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The
Fortieth Anniversary of Loving v. Virginia: The Legal
Legacy of the Case that Ended Legal Prohibitions on Interracial
Marriage
By JOANNA
GROSSMAN, writ.news.findlaw.com June 12, 2007
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Forty years ago today, the U.S.
Supreme Court held that state laws criminalizing interracial marriage are
unconstitutional. In that case, Loving v. Virginia, the Court
invalidated the anti-miscegenation law not only in Virginia, but also in the
fifteen other states that banned the practice.
In Part One of this series, I considered the personal and cultural legacy of
Loving. In this Part, I'll consider its legal legacy: What role
has the opinion played in American law?
Constructing a Legal Legacy: The Immediate and Longer-Term Effects of a
Case
Loving v. Virginia obviously had immediate, liberating effects for
Mildred and Richard Loving, who were able to return home with their children
after several years living effectively in exile. And other couples
residing in states like Virginia were similarly freed from the constraints of an
outdated and discriminatory law.
But Loving's legacy extends beyond these immediate effects. While
the ruling in Loving hastened the demise of bans on interracial marriage,
such laws were already on their way out; fourteen states had repealed them
without judicial pressure in the decades prior. The rest of these laws,
too, would eventually have fallen as cultural norms evolved even further away
from those of the era that embraced racial segregation and explicit
subordination. But a landmark case like Loving should be remembered
for its effects on other legal doctrines as well.
As described in Part One of this series, the Supreme Court in Loving
invalidated Virginia's anti-miscegenation law on two constitutional grounds:
It held the law violated the Equal Protection Clause because race-based
classifications are invidious, permissible only when justified by a compelling
governmental purpose. In addition, it held that law violated the Due
Process Clause because the right to marry "is one of the vital personal rights
essential to the orderly pursuit of happiness by free men," one that is
"fundamental to our very existence and survival."
Legally speaking, that ruling has been important to the development of a number
of different constitutional doctrines, including the Constitution's protection
for marriage, the proposition that there are constitutional limits on state
regulation of domestic relations, and the proposition that racial
classifications are invidious.
Constitutional Protection for the Right to Marry
Because Loving was so tied up with race, and the particular law the case
invalidated was so clearly inspired by racism, it was not immediately clear what
impact, if any, the ruling would have on the validity of other marriage
restrictions. Was it only because Virginia's law defined the right to
marry on the basis of race that it was constitutionally infirm?
Certainly, the ruling did not generally override state law with respect to
marriage, nor did it signify that all marriage restrictions were equally
invidious. Only a few years later, for example, the Supreme Court
dismissed an appeal in Baker v. Nelson, one of the first cases to
challenge the constitutionality of a state's ban on same-sex marriage, "for want
of substantial federal question." It thus left the state bans on same-sex
marriage intact, despite Loving's strong language about the fundamental
importance of the right to marry.
The Court's next marriage case, however, solidified constitutional protection
for marriage even in the absence of a racial classification. In
Zablocki v. Redhail, a 1978 case, the Court struck down a Wisconsin statute
prohibiting noncustodial parents who were behind on support obligations from
marrying if their children were on welfare.
The Court began its analysis of the Wisconsin law by citing Loving -- the
"leading decision" on "the right to marry" -- and used heightened scrutiny to
evaluate the law, even though it involved no race-based or other suspect
classification, simply because marriage is a right "of fundamental importance."
Zablocki thus made clear that Loving's unwillingness to tolerate certain
marriage restrictions was not limited to those drawn on the basis of race.
Loving and the Battle for Same-Sex Marriage
The Supreme Court has not revisited the right to marry in twenty years, but the
law of marriage can hardly, today, be considered settled. The scope of the
right to marry remains fiercely contested because of the issue of same-sex
marriage, and Loving has plays a central role in that battle.
Same-sex marriage advocates have primarily invoked Loving to argue, by
analogy, that a ban on same-sex marriage is a form of sex discrimination, just
as a ban on interracial marriage is a form of race discrimination. In
Loving, Virginia argued its law was permissible because it barred whites
from marrying non-whites, just as much as it barred non-whites from marrying
whites. However, the Supreme Court expressly rejected this "equal
application" justification, holding that the law was racially discriminatory
because it determined eligibility to marry based on an individual's race.
The same logic, many have argued, applies to bans on same-sex marriage: a
man is ineligible to marry another man solely because of his sex, and a woman
ineligible to marry a woman because of her sex. And the fact that both
sexes are equally forbidden from marrying same-sex partners does not negate this
discrimination on the basis of sex.
The so-called Loving analogy was first made successfully in Baehr v.
Lewin, a 1993 case in which the Hawaii Supreme Court set the stage for the
legalization of same-sex marriage in that state. The court concluded that
the ban on same-sex marriage constituted a sex-based classification, dooming it
to almost certain invalidation at trial on remand, since such classifications
are reviewed with strict scrutiny under the Hawaii Constitution. (In the
end, same-sex marriage never became legal in Hawaii because of a subsequent
amendment to the state's constitution.)
