We usually don’t commemorate the 39th anniversary of an event, but today is an exception. Because of the recent proposal to amend the Constitution to ban homosexual “marriage,” which failed to gain traction, I believe it’s important to blog about Loving v. Virginia and distinguish between laws criminalizing marriage between a man and woman of different races and laws against marriage between two men.
Thirty-nine years ago today, the Supreme Court declared in Loving v. Virginia that laws against interracial marriage violated the Fourteenth Amendment of the Constitution.
After the Civil War, states began to enact laws called the Black Codes in response to the emancipation of slaves. Democrats created these laws for newly-freed slaves that restricted their rights to own or rent farmland, vote, sit on juries, testify against white men, sue, enter into contracts, and intermarry with whites. Republicans opposed the laws and wanted to pass the Civil Rights Bill to protect former slaves. Democratic president Andrew Johnson refused.
Richard Loving and Mildred Jeter had known each other since childhood in Central Point, Virginia. In 1958, the two traveled to Washington, D.C., to get married since they couldn’t legally marry in Virginia. They returned to Virginia, and a few months later, both were arrested and taken to jail. They plead guilty to “unlawful cohabitation.” The court suspended their one-year sentence in prison on the condition that they leave Caroline Country, Virginia, and not return together for twenty-five years.
The Lovings moved to Washington and eventually appealed their convictions all the way to the U.S. Supreme Court. Virginia defended its anti-miscegenation laws on two grounds:
1) The laws punished “equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race”;
2) Assuming that the Equal Protection Clause doesn’t void miscegenation statutes because of racial classifications, the issue becomes whether there is a rational basis for the state to treat interracial marriages differently. (“No State shall…deny to any person within its jurisdiction the equal protection of the laws.”)
In finding that Virginia’s anti-miscegenation law violated the Lovings’ constitutional rights, the court rejected both arguments. Racial classifications are suspect, and the state must demonstrate a “permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”
Post-Civil War legislation (Thirteenth, Fourteenth, and Fifteenth Amendments) was designed to remove the color line and declare all citizens equal before the law, and the court rejected the notion that the equal protection requirement was satisfied just because blacks and whites were penalized equally for intermarrying.
The court noted that the laws prohibited interracial marriage with whites, “designed to maintain White Supremacy.” Every other race could legally marry. The court also found that Virginia’s anti-miscegenation laws violated the Due Process Clause: “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.”
As marriage is defined as a union between a man and a woman, there was no “overriding purpose” to outlaw marriage between a white man and a black woman other than blatant racial discrimination.
Homosexuals have cited Loving v. Virginia and the entire Civil Rights movement in their quest to legalize marriage between two men. Aside from the moral outrage this should generate in the black community, marriage between a man and woman of different races and marriage between people of the same sex aren’t comparable at all. Marriage is a legal union recognize by the states as serving fundamental purposes: provides structure for family formation and rearing children, and provides a stabilizing influence that benefits the whole society.
For an expanded discussion, I refer you to Protecting America’s Immune System: A Reasonable Argument Against Homosexual Marriage. Frank Turek presents a convincing case why homosexual behavior itself, not just “marriage,” should be discouraged. The same arguments also apply to illegitimacy.
Your thoughts?
Addendum: Commenter “sonnyred” makes two important points. 1) The Loving court cited Skinner v. Oklahoma, which contended that “Marriage and procreation are fundamental to the very existence and survival of the race.” That case involved forced sterilization of habitual criminals; 2) I’ve blogged about this before but failed to mention it in the post. Homosexuals do have a right to marry: someone of the opposite sex.
Says commenter Ian MacD.:
You are born with you skin color. I highly doubt that you are born with sexual preferences. Blacks were treated far worse than homosexuals, and were denied the basic rights guaranteed by the Constitution. Until gays are not allowed to vote, are denied access to schools and endure what blacks had to, they have no right whatsoever to call their movement a civil rights issue.
Sources:
- Same-Sex Marriage: Hijacking the Civil Rights Legacy
- A More Perfect Union: How the Founding Fathers would have handled gay marriage
- Standing Out: The sharp increase of non-marital births in the Netherlands needs some explaining
- Black Codes and Jim Crow Laws
- An excerpt from the book Virginia Hasn’t Always Been for Lovers
- The made-for-TV movie Mr. and Mrs. Loving
