The most disappointing moment of the 2008 campaign for me came when Joe Biden said that he and Barack Obama did not support the right of homosexuals to marry (it was even more disappointing than Obama's vote on the FISA bill). It can only be seen as ironic that in an election when the American people decided to elect an African-American to the highest office in the land, the voters in four states decided to deny homosexuals the right to get married. In California, even more ironically, African-Americans voted overwhelmingly for the ban. I am positive that neither Barack Obama nor Joe Biden are opposed to homosexual marriage, but in order not to ruffle the feathers of the country, they took the more popular public stance.This battle is very reminiscent of the bans against interracial marriage which were eventually struck down by the Supreme Court. In the case of Loving v. Virginia, the Supreme Court stated:
"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. 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." (Just as a side note, Alabama had retained their law against interracial marriage on the books until 2000)
According to the Supreme Court, marriage is one of the "basic civil rights of man". However the bans against homosexuals marrying have been upheld in various court challenges. The highest court in New York basically said that the homosexuals cannot be given the same protection under the law because discrimination against them hasn't been recognized until the recent past.
The New York Court of Appeals held in 2006:
"[T]he historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries...This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s... It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude."
I do believe that in time this will become a non-issue. It's just a shame that the American people always seem to have to be dragged kicking and screaming into giving oppressed minorities equal protection under the law. The Supreme Court has usually has had to take the first step and I do have hopes that over the next 8 years, the Court will address this issue and lay it to rest once and for all. Here is what Barack Obama said in his now famous Keynote Address at the 2004 Democratic convention:















