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Published on April 7th, 2013


Gay Marriage Should be Treated like Polygamous Marriage Not Interracial Marriage

Today my inbox has been filled with shouts of victory in the fight for what many have labeled a “civil rights” issue.  But, I do not join with the shouts of joy that somehow seem to say that “marrying a Black woman is no different than marrying a man.”

I find such an analogy to be an insult to me as an African American and an insult to me as a lawyer.

Many proponents of same sex marriage would have the public believe that Loving v. Virginia was the first case in which the US Supreme Court had to decide whether or not personal beliefs on the issue of sexual freedom and marriage could be regulated by the States.  The proponents of same-sex marriage are intentionally deceiving the public.

In 1890, just twelve years after the passage of the 14th Amendment, proponents argued that an Amendment to the Constitution granted US citizens the freedom to define marriage according to their own personal sexual beliefs and practices.

The Court in Davis v. Beason, 133 US 333, 343 (1890) (“Beason”) responded to the notion of the redefinition of marriage based on sexual freedom by stating:

“There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes as prompted by the passions of its members.  . . Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretence (sic) that, as religious beliefs, their supporters could be protected in their exercise by the Constitution of the United States.”

At issue in Beason was whether a man’s expressed love and marriage to more than one woman could be afforded less stature under law than those afford to those who expressed love and marriage to only one woman.

Beason centered on one of the most fundamental freedoms in the history of the United States.  Courts have protected the rights of men to freely practice religion when courts would not protect the right of Black men to be free.  In 1815 the notion of freedom of religion allowed Blacks to successfully fight in court to create a new denomination, the African Methodist Episcopal Church, for free worship in Pennsylvania by both free and enslaved Blacks.

The Supreme Court in Beason recognized that men could, and, if allowed, would use anything, including religion to justify “promiscuous intercourse of the sexes.”

Now, those seeking to redefine marriage and to advocate “promiscuous intercourse of the sexes,” attempt to rely on the Equal Protection clause afforded by the 14thAmendment to the US Constitution, as expressed in Loving v. Virginia, 388 U.S. 1 (1967) (“Loving”).

Loving made all laws unconstitutional which sought to prohibit marriage based solely on “invidious racial discriminations.”

Those arguing before the US Supreme Court to redefine marriage and to advocate “promiscuous intercourse of the sexes,” would simply have the Court to substitute the word “racial” for “homophobic” in the Loving decision.

But to equate race with sexuality would require the assumption that race and sexuality have ever been afforded the same protection or proscriptions in law, society, or nature.

There is no doubt that race is determined solely on the basis of the chance of parentage. A child’s race is determined at conception.  The race of the skeletal remains of those long dead can be determined through simple scientific DNA tests.

The first laws against miscegenation (interracial marriage) were created in the United States in 1691 and 1692, in the states of Virginia and Maryland, respectively, to expressly prohibit free blacks from marrying whites.  These were the first laws to ban marriage based on race and not on servitude in order prevent claims of inheritance by Blacks against “innocent” whites who may have shared the same common “per stirpes” lineage.

Several anti-miscegenation amendments have even been proposed to the US Constitution.  The most infamous of the anti-miscegenation amendments was proposed by Representative Seaborn Roddenberry (D) in 1912 to forbid interracial marriages nationwide. Similar amendments were proposed by Congressman Andrew King (D) in 1871 and by Senator Coleman Blease (D) in 1928. None were passed by Congress.

On the other hand, homosexuality has long been equated with sodomy, polygamy, and adultery.  In 1778, Thomas Jefferson wrote:

“Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished.”

–A Bill for Proportioning Crimes and Punishments, Amendment VIII Papers 2:492–504

As the Court noted in Beason:

Few crimes are more pernicious to the best interests of society.

–  133 U.S. at 341

While freedom of religion is the very cornerstone of American freedoms, the 14thAmendment is the very cornerstone of racial harmony in the US. Neither the 1stAmendment nor the 14th Amendment should be used to redefine marriage and to advocate “promiscuous intercourse of the sexes.”

Even today, in states which have legalized same-sex marriages, there are laws that prohibit certain redefinitions of marriage based on the philosophy espoused in Beason.  Polygamy is still illegal in all fifty states.  So if words are to be substituted in connection with a Supreme Court case to determine this country’s stance on marriage, then the term “sodomy” should replace the term “polygamy” in Beason.

If we read Beason in light of the term “sodomy” substituted for the term “polygamy”, and we afford the same value to the 14th Amendment as to the 1st Amendment, the issue of equal protection of same sex marriages under the US Constitution has already been decided as follows:

It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.

— 133 US 333 at 342

For those who see the issue as an insult to the civil right legacy that began in the pulpits, Synagogues, temples, and mosques of the United States, remind those who support the redefinition of marriage, that marrying a Black woman is not just like marrying a man.


About the Author: R. Nachael Howell Foster, a graduate of the George Washington University Law School and Duke University, is a licensed practicing corporate attorney.  When she is not advising small to medium size businesses on matters ranging from intellectual property, she writes and lectures on the value of law to all aspects of Americans lives.  Nachael has three daughters and three dogs, so Nachael’s World is always fun, straight-forward, and informative.  You can read more about R. Nachael Howell Foster at

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