To limit freedom of marriage is an impulse felt by the worst of governments

Ellen J. Kennedy
Ellen J. Kennedy is executive director of World Without Genocide, based at William Mitchell College of Law in St. Paul.
Photo Courtesy of Ellen J. Kennedy

Ellen J. Kennedy is executive director of World Without Genocide at William Mitchell College of Law in St. Paul.

When the Nazis took over the German government in the 1930s, one of the first restrictions they enacted on the Jews was to limit whom they could and could not marry. Jews were not allowed to marry Aryans, people in the superior "master race" of Germans who were destined, so Nazi propaganda went, to rule the world. This was one of the so-called Nuremberg Laws, and we know too well the chilling and slippery slope that soon followed for the Jews: restrictions on work, education, owning radios or bicycles, and then forcible removal from homes into ghettos, removal from ghettoes to concentration camps, and then extermination.

How did this all happen? Where were the voices of protest, the clamors of outrage, the shouts demanding that the law treat everyone equally and fairly?

Most of the voices were never raised because the slippery slope happened almost imperceptibly and, at the same time, met with incredulity. Nobody believed that the successive steps would ever, ever happen. Nobody believed that the path from restricting marriage could end in taking millions of lives. People don't protest when they see an injustice that they think is pretty small and, perhaps, ultimately of no direct consequence to them. To limit whom one can marry, in the overall scheme of things, must have seemed fairly benign, and, to be honest, most Jews married other Jews and most Aryans married other Aryans.

But not all marriages happened that way, and not all love relationships happened that way. Jews fell in love with Aryans and were prohibited, by law, from marrying those whom they loved. Jews were considered to be less than human, labeled by the Nazis as vermin and lice, while Aryans were at the top of the human hierarchy in terms of goodness, purity and worthiness.

I'm certainly not suggesting that we might be heading down Germany's path in the 1930s. What I do suggest, however, is that we have to think about the difference between rights and privileges. German law limited people's rights to marry whom they wished. Marriage became a privilege for some, not a right that was open to anyone.

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The Universal Declaration of Human Rights, passed by the United Nations in 1948, states that marriage is a human right (Article 16.1). The International Covenant on Economic, Social and Cultural Rights, passed in 1976, also tells us that marriage is a basic human right. Neither document specifies that marriage is to be limited only to certain kinds of people.

What happens if we restrict marriage and don't allow certain people to marry? We risk finding ourselves on the slippery slope in which marriage is a privilege open to some and not to others. We don't know if, once we do begin to slide down that slope of privileging some people for some things, we can recover and get back to the top. What we do know, however, is that it's not easy to climb back up. We will have institutionalized practices that will have to be undone, attitudes that will have to be changed, laws that will have to be rewritten. It will take effort, leadership and a lot of voices and clamoring and protests.

Here in Minnesota we stigmatize people in the LGBT community in ways most of us cannot even imagine. We think only about marriage, because of the current referendum coming up for a vote on Nov. 6 that, if passed, will prohibit gays and lesbians from marrying those whom they love. But there is another issue, one that is deeply troubling because it suggests that we're on that slope and falling down rapidly.

In Minnesota, and in 47 other states (all except California and Oregon), people who identify as being part of the LGBT community can be dismissed from jury duty based on their sexual orientation. Lawyers are able to dismiss them using a "peremptory strike," which allows the lawyer to dismiss someone without having to state a reason. There have been court cases around the country in which prospective LGBT jurors have been unable to serve because lawyers kept them off due to their sexual identities.

This has implications on both sides of the issue. People on trial may not be heard by a jury that is truly "of their peers," and the opinions of those who should be on those juries are not becoming part of the legal and social framework of our communities.

The law is the single most potent force we have for justice — for ethical, moral, social, civic and human rights. This affects us all. Jury duty should be a right for us all, not a privilege open only to some.

We have to stay at the top of that slippery slope. Let's begin clamoring now, before we slide any further. We cannot continue to restrict rights — and we must bring back those, like the right to jury duty, that have been taken away.