There is no dispute that this country has a LONG HISTORY of prejudice and bias that resulted in the unequal treatment of many classes of persons.
When Mr. and Mrs. Loving were convicted of the crime of entering into an interracial marriage and were forced to leave Virginia or face incarceration, the trial judge stated the following:
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
Loving v. Virginia, 388 U.S. 1 (1967)
The judge stated that prejudicial and discriminatory garbage (and justified it in God's name) at a point in time nearly a hundred years after the ratification of the Fourteenth Amendment.
The fact that our courts failed to effectuate the explicit language of the Fourteenth Amendment for a LONG TIME doesn't negate the Fourteenth Amendment or render it meaningless. Section 1 of the Fourteenth Amendment unambiguously states the following:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
As a nation, we have a reprehensible history of depriving persons of their rights guaranteed by the Constitution. We have a reprehensible history of depriving persons of equal protection of the laws. That history is dripping with the discrimination, prejudice, animus, and oppression of disfavored classes of persons. Despite the existence of explicit constitutional protection, members of disfavored classes of persons have often been afraid to step forward to assert their rights to be treated as equal members of society.
Rosa Parks wasn't the first black person to be arrested for refusing to give her seat on the bus to a white person. Others before her tried to stand up for their rights, but were met with resistance:
The Montgomery Bus Boycott officially started on December 1, 1955. That was the day when the blacks of Montgomery, Alabama, decided that they would boycott the city buses until they could sit anywhere they wanted, instead of being relegated to the back when a white boarded. It was not, however, the day that the movement to desegregate the buses started. . . . Perhaps the movement started on the day in the early 1950s when a black pastor named Vernon Johns tried to get other blacks to leave a bus in protest after he was forced to give up his seat to a white man, only to have them tell him, "You ought to knowed better."
After the bus boycott began, the blacks in the community were retaliated against with arrests, threats, beatings, and bombings.
When the city defended segregation by saying that integration would lead to violence, Judge Rives asked, "Is it fair to command one man to surrender his constitutional rights, if they are his constitutional rights, in order to prevent another man from committing a crime?"
Thomas, you believe that oppressed classes of persons ought to bide their time and wait to become equal members of society until such time as their majoritarian oppressors agree not to oppress them anymore. Perhaps, under your view, the blacks in the south would have eventually effectuated "social change" without the assistance of our courts to enforce the Constitution. But, what good is our beloved Constitution if it is just a god-damned piece of paper that holds empty promises? While some people might be complacent to wear the chains of oppression, others are not. The brave ones pave the way for others to follow.
What makes this country great is the fact that oppressed persons don't have to stand with their hats in their hands and plead like beggars to be treated with dignity and equality. They have the freedom and the right to petition the courts and to invoke the Fourteenth Amendment to put an end to state oppressions. Our 138 years of history since the ratification of the Fourteenth Amendment have demonstrated to the people that fighting for their civil rights and for equality within society isn't a futile act anymore. We no longer sit complacently at the proverbial back of the bus and proclaim to those who do fight for their rights, "You ought to knowed better."
Those who came before the homosexuals as a class of persons paved the way and developed our jurisprudence under the due process and equal protection clauses of the Fourteenth Amendment. Homosexuals are persons protected by the Constitution from state deprivations of their life, liberty, and property interests. Homosexuals are persons entitled to equal protection under the law. The Fourteenth Amendment is not a meaningless provision in a meaningless document.
With respect to this country's deplorable treatment of women (in their role as de facto slaves as the property of their husbands) throughout our history, the Supreme Court noted the following when it invalidated a state-imposed spousal notification law:
There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. State, 16 Wall. 130 (1873), three Members of this [505 U.S. 833, 897] Court reaffirmed the common law principle that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. Id., at 141 (Bradley, J., joined by Swayne and Field, JJ., concurring in judgment). Only one generation has passed since this Court observed that "woman is still regarded as the center of home and family life," with attendant "special responsibilities" that precluded full and independent legal status under the Constitution. Hoyt v. Florida, 368 U.S. 57, 62 (1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution. . . .
. . . Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family. These considerations confirm our conclusion that 3209 is invalid.
The Constitution protects all individuals (homosexuals included) from the abuse of government power. The fact that it has taken 138 years of feet-dragging history after the ratification of the Fourteenth Amendment to enforce constitutional limitations on state governmental powers does not require the courts to abstain from enforcing the Constitution and ridding this country of the evils the Constitution sought to prohibit.
Those persons who are morally against same-sex marriages, like the persons before them who were morally against racially-mixed marriages, have no right to demand action by the State which results in the denial of equal protection of the laws to other individuals. The state's power to create and enforce marital rights must be exercized within the boundaries defined by the Fourteenth Amendment.
See, e.g. SHELLEY V. KRAEMER , 334 U.S. 1 (1948) (The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. And it would appear beyond question that the power of the State to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth Amendment); LOVING v. VIRGINIA, 388 U.S. 1 (1967) (While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U.S. 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment).
"The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Lawrence v. Texas
It has always been said that we are a nation of laws, not of men. Our nation was founded on the concept of individual freedom and justice for all. We have a long history and tradition of oppressed groups coming forward to protest the infliction of state oppressions and to find redress of their grievances in our courts. Despite the fact that our courts have not effectively honored its duty in the past and allowed oppressions to take root, our constitutional values have eventually prevailed to unroot and prohibit those oppressions. We the people do not stand quietly and allow our rights to be subjected to the prejudicial or discriminatory whims of the electorate. Liberty depends on unfettered access to impartial courts to vindicate individual rights. Hamilton voiced this underlying principle of our constitutional republic during the ratification debates:
. . . For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.''
. . . The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Liberty, justice, and equal protection under the law are basic concepts that are not subject to the whims of majoritarian politics and elections. Rights protected by the Constitution against governmental usurpations must be vindicated by our courts. Thomas, your desire to leave the determination of the individual rights of disfavored minorities in the hands of majoritarian politics flies in the face of the constitutional values upon which this country was founded.
If the moral majority of persons in this country may deprive homosexuals of their fundamental rights and equality within society based solely on their prejudices and moral disapproval, and if homosexuals cannot seek redress in our courts of law, then this ain't America.