You May Have Just Missed the Worst Argument Ever Made in the Fight to Ban Gay Marriage

The law, lawyers, and the court.
May 16 2014 11:19 AM

The Worst Argument Ever Made Against Gay Marriage

And that’s saying something.

140516_JURIS_PocahontasJohnSmith
Lithograph depicting Pocahontas saving the life of Capt. John Smith.

Image courtesy Library of Congress

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.

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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 1868.* 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 254 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 1868, 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.

Correction, May 16, 2014: This article originally stated that the 14th Amendment was ratified in 1865. It was ratified in 1868. (Return.)

David S. Cohen, associate professor at the Drexel University Thomas R. Kline School of Law, is co-author of a forthcoming book about anti-abortion terrorism and was co-counsel for plaintiffs in Ballen v. Corbett. Follow him on Twitter.

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