Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Sex, Race and Marriage Law

Keith Pavlischek


November 9, 1998

With media attention focused on analysis of such things as the election of Jesse "The Body" Ventura as Minnesota's governor and the effect of the "Lewinsky factor," you may have missed the big news—interracial marriages are no longer forbidden by the South Carolina state constitution. And in Alaska and Hawaii, citizens agreed that marriage was an institution involving a man and a woman.

The South Carolina constitution forbade the "marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood." Last Tuesday, South Carolinians removed that blight from their constitution. It took only 103 years.

Meanwhile, voters in Hawaii and Alaska thoroughly trounced attempts by activist judges to radically redefine marriage. Citizens of Alaska voted on a constitutional amendment reading, "To be valid or recognized in this State, a marriage may exist only between one man and one woman." In Hawaii the voters were asked, "Shall the constitution of the state of Hawaii be amended to specify that the Legislature shall have the power to reserve marriage to opposite-sex couples?" A "yes" vote, according to gay rights advocates was a vote for intolerance, hate-mongering, homophobia and other nasty things. Nearly seventy percent of the voters in each state voted yes, which tells us more about the overheated rhetoric of the gay-rights lobby than about the citizens of Alaska and Hawaii.

The advocates for same sex "marriage" especially hoped for a "no" vote in the state of Hawaii, which has a long progressive history of embracing interracial marriage. After working fervently to keep the question off the ballot in the first place, gay-rights advocates tried to draw a moral equivalency between racist laws like the one defeated in South Carolina and traditional "heterosexist" marriage (i.e., between a woman and a man). But Hawaiians didn't buy it, and for good reason.

Among the most basic tasks of government is to recognize that civil society consists of more than just autonomous individuals. Society includes non-state institutions and structures such as businesses, churches and most fundamentally marriages and families. For government to do public justice to those institutions it must first acknowledge that it does not create them, nor can it arbitrarily redefine what they are without causing grave injustice. But that is precisely what governments attempted to do in the old South and what the courts tried to do more recently in Alaska and Hawaii.

In the nineteenth and twentieth centuries state legislatures and courts in the South were prepared to deconstruct and redefine marriage in order to achieve racist goals. For them, race was everything. Similarly, the Supreme Courts of Hawaii and Alaska were also prepared to deconstruct and redefine marriage to advance their vision of social transformation. In Hawaii, the Supreme Court explicitly declared that the State "created" the institution of marriage and thus could redefine it to include persons of the same sex. For them, the only two players in civil society are autonomous, freely-contracting individuals and the state.

Just as the racists tried to redefine marriage for their purposes, thereby distorting its genuine meaning, the Alaskan and Hawaiian courts tried to do the same thing. In both cases the State attempted to redefine marriage to achieve its ideal of an improved society. Both were unjustly tampering with the most crucial pre-political society of all--the unique community of marriage, based upon the union of the two sexes. Public justice was served in three states on Tuesday. All governments should recognize the simple truth that marriage has nothing at all to do with skin pigmentation and is an institution involving a man and a woman.

—Keith J. Pavlischek, Fellor
   Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”