Gay marriage ruling has roots in landmark race-based case
By Stephen Magagnini - smagagnini@sacbee.com
Published 12:00 am PDT Tuesday, May 20, 2008


The California Supreme Court's historic ruling legalizing gay marriage has its roots in the case of a Mexican American woman who 60 years ago fought for the right to marry an African American man.

Andrea Perez and Sylvester Davis were denied a marriage license in Los Angeles County because state law at the time banned interracial unions.

So Perez took her case to the California Supreme Court. In October 1948 judges struck down California's anti-miscegenation law, which had stated: "All marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void."

Last Thursday, state Chief Justice Ron George, in his majority opinion, cited "this court's landmark decision 60 years ago" in the Perez case, which upheld "the fundamental constitutional right to marry" regardless of race.

George noted that the court didn't just strike down laws against interracial marriage that had existed since statehood. The Perez decision focused on "the importance to an individual of the freedom 'to join in marriage with the person of one's choice.' "

Kevin Johnson, dean of the UC Davis Law School, who is himself of mixed race, said he's fascinated by George's reliance on the Perez case.

"My mom is Mexican American and my dad's Anglo," said Johnson, 49, recalling that his Anglo grandfather had disapproved of his parents' union.

He said it's assumed the issue in the Perez case was all about race. But Perez had identified herself as white, to Davis' chagrin.

Perez and Davis were Catholic, Johnson said, and in their claim they had argued religious freedom rather than equal protection under the law.

"Their Catholicism was being infringed because they were denied a wedding Mass," Johnson said. "But in the end the California Supreme Court struck down the entire statute."

The court wrote that legislation infringing on the fundamental right to marry "had to be based on more than prejudice and to be free from oppressive discrimination."

The California Supreme Court ruled in favor of Perez 30 years before the U.S. Supreme Court struck down anti-miscegenation laws nationwide. In 1967 the U.S. high court ruled in favor of Mildred Loving, who was black and American Indian, and her white husband, Richard. They had been arrested and sentenced to a year in prison in Virginia.

"Some people might say California was ahead of its time, and some might say California's ahead of its time now," said Johnson. "In Perez there's a very frank discussion of the importance of marriage to individual identity and that's the kind of sentiment you see in Chief Justice George's opinion on the importance and sanctity of marriage."

Everett Rice of the California Family Council, which supports a November ballot measure forbidding same-sex marriages, said the court majority relied wrongly on the Perez case.

"There's no question they're still referring in the Perez case to one man marrying one woman. It did not change the definition of marriage, and George does change the definition."

But George relied on Perez to find "you can't just define marriage by tradition," said McGeorge School of Law professor Brian Landsberg. "In Perez, the traditional marriage was not thought of as being interracial. So that leads him to define the fundamental right to marriage not as a fundamental right to heterosexual marriage, but just a fundamental right to marriage."

Landsberg added that George refers to Perez in declaring that before a state can outlaw marriage between one group and another, "it has to show some compelling reason why, and he couldn't find any."

The Perez case resonates with two plaintiffs in the gay marriage case: San Francisco lawyer John Lewis and his fiancé, Stuart Gaffney.

Gaffney's Chinese American mother and Anglo father wouldn't have been able to marry in California if not for Perez, Lewis said. "In the 1950s, a national poll showed overwhelming opposition to interracial couples marrying. The court standing up for the freedom to marry enabled millions of interracial couples nationwide to marry."

By 2006, there were nearly 2.3 million interracial marriages nationwide, up from 651,000 in 1980, according to U.S census figures.

Gaffney said his mother, Estelle Lau, told him of the time when one of her friends in the Chinese Students Club at UC Berkeley "had to leave the state to get married because her husband was white."

"Luckily, my parents met and fell in love after the Perez(decision)," Gaffney said, noting that when they moved to Missouri, "their marriage was null and void in that state until 1960."

Gaffney said his parents celebrated last week's legalization of gay marriage. So did Amos and Mary Freeman of Sacramento. He's African American and she's Japanese American.

"I'm strongly in favor of the court's decision," said Amos Freeman, 76. "It shouldn't have even gotten to that point – our whole country's moving forward."

Mary Freeman recalls that when she and Amos married in 1974, they met resistance. She had been married before, and the mother of her late husband, a Japanese American, "didn't want anything to do with me."

Walter Kawamoto believes that, as with interracial marriages, legal gay unions affirm basic rights. Kawamoto is a community college professor and an active member of the Florin chapter of the Japanese American Citizens League.

The group has long championed the rights of mixed-race Americans "and the idea of people being able to marry those they love," Kawamoto said. "My dad's Japanese, my mom is Mexican and my wife is part American Indian, so we've got most of the continents."

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