hands-down the worst argument ever
offered against same-sex marriage.
To be sure, it’s a crowded field in this dubious competition. The
history of same-sex marriage litigation is replete with offensive,
awful, nonsensical arguments from states trying to come up with
principled excuses for bigotry. For instance, just this week Kentucky
defended its ban on same-sex marriage by saying that denying gay people
the right to marry leads to more stable birth rates.
(Yes, you read that correctly.) And there’s long been the argument, put
forward without laughter, that banning same-sex marriage is necessary
because straight people can’t control themselves and thus need a
responsible way to raise all those children they will have as a result
of all that irresponsible sex they have.
But Tuesday’s Pocahontas argument takes the cake. Let me explain.
One of the many issues in same-sex marriage litigation is whether
bans on same-sex marriage violate a person’s constitutional right to
marry. Many Supreme Court cases have said there is a fundamental right
to marry, so the argument is straightforward that bans on same-sex
marriage infringe on that right.
In response, some states try to refute this argument by asserting
that there is no general right to marry, but rather there is only a
right to marry someone of the opposite sex. They argue that this more
narrowly defined right is what is protected by court precedent and by
our country’s history and tradition. Same-sex marriage advocates usually
respond to that argument by asserting that you can’t define fundamental
rights so narrowly. If you did, there wouldn’t have been a fundamental
right to marry in Loving v. Virginia, the 1967 Supreme Court case that found Virginia could not prohibit interracial marriage. In Loving,
the court held that the Constitution protects a fundamental right to
marry. As same-sex marriage advocates point out, the court did not
require the Lovings to show that there was a long tradition in our
country of protecting a fundamental right of a white man to marry a
black woman. If it had required such a showing, they couldn’t have done
so, given our country’s racist history of banning interracial marriage.
That brings us to Tuesday’s argument. David Oakley was the attorney
representing the local court clerk who denied the plaintiffs a marriage
license. He was closing up his argument making this exact point—that
there is no deeply rooted tradition in our country of protecting the
specific right to same-sex marriage. When he made this point, Judge
Roger Gregory jumped in and very sternly said “Same thing was true in Loving. Nobody would have considered interracial marriages in Virginia in the 1920s/30s [to be deeply rooted].”
Which is when Oakley shocked everyone with this horrendous Pocahontas
argument. He responded, in full: “There is a history, prior to the Jim
Crow era laws, the anti-miscegenation laws. The idea of interracial
marriage was not prohibited. It still fit within the fundamental right
of marriage, the idea of a man-woman marriage. Before Virginia passed
those affirmative anti-miscegenation laws, it might not have been the
social norm, but people certainly could have married, and indeed did
marry, across racial lines. Pocahontas married John Rolfe in the early
1600s and their marriage wasn’t declared unconstitutional.” (You can
listen for yourself here, starting at 12:25.)
To his credit, Oakley did get the last sentence right. Pocahontas did
marry John Rolfe on April 5, 1614, almost exactly 400 years ago, and
indeed, their marriage was never declared unconstitutional. But beyond
the basic factual accuracy of that sentence, Oakley was speaking
nonsense. And for so many reasons. After reading this article, you can
play a game at home coming up with your own reasons, but here are five
that immediately jump out:
1) The argument is legally illogical: No one
anywhere, not even the most anti-gay bigot, has claimed that any
particular marriages are unconstitutional. Rather, the issue in any
marriage case (including Loving) is whether a state violates
the Constitution by restricting who can enter a marriage based on race,
sex, or sexual orientation. The idea of an individual marriage being
declared unconstitutional makes zero sense.
2) It is absurdly a-historic: Pocahontas married
John Rolfe in 1614. The Constitution wasn’t ratified until 1789. The
Bill of Rights wasn’t included in the Constitution until 1791. The 14th
Amendment didn’t become a part of the Constitution until 1865. To draw
the obvious connection here, even if marriages could be declared
unconstitutional (they can’t, see No. 1), there was no Constitution in
1614 and wouldn’t be for another 175 years. Add on that the basis of
these same-sex marriage cases is the 14th Amendment, and the
relevant constitutional provision regarding the constitutionality of
marriage didn’t even exist until 251 years after Pocahontas’ nuptials.
3) It is completely irrelevant: What happened in
1614, when the United States of America didn’t exist, is irrelevant to
whether there is a history or tradition in our country of interracial
marriage. Soon after the Pocahontas wedding, there was very much a
tradition of banning interracial marriage. Play around with the map on the Loving Day website for a minute and you can see that tradition growing and growing throughout our country’s history. In fact, in 1865, when the 14th
Amendment was ratified, 32 states banned interracial marriage compared
to only 11 states that allowed it. Whether Pocahontas married a white
person in 1614 is wholly irrelevant to this clear history.
4) It is even more irrelevant still: If the basis of
the clerk’s argument is that there has to be a tradition of protecting
the specific type of marriage being sought, then the only way Loving
is correct is if there is a specific tradition of protecting the
marriage between a white person and a black person (or, even more
specifically, a white man and a black woman). Pocahontas’ marrying John
Rolfe is simply irrelevant to that inquiry.
5) It ignores Virginia’s unique history: Maryland
was the first colony to ban interracial marriage between white people
and slaves, but Virginia was the first colony to ban interracial
marriage between all white people and all black people (free or slave). It did so in 1691.
1691! And that Virginia ban stayed on the books in one form or another
until it was struck down by the Supreme Court in 1967. Over the decades
and centuries, almost the entire country joined Virginia, but Virginia
had the dubious distinction of being the first. At the time of Loving,
Virginia’s history of banning the exact marriage at issue in that
case—between a white man and black woman—was the very definition of a
deeply rooted tradition.
I have yet to hear a logically sound and legally relevant argument
against same-sex marriage. But even amid this cornucopia of bad ones,
the Pocahontas argument before the 4th Circuit this week has the distinct honor of being the worst ever.
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