Category Archives: US Supreme Court

Loving and Marriage

Today is the 40th anniversary of the landmark Loving v. Virginia case, the case that finally declared laws against interracial marriage to be unconstitutional. Many thanks to Rachel Kramer Bussel for reminding us all that not only is this the anniversary, but that an organization exists that promotes its celebration! Here’s a link to her interview with Loving Day’s founder, Ken Tanabe.

Interracial marriages were still against the law in 16 states as recently as 1967, when the Supreme Court ruled that laws criminalizing them were unconstitutional. (They were illegal in 24 states in 1958 when Virginia residents Richard Loving, a white man, and Mildred Jeter, a black woman, traveled to Washington DC to get married.) Loving v. Virginia is an interesting case to think about. For one thing, the law being challenged did not prevent all interracial marriages, but only those that involved white people. An African American and a Native American could marry, but neither could marry a white person. The concern was clearly for protecting the “racial purity” of white people as the dominant race. Here’s an excerpt from the Supreme Court decision that quotes the law in question:

The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating 20-58 of the Virginia Code:

Leaving State to evade law. If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.”

Section 20-59, which defines the penalty for miscegenation, provides:

“Punishment for marriage. If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”

Not only were interracial marriages unrecognized, but to live together “as man and wife” was evidence of marriage and marriage was a felony crime punishable by up to five years in prison. In the case of the Lovings (aptly named!), who had gone to Washington DC to get married in 1958, the punishment had been 1 year in prison, suspended for 25 years as long as they left the state and didn’t return for 25 years. In other words, they must spend a year in prison or be banished from their home state. The Lovings pleaded guilty when they were charged in January 1959, moved to Washington DC after their banishment, and spent the next 8 years filing motions and appeals attempting to win their right to be married.

Their case is interesting also because it highlights the use of religion in decisions about marriage, and the way that God is invoked to justify socially-defined boundaries. The judge who ruled on the Loving’s original conviction wrote:

“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.”

Of course many deeply religious people were activists in the civil rights movement, and that movement itself would have been impossible were it not for the part played by churches. The words of the judge in the Loving case reflect a narrowly defined understanding of Christianity and God held by a small but dominant group of people. We are seeing something very similar in our current fight for marriage equality today. When people oppose marriage between two people of the same gender, they often invoke a narrow understanding of god that is held by a shrinking but still dominant group of people.

When the Lovings’ case was heard by the Supreme Court, the question was really whether it was a violation of the 14th amendment to ban marriage between two people based only on their races. The first section of the 14th amendment reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th amendment is not one that deals only with questions of race. In fact, the only place that race is mentioned in the text of the amendment is a mention of “Indians” in Section 2 which deals with representation in Congress, and there it is not race on its own but “Indians not taxed” — read: Indians who are members of Native American Nations — and while the entire history of the treatment of Native Americans in North America is one of racial injustice, of course, the issue as presented in the 14th amendment is one of “no representation without taxation.”

Celebrating the Loving v. Virginia decision is important for at least two reasons. First, we should celebrate the step away from institutionalized racism that the decision represents. And we should notice the degree to which racial injustice still pervades our social structure, and should continue to work for racial equality. We are still a segregated society, with segregated schools and segregated social groups. We need reminders to cross boundaries we wouldn’t ordinarily cross and to make friends. Second, we should celebrate in order to reminds ourselves that injustices can be rectified, and that with courage, persistence, and activism, they are rectified.

Can you imagine if the federal government had passed a “Defense of Marriage Act” in the late 1950s or early 1960s such that no state would have to recognize any other state’s interracial marriages? Might that have changed the tenor of the Supreme Court such that the Loving case would have gone differently?

Can you imagine requiring interracial couples to endure civil unions rather than having full marriage rights?

We are again in the midst of a struggle for equal protection under the law as it relates to marriage rights, this time for couples where the partners belong to the same group, rather than to different groups.

Shouldn’t we grant couples of the same gender the kind of equal protection granted to couples of different races 40 years ago?

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Bonus points: I know some of you read from other countries. In addition to discussing the specific issues raised above, can anybody provide links or discussions of marriage segregation laws from other countries, or discuss how they’ve changed?

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