The road to Loving v. Virginia
I enjoyed reading all the reflections on Loving v. Virginia last week to celebrate the 50th anniversary of the unanimous Supreme Court decision striking down anti-miscegenation laws. Thanks, Warren Court, for allowing my children to exist!
Reading Loving in 2017, you get a sense of déjà vu. Two years ago, we heard exactly the same arguments in Obergefell v. Hodges, the landmark Supreme Court case that found gay marriage bans unconstitutional. Indeed, the NAACP’s amicus brief in Obergefell is an extended argument that the case is basically identical to Loving.
Like Obergefell and many other civil rights cases that forced America to change discriminatory practices, Loving was the result of a decades-long effort by social activists. The ACLU, assisted by the NAACP, led a state-by-state campaign starting in the 1940s to challenge anti-miscegenation laws. After successfully challenging California’s law, the ACLU and its collaborators turned to the Supreme Court and eventually to Loving.
Perez v. Sharp, 1948
The first big victory in 1940s-era marriage equality came in 1948, when the Supreme Court of California decided in Perez v. Sharp that California’s anti-miscegenation law was unconstitutional under the 14th Amendment. The Court’s opinion sounds strikingly modern when read today. It questions the construction of race — who is a mulatto, and who gets to make that decision? It even addresses the old “won’t someone think of the children” argument. The Court says that if the progeny of mixed marriages are stigmatized, “the fault lies not with their parents, but with the prejudices in the community and the laws that perpetuate those prejudices by giving legal force to the belief that certain races are inferior.”
Before Perez, 30 states had anti-miscegenation laws on the books. The ACLU’s online map, “The Leadup to Loving,” shows that in the wake of Perez, between 1948 and the Loving opinion in 1967, 14 of those states repealed their laws.
In 1948, the California Supreme Court ruled in Perez v. Sharp that California’s anti-miscegenation statute violated the…www.aclu.org
Jackson v. Alabama, 1954
The constitutionality of race-based marriage bans could have come before the Supreme Court six years later, in 1954. By a 5-4 majority, the justices voted to deny cert (meaning that they declined to hear the case) in Jackson v. Alabama. Their denial had the result of upholding the conviction of Linnie Jackson, a black Alabama woman who had married a white man.
The timing of Jackson was unfortunate. The Court had issued its opinion in Brown v. Board of Education earlier that year. One Supreme Court clerk wrote a memo advising the justices to avoid the topic of interracial marriage until public consternation over school desegregation had died down. According to legal scholar Peter Wallenstein, the justices’ papers reveal that most of them agreed; they were not eager to fan the flames after Brown.
McLaughlin v. Florida, 1964 (and Pace v. Alabama, 1883)
Intimate interracial relationships would not find their way back to the Supreme Court for another ten years. Dewey McLaughlin and Connie Hoffman were indicted under Florida law after living together for several weeks. The NAACP made the argument that this case was about marriage; the couple only lived together because they were legally banned from marrying. But the Supreme Court didn’t take the bait.
Instead, the Court took the opportunity to overturn Pace v. Alabama. Decided in 1883, Pace handily dispatched the matter of anti-miscegenation laws in three paragraphs. It declared that Alabama’s law forbidding whites and negroes from “living together in adultery or fornication” was not discriminatory, as it applied to both races equally. The Pace decision seems designed to reassure states that the relatively new 14th Amendment, ratified in 1868, would not extend to sexual or marital relationships.
While McLaughlin may have been a disappointment to the NAACP for skirting the issue of marriage, in hindsight it looks like a brilliant strategy to address cohabitation first. The stakes were lower, allowing the Court to do the heavy lifting of overturning Pace and finding that Florida’s law violated the Equal Protection clause of the 14th Amendment. Drawing on recent civil rights decisions, including Brown, the McLaughlin decision said that actions could not be criminalized solely because of the race of the person doing them. This laid the groundwork for Loving.
Loving v. Virginia, 1967
After McLaughlin, the Court was on solid footing to say in Loving: “The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.” The Commonwealth of Virginia itself made white supremacy an issue in the case, arguing in its Supreme Court brief that a race need not “offer apologies for their desire to perpetuate themselves.”
The Loving opinion then took a step further, holding that race-based marriage bans also violated the 14th Amendment Due Process clause. This was the first time the Court recognized marriage as a fundamental right, a conclusion that would prove pivotal in Obergefell nearly 50 years later.
Side note: Loving cites two WWII-era cases about the deprivation of rights for Japanese Americans, Hirabayashi and Korematsu, for the proposition that “[d]istinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality.” (Quote from Hirabayashi.) It’s odd to see these cases cited here because in both of them, the plaintiffs lost. The Court agreed that the Japanese curfew and internment camps were discriminatory, but concluded that the government had a compelling interest in preventing sabotage and espionage that justified suspending the rights of the plaintiffs. Loving may have been a triumphant moment in civil rights, but it did not signify race enlightenment for the Supreme Court.
- Peter Wallenstein has many articles on this topic, including Race, Marriage, and the Law of Freedom: Alabama and Virginia 1860s-1960s, 70 Chi.-Kent L. Rev. 371, 438 (1994). His book Tell the Court I Love My Wife: Race, Marriage and Law — And American History (St. Martin’s Press, 2015) is more accessible than his law review articles. The description of the couple in the McLaughlin case above comes from this book. (The title is a quote from Richard Loving.)
- Interracial Intimacies: Sex, Marriage, Identity, and Adoption by Randall Kennedy (Pantheon, 2003). One of my favorite law school professors, and an authority on the subject of race and the law. This book is cited extensively in the NAACP’s Obergefell amicus brief. Here’s an Atlantic article by Kennedy touching on a few of the topics in the book.
- Where did the term “anti-miscegenation” come from? See Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America.
- Dorothy E. Roberts’ article “Loving v. Virginia as a civil rights decision,” 59 N.Y.L. Sch. L. Rev. 175 (2014–2015), discusses the civil rights context of the decision.