Summary:
Loving v. Virginia was a landmark 1967 Supreme Court case. Richard Perry Loving, a white man, and Mildred Dolores Jeter, a black woman, lived in Virginia but not could marry because of a state law against interracial marriage. Instead, they decided to leave the state and wed in Washington D.C. When they returned to live in Virginia, they were arrested for violating a state law that did not allow them to marry somewhere else and return to live in the state (Gillman, Graber, Whittington). They were sentenced to a year in prison but were allowed to leave the state for twenty-five years as a condition of not being convicted. They moved back to Washington D.C. and decided to contest the decision based on cruel and unusual punishment, the right to marriage, and the commerce clause. When the State court upheld the decision, they appealed to the Supreme Court. The NAACP Legal Defense Fund and the Japanese American Citizens League assisted with their appeal, insisting the Virginia court decision banning “interracial marriage violated the free exercise clause of the First Amendment and the due process right to have children…” (Gillman, Graber, Whittington). The Supreme Court unanimously ruled in favor of Loving in a 9-0 decision. Chief Justice Warren cited the equal protection clause and the fundamental right to marriage as being violated by the Virginia court in their decision.
Critique of the Case:
The case is part of a broad symbolic movement in the 1960s that is best embodied by the civil rights movement. After desegregation took root in the U.S. education system, it expanded to other institutions in a variety of social settings, including marriage. “Loving was part of the dismantling of segregation in the private sphere and followed the elimination of all other forms of legalized racial discrimination and segregation in the public sphere” (Daniel & Kelekay, 2017:646). Since allowing people with different racial backgrounds to wed was a desegregation of the institution of marriage, the case reinforced a more general movement inspired by the results of Brown v. Board in 1955. Symbolically the case was another token of that shift in the public sphere.
A theoretical approach the state of Virginia wanted the Supreme Court to consider was the position that banning interracial marriage equally discriminates against both races involved, not just one. In Warren’s opinion of the case, he reiterated Virginia’s interpretation of the equal protection clause, stating it meant: “Only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree” (Gillman, Graber, Whittington, 2021). Warren disagreed with their interpretation. He went at length to explain why the framers of the 14th Amendment had not intended for an interpretation based on equal discrimination, but to preserve fundamental rights in a non-discriminatory manner. That may be why the Warren court relied on a second constitutional claim in addition to the first: that all citizens have a due process right to marriage. By providing the example of a fundamental right, it strengthened their review of the case because all rights must be considered under Virginia’s argument. If whites and blacks had been equally discriminated against with other rights involved (i.e., free speech or the right to bear arms), it would have defeated the purpose of having those rights in the first place. The justices thought that just because you can equally discriminate against two people of different races does not mean they should be deprived of their right to marry.
The case had a major societal impact that reflected increasing racial equality moving forward from the 1960s. By allowing for bi-racial marriages and the procreation of mixed couples, it shifted the balance in favor of a “post-racial” society (Daniel & Kelekay, 2017:642). The election of Barrack Obama in 2008 symbolized the completion of this collective shift over a 40-year period, as he was the first president born from the married parents of two different races. However, there is a more modern contention to this shift. With all the efforts to delegitimize Barrack Obama’s citizenship, and the election of Donald Trump in 2016- famous for his reactionary stance against every Obama-era policy- the resistance may mean we are still in the process of aspiring to racial equality and not entirely there yet. Regardless of Obama’s presidency, the bi-racial baby boom of the 60s and 70s is evidence enough for me to believe that some type of societal shift occurred from the outcome of Loving.
The case changed the way Americans thought about liberty because prior to Loving it was not considered a constitutional right for members of different races to wed. Complicating the matter was the fact that Mildred Loving identified herself as both African American and Native American (Sears & Greenberg, 2018). Because Mildred was mixed-race, it became clear that society’s reaction to her skin color that was the real culprit and not her race itself. At the time, it was becoming increasingly difficult to label someone as being one race when they were the offspring of people from different races. The lines that defined race were blurring as globalization brought people from all parts of the globe closer together, mixing in ways that were unavoidable, even by legislation. Indeed, the entire desegregation movement (and civil rights, by extension) may not have been endorsed by Truman and Eisenhower if not for their desire for America to become more just in the eyes of their third world allies during the Cold War. These social and political trends expanded America’s view of liberty, summoning an expanded view of the constitution by Supreme Court justices. The case changed our perception of race in such a profound way that many of us can no longer easily call someone Black, White, Asian, etc. without taking into consideration the mixed ancestry of their lineage.