The court in Baehr also relied on Loving for another proposition:
that state law cannot define marriage based on religious traditions. The
trial court in Loving had justified Virginia's ban on interracial
marriage because of the implicit endorsement of "Almighty God," who purportedly
had separated the races by continent in order to keep them apart. By
overturning the trial court's ruling, the Hawaii court wrote, the U.S. Supreme
Court had rejected such religious influence on the definition of the right to
marry. "[W]e do not believe," the Hawaii Supreme Court wrote, "that trial
judges are the ultimate authorities on the subject of Divine Will, and, as
Loving amply demonstrates, constitutional law may mandate, like it or not,
that customs change with an evolving social order."
Later cases on same-sex marriage have also considered the import of Loving.
The sex discrimination argument has been made in many cases, but with mixed
results. Some courts have distinguished Loving from cases involving
same-sex marriage primarily because of the courts' view that racial
classifications are uniquely invidious and thus intolerable. In Baker
v. State, for example, the Vermont Supreme Court interpreted the state
constitution to require that equal benefits be extended to same-sex couples
(codified ultimately in the nation's first civil union bill), but rejected the
analogy to Loving as "flawed." As the court explained, "[w]e do not
confront in this case the evil that was institutionalized racism"; moreover,
plaintiffs "have not demonstrated that the exclusion of same-sex couples from
the definition of marriage was intended to discriminate against women or
lesbians and gay men, as racial segregation was designed to maintain the
pernicious doctrine of white supremacy."
Other courts distinguished Loving by taking into account recent history
and tradition to decide whether a fundamental right is at stake. In
Andersen v. Kings County, a Washington state case, for example, the court
observed that "whatever the history and tradition of interracial marriage had
been, by the time Loving was decided, it had changed." In 1967,
only 16 states still banned interracial marriage; in 2006, when Andersen was
decided, only a single state permits same-sex marriage.
However, the only court to validate same-sex marriage interpreted Loving
differently in this regard. The Massachusetts Supreme Judicial Court, in
Goodridge v. Department of Public Health, concluded that Loving's
outcome did not depend on the "full-scale retreat" of miscegenation laws, but
turned instead on a "more fully developed understanding of the invidious quality
of the discrimination."
Outside the same-sex marriage context, Loving has had little relevance,
if any, in challenging state regulation of marriage. Loving is not
cited at all in Moe v. Dinkins, a leading decision, issued by a judge of
the U.S. District Court of the Southern District of New York in 1981,
considering the constitutionality of a New York law providing that minors below
a certain age can only marry with parental consent. Nor is it cited in
Utah v. Holm, a very recent decision by the Utah Supreme Court upholding a
man's conviction for bigamy against a constitutional challenge.
Beyond Marriage: Loving v. Virginia in Other Legal Contexts
Loving was central to the development of constitutional protection for
marriage, but also important to establishing a more fundamental principle:
that state regulation of domestic relations is constrained by federal
constitutional guarantees.
A decade before Loving, the validity of Virginia's anti-miscegenation law
had been upheld, in Naim v. Naim, by the state's highest court on the
grounds that "[m]arriage . . . is subject to the control of the States.
Nearly seventy years ago the [U.S.] Supreme Court said, and it has said nothing
to the contrary since." The U.S. Supreme Court refused to review this
case, leaving that notion intact until it wrote in Loving that the power
of the states to regulate marriage is not "unlimited" given the "commands of the
Fourteenth Amendment."
This repudiation of unlimited state power over domestic relations had
implications beyond the right to marry, and spurred an expansion of substantive
due process rights to include a panoply of other rights. There is now a
lengthy patchwork of cases cited for the proposition that individuals have "the
right to be free, except in very limited circumstances, from unwanted
governmental intrusions into one's privacy," and Loving is virtually
always early in the list of citations.
Loving also had implications for cases having nothing to do with marriage
or family. Zablocki made clear that Loving was not just a case
about race, but other cases have made clear that it was also not just a case
about marriage. Because of the centrality of race to the ruling in
Loving, the opinion has had a robust life outside the family law context.
Viewing the Virginia law as "designed to maintain White Supremacy," the Supreme
Court in Loving took a hard line on racial classifications, not only
rejecting the "equal application" theory the state had urged (discussed above),
but also applying the highest form of scrutiny to evaluate the law's
constitutionality. Thus, Loving continues to be cited as one of the
main precedents for the level of scrutiny applied to race-based classifications
in a variety of contexts such as affirmative action, voting rights, and school
financing.
Loving's Landmark Status Is Well-Deserved, Given Its Legacy
Loving's landmark case status is, forty years later, firm and
well-deserved. Its contribution to the canon of American law is
unquestionable, as the precedent has shaped two important substantive
constitutional doctrines and recalibrated the balance of federal-state power
over domestic relations. These effects are an important part of the legacy
of Loving that we celebrate today.
Though interracial marriage remains a disappointingly unusual occurrence, and
the black-white cultural and marital divide is still deeply entrenched,
Loving removed the legal obstacles to such relationships. That
cultural change has lagged behind the legal change is no criticism of the
Supreme Court's ruling in Loving, but simply a reflection of law's
limited power to effect social change. Had Loving come out the
other way, we would certainly not come together to celebrate its anniversaries.
The ideas in this column are explored more fully in John
DeWitt Gregory & Joanna Grossman, The Legacy of Loving, 51 Howard Law
Journal (forthcoming 2007), an essay written for a symposium honoring the 40th
anniversary of the case.
Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra Univ.
Her Columns on family law, trust and estates, and discrimination, including sex
discrimination and sexual harassment, may be found in the archive of her columns
on this site.
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