Sorry, this is not ‘Jim Crow’ – Mero Moment, 4/22/14

During the recent oral arguments before the 10th Circuit Court of Appeals regarding the marriage laws of Utah and Oklahoma, Judge Jerome Holmes, an African-American, entertained the plaintiffs’ comparison between prohibitions against marriages based on race and prohibitions based on same-sex relationships. Basically, he asked the defendants, “What’s the difference?”

Judge Holmes referred to a 1967 U.S. Supreme Court case addressing a Virginia law preventing a black woman and a white man from marrying. The Court overturned the state law and, in the process, described the fundamental right to marry under the law. Plaintiffs challenging Utah’s marriage law argue the same thing. They claim that two men or two women (or any consenting adults) have a fundamental right to marry, and the Loving case is Exhibit A to justify their claim.

Of course, the answer to Judge Holmes’ question and to the plaintiffs’ claim is that the Loving case was about racism, not marriage. Marriage has a specific definition that Loving did not change. Marriage is between a man and a woman. The Loving case was about marriage between a man and a woman. Once the Court conquered racism, it justifiably ruled in favor of the mixed-race couple.

But this whole analogy brings up the real question: Is there a legitimate argument in favor of same-sex marriage by equating racial civil rights and “gay rights”?

From the end of the Civil War until the passage of the Voting Rights Act in 1965, black Americans were subject to degrading and unjust “Jim Crow” laws that treated them as “separate but equal.” Here are some examples of how black Americans were treated under “Jim Crow” laws:

  • White female nurses were not allowed to treat black men
  • Bus stations were required to have separate waiting areas for whites and blacks
  • Railroad passenger cars were segregated
  • Restaurants had to have separate dining areas and entrances for whites and blacks
  • Cohabitation between the races was prohibited
  • Black children were separated from white children in public schools
  • Black and white public school children couldn’t even share the same textbooks – a textbook used first by a black child was forever to be used by black children
  • Public parks were segregated
  • Mixed housing was a crime
  • Not only were lunch counters segregated, so too were telephone booths


Thirty-three states operated with “Jim Crow” laws in place, including Utah, where interracial marriage was banned until 1967.

Individuals of all stripes can be unjustly persecuted and bullied and denied various aspects of social standing. The world can be a horrible place. But for plaintiffs looking to overturn Utah’s marriage law to equate their cause with the traditional civil rights movement is far-fetched.

Contrary to manipulative attempts to look like victims, as a group, gays and lesbians prosper economically and socially in the United States. The truth is that if they are separate as a group, they have self-selected to be different and apart from mainstream culture. They are replacing “separate but equal” with “proudly separate and entitled.” Nowhere in the United States, let alone Utah, are gays and lesbians subjected to Jim Crow-type laws.

When plaintiffs’ attorney Peggy Tomsic calls her case “the new civil rights movement,” she clearly hasn’t read her history books. Hopefully Judge Holmes, at the 10th Circuit, has.

For Sutherland Institute, I’m Paul Mero. Thanks for listening.

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

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