A shortcoming from the case is that the new rights for mixed-race couples could have been expanded even more to allow for same-sex marriages. “Those who challenge same-sex marriage prohibitions analogously maintain that states have unconstitutionally infringed the rights of those who seek to marry the person of their choice” (Turner, 2015). It wasn’t until Obergell v. Hodges in 2015 that same-sex marriages were made legal nationwide. Though the situations were not identical, I believe they should have been similar enough to merit such an extension. Their only distinction in my mind is that procreation is involved in Loving but not in Obergell; though if we are considering the right of same-sex couples to adopt, artificially inseminate, etc., there is hardly any distinction. Regardless, the right to marry for same-sex couples is as relevant to due process as it is for mixed-race couples (Turner, 2015). Also, the argument that tradition is legal grounds for discrimination, as suggested by opponents of both rulings, does not hold up very well in either case. What can’t be denied is that Loving set the stage for same-sex marriages to become federal law after Obergell. Former president Obama himself suggested that equal protection for every possible marriage was the logical follow-up to Loving (Turner, 2015).
Another thing I think the case could have addressed better is the distinction between religious and conservative values. In a previous case, Perez v. Sharp (1948), the bi-racial couple involved attended a church that would have had them married under oath but for a California state law against miscegenation. They argued the state law violated their freedom of religion, and I believe they were correct in bringing that charge. If a religion provides a service to a universal right that the government infringes upon, then consequently it also infringes on the right to practice that religion. (Isaiah Berlin might have pointed out that negative liberty has been violated). Cases like Loving are the reason I think many Christians identify with conservative values, because it was seen as an attack on their united front rather than a victory that expanded the rights of bi-racial couples who happen to be Christian. I did not find that the Lovings were religious, but if they were then I think it would have been good for society if they’d exposed freedom of worship as an aspect of denying two people a happy marriage.
Reflection:
I chose to write about this case because I am a white male married to a Thai woman who immigrated here legally. We would not have been as comfortable doing this if not for a Constitutional interpretation allowing interracial marriages. The Loving case allowed me and many others the universal right to pursue happiness by marrying whomever we want. My understanding of liberty in the Great Society era was greatly expanded by this important addition to the civil rights movement. Understanding how many racial freedoms were stimulated by the Brown v. Board decision is something anyone familiar with civil liberties should have. My perspective about society also changed because I have always taken for granted the mixed-race relationships in my family, and how easy it has been for me to date someone from another race. Clearly, it wasn’t always this easy to marry someone you truly loved in this country.
What made me angry about the case is how the Lovings had to move back and forth between Washington and their hometown just to be together. I do hope they were fairly compensated by the state of Virginia for their troubles. Similarly, I have often felt like the government has been unfairly burdening my wife and I through a rigorous immigration process that is way more complicated than it needs to be. And while our situations are not identical, my heart goes out to the Lovings, who were similarly impeded by an old-fashioned bureaucratic requirement as a provision for being in love.
The ruling inspired me to appreciate all the rights that people in our great nation have won through the years for future generations like mine. Most of my generation is unaware of the grueling historical process Americans have gone through to earn their rights. A case like Loving can really open your eyes to the idea that rights in a civilized society are rarely just given; they are earned through timeless struggles, hard-fought by people who suffered many defeats along the way, who nevertheless persisted. Whether it be worker rights, racial rights, or first amendment rights, most of them have a vicious story to tell, based on years of challenging institutionalized presumptions about race, class, or due process. Hopefully rights like interracial marriage will maintain their happy endings.
References:
Daniel, G. Reginald, Kelekay, Jasmine. 2017. From Loving v. Virginia to Barrack Obama: The Symbolic Tie that Binds. Creighton Law Review 50, 641-688
Gillman, H., Graber, M. A., & Whittington, K. E. (2021). American constitutionalism. Oxford University Press.
Sears, Leah Ward, Greenberg, Sasha N. 2018. The Love in Loving: Overcoming Artificial Race Barriers. Notre Dame Law Review Online, 94:1. Retrieved October 27, 2021 ("The Love in Loving: Overcoming Artificial Racial Barriers" by Justice Leah Ward Sears (Ret.) and Sasha N. Greenberg)
Turner, Ronald. 2015. Same-Sex Marriage and Loving v. Virginia: Analogy or Disanalogy? Washington & Lee Law Review Online, 71:4. Retrieved October 27, 2021 (https://scholarlycommons.law.wlu.edu/wlulr-online/vol71/iss4/4)
