Marriage, Loving and the Law

by Kermit Roosevelt
June 5, 2007
first published in The Washington Post (Used with Permission)

In June 1958, Virginia residents Richard Loving and Mildred Jeter traveled to Washington, D.C., got married and returned home. An unexceptional story but for one fact: Richard was white and Mildred black. Their marriage therefore violated Virginia's Racial Integrity Act. The Lovings were convicted in Virginia court and sentenced to a year in jail, with the sentence suspended on the condition that they leave Virginia and not return together for 25 years.

They got back sooner. On June 12, 1967 -- 40 years ago next Tuesday -- the Supreme Court struck down Virginia's ban on interracial marriages. Writing for a unanimous court, Chief Justice Earl Warren stated that the restriction served no purpose but that of "invidious racial discrimination" and therefore violated the equal protection clause of the 14th Amendment.

Loving vs. Virginia is a constitutional icon now, not least because of its wonderful name. But its continued relevance might not be obvious. Nowadays everyone agrees that bans on interracial marriages are unconstitutional, and even if they weren't, few people would support them. But Loving illustrates something important about the evolution of constitutional law.

The place to start is simple. The equal protection clause was ratified in 1868, but it took a century for the court to prohibit laws banning interracial marriage. If the decision is so obviously right, why did it take so long? One answer might be that the court was waiting for the proper political climate. Brown vs. Board of Education, handed down in 1954, aroused tremendous resistance, and the court might reasonably have concluded that it should wait before pressing further.

But this answer is too simple. Yes, there would have been political resistance then, but it would have been based on the argument that the Constitution did not require states to allow interracial marriage. And at some earlier time this argument would have been correct. The equal protection clause guarantees only "the equal protection of the laws." It does not explicitly prohibit all discrimination. The best the court has done over the years to define the prohibited kind is to say that the clause bars "invidious" discrimination -- discrimination designed to oppress a particular group or to brand its members as inferior. If reasonable justifications for discrimination exist, it is constitutionally permissible.

Interracial marriage bans now seem obviously invidious. But go back far enough and the consensus flips. At one point, most everyone thought such bans were legitimate. The same is true of segregated schooling and discrimination against women. It is true of just about everything the Supreme Court has held that the equal protection clause prohibits: At one point, all of these practices were seen as legitimate reflections of the world, not as invidious attempts to impose inequality. When the court held these practices unconstitutional, it was neither enforcing a rule that had existed since 1868 nor creating a new rule. It was recognizing that social attitudes had shifted, and with them the understanding about what is reasonable and what is invidious.

This point connects Loving to current social struggles, most notably the debate over same-sex marriage. Opponents decry the "activist judges" in Massachusetts who struck down that state's same-sex marriage ban and warn that the Supreme Court will someday follow. So it may -- but, if it does, responsibility will not lie primarily with judges.

The past few decades have brought a dramatic change in social attitudes about homosexuality. The American Psychiatric Association, which once classified homosexuality as a mental disease, abandoned that position in 1973. Public opinion polls show an increasing acceptance of homosexuality, and state legislatures are beginning to follow. Restricting the benefits of marriage to opposite-sex couples is increasingly seen as invidious, an inequality inflicted for no good reason.

If the trend continues, this view eventually will find expression at the Supreme Court level, just as it did in Loving. This is not judicial activism. It is how we make the Constitution ours.

About the writer: * Kermit Roosevelt is is a professor at the University of Pennsylvania Law School and author of "The Myth of Judicial Activism." His e-mail address is krooseve@law.upenn.edu.

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