The Fortieth Anniversary of Loving v. Virginia: The Legal Legacy of the Case that Ended Legal Prohibitions on Interracial Marriage
By JOANNA GROSSMAN
|Tuesday, Jun. 12, 2007
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 And other couples residing in states like Virginia were similarly freed from the constraints of an outdated and discriminatory law.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hastened the demise of bans on interracial marriage, such laws were already on their way out; fourteen states had repealed them without judicial pressure in the decades prior.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.