June 12th, 2012, 10:18 AM
Join Date: Oct 2010
Mimicking a topic about tearing down the Berlin wall, today is the anniversary of another significant "wall" which was torn down, and which has effects rippling into the present day:
On this day in 1967 a unanimous Supreme Court issued its opinion in Loving v Virginia, 388 U.S. 1 (1967). The case was argued April 10, with the Court quickly reaching its decision.
Mildred Jeter was Black, Robert Loving was White. They met in Virginia, married in the District of Columbia because interracial marriage was illegal in Virginia, then returned to Virginia to live.
They were charged by a grand jury with having violated Virginia's law, entered a guilty plea and
....were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that: |
"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 marriage. The fact that he separated the races shows that he did not intend for the races to mix."
They moved to DC, and in 1963 filed a motion in state court in Virginia to vacate the judgment, and when that had not been decided filed a motion in Federal District Court. The case was allowed to work its way through the state system, where the Lovings lost, whereupon the Supreme Court noted its probably jurisdiction in December of 1966.
The state argued that there was no violation of the 14th Amendment Equal Protection clause because the provisions of the Act in question - in which interracial marriage was a felony - were applied equally to Whites and Blacks.
The Supreme Court did not agree. In his opinion Chief Justice Warren noted the requirement of applying the "most rigid scrutiny" when a state seeks to make a racial distinction, particularly in criminal law (this standard being derived from the unfortunate Korematsu case where that Court found the the order violated by Fred Korematsu had met that standard - here I think the dissent by Robert Jackson is most notable).
Let me note several key aspects to this decision.
At the time of the decision, 16 states still had such anti-miscegenation laws. Obviously given the marriage of the parents of our current President, Hawaii was not among those states.
Note this language:
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
By itself, what I have quoted would seem to offer little guidance in current disputes over marriage equality.
But note what immediately follows those words:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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.
essential to the orderly pursuit of happiness by free men - here I am reminded of the 9th grade student in 1996-97 whose father was a prominent African-American minister (of the "God made them Adam and Eve, not Adam and Steve" variety) who volunteered that she did not see the big deal about gay marriage, weren't her gay friends equally entitled to the pursuit of happiness.
The opinion continues:
This sentence brings mixed support for marriage equality. Certainly we cannot argue that gay marriage is fundamental to existence and survival, but one could respond that neither are marriages where one or both partners are incapable of producing a child by normal sexual means, and if it is among the "basic civil rights of man" then how does sexual orientation justify the denial of that right?
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.
The Court was only addressing the issue of interracial marriage, as words near the end of the opinion make clear:
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. |
These convictions must be reversed.
While the interpretation here of the 14th Amendment is clearly understood as flowing from the ratification of that Amendment in light of the continued discrimination against freed slaves in the period after the Civil War, in light of subsequent Supreme Court decisions dealing with gay rights, such as Romer v Evans and Lawrence v Texas, one can see a clear line in favor of marriage equality, even if we know there are several certain votes against it on this current Court. And given that increasingly the Court has been willing to recognize the cogency of law in other nations - to wit, not executing minors - the increasing acceptability of same sex marriage in other nations, including those with which we have close economic, political, military and cultural ties, seems to point in the direction of eventual SCOTUS acceptance of marriage equality. Certainly having a Conservative government in the UK that supports it will contribute to that.
In my lifetime, we have come very far on matters of race. Certainly the election of Barack Obama, the child of an interracial marriage, is one major illustration. So are the many multihued students who have passed through my classrooms over the years. So are my great nieces, the daughters of my sister's son and his African-American wife.
That nephew has an aunt who is gay, who is in a committed relationship in a major northeastern city. I do not know if she has yet formalized it into a state-recognized marriage, but he would have no trouble with it.
Neither would have Mildred Loving. Near the end of her life, she was asked if she would be willing to speak out against an initiative to amend Virginia's Constitution to define marriage as between one man and one woman (even though Virginia already had a statute that banned same-sex marriages). Still living in the house that her late husband Robert had built, she took some time to pray about it, to consult with family and friends.
When she agreed to allow her name to be used in opposition to the Amendment, she was asked if she understood what she was supporting. Her response was clear, that what was being done to same sex couples was exactly like what had been done to her and Robert.
In 1967 we had a Court that could unanimously move this country forward. Now we would be grateful for a 5-4 decision that would recognize the legitimacy of those whose love is for someone not of the opposite sex, that would clearly state that marriage is a fundamental right for all adults, that no state should be making that decision in a way that restricts a fundamental freedom, a vital personal right essential to the orderly pursuit of happiness by free men.
We would not even be able to contemplate the possibility of such a move were it not for Robert and Mildred Loving.
On this 45th anniversary of their victory, or rather, the Supreme Court acknowledging their basic civil right, I thought it appropriate to remind people.
And while society has improved in many respects since 1967, 60% of the Mississippi GOP today doesn't support mixed-race marriage according to this recent poll.
And 46% want to ban it.