Loving v Virginia and Prop 8

I’ve hear a lot of references to Loving v Virginia in the current Marriage Equality movement (full citation for law geeks at the end). I decided to make use of my LexisNexus subscription to see what it was all about. The decision itself is about 5 pages long. It is short, sweet, and exemplifies the clear prose I enjoy reading from the Warren Court.

I was looking for support of gay marriage in this decision. This is sort of like Feminists for Life arguing that Mary Wollstonecraft was pro-life—I am trying to find in Warren’s words things he himself may not have thought appropriate to find in them.

Surprisingly, I found some great quotes to promote broader definitions of marriage. I found them not only the decision itself but also in the anti-miscegenation laws quoted in the notes.

Loving v Virginia Quotations which could be used to support Gay Marriage:

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Chief Justice Warren, Loving v Virginia.

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.   Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).See also  Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.  Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” Chief Justice Warren, Loving v Virginia.

This quote below is interesting because of its use of the word “persons” (who may marry) rather than “a man and a woman” (who may marry). The text is from one of Virginia’s anti-miscegenation laws as quoted in Loving v Virginia. Warning: the text that follows includes racist and offensive language and terms.

“Intermarriage prohibited; meaning of term ‘white persons.’ — It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian.  For the purpose of this chapter, the term ‘white person’ shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons.  All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.” Va. Code Ann. ß 20-54 (1960 Repl. Vol.).

According to the decision, at the time of Loving v Virginia the following States had anti-miscegenation laws. According to the linked article, States with asterisks (*) currently have laws against same-sex marriage (I am not distinguishing from constitutional and non-constitutional bans):

  • Alabama*
  • Arkansas*
  • Delaware
  • Florida*
  • Georgia*
  • Kentucky*
  • Louisiana*
  • Mississippi*
  • Missouri*
  • North Carolina
  • Oklahoma*
  • South Carolina*
  • Tennessee*
  • Texas*
  • West Virginia

According to the decision, at the time of Loving v Virginia the following states had repealed anti-miscegenation laws. According to the linked article, states with asterisks (*) currently have laws against same-sex marriage (I am not distinguishing from constitutional and non-constitutional bans)::

  • Arizona*
  • California*
  • Colorado*
  • Idaho*
  • Indiana*
  • Maryland*
  • Montana*
  • Nebraska*
  • Nevada*
  • North Dakota*
  • Oregon*
  • South Dakota*
  • Utah*
  • Wyoming*

Historical note:

The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California.   Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (1948).

I am not arguing that anti-miscegenation statutes were written to include the possibility of gay marriage. Given the overlap between States which saw fit to ban interracial marriage and States which see fit to ban same-sex marriage, I am sure they were not. But I believe the pervasive use of the word “persons” does violence to the validity of the Yes On 8 crowds’ insistence that gendered terms have always been part of modern legal definitions of marriage.

Legal citation

No. 395
388 U.S. 1; 87 S. Ct. 1817; 18 L. Ed. 2d 1010; 1967 U.S. LEXIS 1082
April 10, 1967, Argued
June 12, 1967, Decided
DISPOSITION:  206 Va. 924, 147 S. E. 2d 78, reversed.

Inspirational Quote:

Amatory: expressing love

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