Sunday, June 12, is the 55th anniversary of the Supreme Court’s Loving decision, and there is fear in the land that Justice Alito and the Supreme Six will move on from potentially overturning Roe v. Wade to dismantling marriage rights. Those fears are overstated, but first let’s take a moment to remember the Loving case.
It may be hard to believe that as late as 1967 some states did not allow people of different races to marry. But so it was. Mildred Jeter, a black woman (though she also had Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti‐miscegenation statute, which dated to colonial times and had been reaffirmed in the Racial Integrity Act of 1924. The Lovings were indicted and pled guilty. They were sentenced to a year in jail; the state’s law didn’t just ban interracial marriage, it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:
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 marriages. The fact that he separated the races shows that he did not intend for the races to mix.
Five years later they filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously. Chief Justice Earl Warren wrote for 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. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.
The Loving case was a milestone in the progress toward a country that truly guarantees every citizen life, liberty, and the pursuit of happiness and equal protection of the laws. The story of the case has been told in a documentary, feature films, books, and many a law school symposium. And of course it played a key role four decades later in the legal recognition of same‐sex marriage.
Between 2008 and 2015, lawsuits over gay marriage entered the federal courts in several states. In 2011 prominent lawyers David Boies and Ted Olson, who were litigating a California case, spoke at the Cato Institute, joined by John Podesta, then president of the Center for American Progress, and Robert A. Levy, chairman of Cato. Podesta and Levy served as co‐chairs of the advisory committee of the American Foundation for Equal Rights, the nonprofit group that brought the Perry case. They wrote in the Washington Post in 2010:
Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law….
Over more than two centuries, minorities in America have gradually experienced greater freedom and been subjected to fewer discriminatory laws. But that process unfolded with great difficulty.
As the country evolved, the meaning of one small word — “all” — has evolved as well. Our nation’s Founders reaffirmed in the Declaration of Independence the self‐evident truth that “all Men are created equal,” and our Pledge of Allegiance concludes with the simple and definitive words “liberty and justice for all.” Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.
Thanks to the genius of our Framers, who separated power among three branches of government, our courts have been able to take the lead — standing up to enforce equal protection, as demanded by the Constitution — even when the executive and legislative branches, and often the public as well, were unwilling to confront wrongful discrimination.
In this newspaper column, Levy argued:
Whenever government imposes obligations or dispenses benefits, it may not “deny to any person within its jurisdiction the equal protection of the laws.” That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.
In the end the Supreme Court did find in 2015 that same‐sex couples have a right to marry, in the case of Obergefell v. Hodges. I rather wished the Court had made the parallel case of Love v. Beshear (or better yet Love v. Kentucky) the main case, so that the Loving decision could be followed by the Love decision.
Now many people are worried that if the Supreme Court does indeed overrule Roe, the rights to same-sex marriage, interracial marriage, homosexual activity, or even contraception could be threatened. I think that concern is overwrought. There are several important differences between abortion rights and marriage rights in particular. Most obviously, more people are deeply troubled by abortion than by two loving adults getting married. Second, in considering whether to overturn a precedent, courts consider the matter of reliance: have people ordered their lives and affairs on the basis of current law? As Walter Olson wrote in the Wall Street Journal, “Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more.” And the Court is not immune to public opinion. Americans have been sharply divided on the Roe decision for 49 years. But public support for same-sex marriage has risen rapidly, from 27 percent in 1996 to 60 percent in 2015, as Obergefell was decided, to 71 percent this year. For interracial marriage, support was still under 50 percent in the early 1990s, but it has now risen to 94 percent. Despite the revival of ugly antigay sentiment on the Republican right, the justices know that the country doesn’t want to reverse marriage equality.
Going forward, I believe we will continue to recognize both Loving and Obergefell as landmark decisions that extended liberty and justice—and the freedom to marry—to all. Today we celebrate the late Richard and Mildred Loving, and their lawyers, and the victory that they won for all Americans. These decisions are part of our continuing effort to extend the promises of the Declaration of Independence—life, liberty, and the pursuit of happiness—to people to whom they had long been denied.
