Remember Loving

In 1958 Mildred Jeter and Richard Loving traveled from their home state of Virginia to the District Columbia to get married. Upon return, they were indicted by a grand jury for violating Virginia’s ban on interracial marriage. Mildred was black. Richard was white. The Commonwealth of Virginia had a big problem with that.

The trial judge sentenced Mildred and Richard to a year in jail, but he suspended the sentence on the condition that they not return to Virginia for 25 years. The trial judge’s opinion reasoned (I use that term loosely):

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend the races to mix.

The U.S. Supreme Court took the case, heard oral argument on April 10, 1967, and delivered a unanimous opinion holding the Virginia statutes unconstitutional on June 12 of that year. The Court’s opinion observed that 16 states currently had laws on the books prohibiting and punishing mixed-race marriages.

In Virginia, the law forbade any white person from marrying someone who wasn’t white. Purity of the white race was paramount. As far as Virginia was concerned, a non-white could marry any other non-white even though—in this sick analysis—it would de-purify those races. It was, quite simply, a White Supremacist regime.

The state issued citizens “certificates of racial composition,” which were kept by government registrars. Let that sink in. The state required citizens to have “certificates of racial composition.” At oral argument, Philip Hirschkop, the attorney for the Lovings, rightly observed that the anti-miscegenation* statutes “will reflect back to Nazi Germany and to the present South African situation.” But this was in America, 100 years after the Civil War. This was 13 years after Brown v. Board of Education held the segregation of schools to be unconstitutional.

The parallels between the anti-miscegenation statutes of old and the “defense of marriage” laws of today are unmistakable. Then, as now, the proponents of the discriminatory laws invoked their own religious beliefs and state autonomy over the regulation of marriage (i.e., “States’ Rights”). I am quite certain that the trial judge in Loving thought his view of what “God created” was self evidently true. Many Virginians must have believed it, too. That idea was, we can see, ludicrous. Loving stands as a warning against the arrogance it takes to deprive another person of the legal protections of marriage just because it’s obvious to one person what “God created.”

The Supreme Court in Loving v. Virginia held that the laws in question violated the Equal Protection Clause of the Fourteenth Amendment. The Court wrote: “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” But the Court rested its decision on more than just racial discrimination. The Court also held that the Virginia laws deprived the Lovings of liberty without due process of law, which itself is a violation of the Fourteenth Amendment. According to the Court, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

With the Supreme Court set to rule on the constitutionality of laws banning gay marriage, now is a good time to honor the courageous Lovings, their lawyers, and the Justices of the Supreme Court who in 1967 advanced our society with the aptly named Loving decision.