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Loving v. Virginia comes to fore as court takes up gay marriage

Loving v. Virginia comes to fore as court takes up gay marriage

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In Richard Loving’s message to the U.S. Supreme Court, he simply let his heart speak. His attorney, Bernard Cohen, read Loving’s words to the nine justices during his oral argument.

“Mr. Cohen, tell the court I love my wife, and it is just unfair that I can’t live with her in Virginia.”

It was the poignant plea of a man who had just one wish: that his marriage to his wife, Mildred, be lawful and recognized under the laws of their home state. In June 1967, the high court heard the Lovings’ case, ruling unanimously that Virginia’s anti-miscegenation statute, the Racial Integrity Act of 1924, was unconstitutional.

Read more: Story of couple's landmark victory to be filmed in Virginia

This landmark decision invalidated state bans on mixed-race marriages nationwide — and it also set the stage for a legal and cultural battle that will culminate with another hearing before the Supreme Court nearly five decades later.

Next month, the justices will decide if state bans of marriages between same-sex couples violate the same principles under the equal protection clause of the 14th Amendment and if all states must recognize such unions.

And the court almost certainly will look to the Loving v. Virginia case for guidance.

In an interview, Cohen said he believes the justices should come to the same conclusion as the court under Chief Justice Earl Warren 48 years ago, when Cohen was a young attorney for the American Civil Liberties Union. Warren found marriage to be one of the “basic civil rights of man.”

“The decision in Loving brought enough to encompass the principle involved in the same-sex marriage case,” Cohen said in a phone interview Friday. “Because the constitutional principle involved is the same, the right to marry is a constitutionally protected right of liberty. I think it’s that easy.”

In 1960s Virginia, the state emphasized its right to regulate marriage, on the principles of federalism. And at the time, prohibiting race mixing was equated with preventing sibling marriage or child marriage.

Richard Loving, a white man, and his wife, Mildred, who was black, evaded the laws in their home state and married in Washington, D.C. Upon their return to Caroline County, they were charged under Section 20-58 of the Virginia Code, which prohibited interracial couples from being married out of state and then returning to the commonwealth. They were also found in violation of Section 20-59, which classified miscegenation as a felony, punishable by a prison sentence of one to five years.

The couple pleaded guilty and avoided a prison sentence by agreeing to leave Virginia. They found a temporary home in the District of Columbia, where they launched their lawsuit — and ultimately won.

The Loving story will be the focus of a major motion picture that will be filmed in Virginia in September.

The case has been used by proponents of gay marriage since 1972’s Baker v. Nelson, the first instance in which the Supreme Court faced the issue of marriage between same-sex couples.

“Loving is both a case about the anti-discrimination principle and a case about marriage as a fundamental right. The combination of these two of the most powerful constitutional arguments in the modern lexicon are both combined in the same case, and that doubles the iconic appeal of the Loving case,” said Dick Howard, a professor of constitutional law at the University of Virginia and the principal author of the modern Virginia state constitution. “This is what makes it so powerful an analogy to draw upon by people who are the plaintiffs in the same-sex marriage cases.”

Not many people had heard about Loving until the debate over same-sex marriage, Howard said.

“But it was there, ready to be used by the plaintiffs,” he said. “It’s a neat representation of where the court and the country were going in terms of discrimination and where the country was about to go in terms of personal autonomy.”

In 2013, when the U.S. Supreme Court struck down parts of the federal Defense of Marriage Act in Windsor v. United States, Justice Anthony Kennedy cited Loving when he said that while states have traditional authority to define and regulate marriage, such state laws “must respect the constitutional rights of persons.”

And in post-Windsor federal litigation, Loving features prominently as a core precedent for the fundamental right to marry — including last year, when federal District Judge Arenda Wright Allen tossed out Virginia’s 2006 amendment to the state constitution that defined marriage as between a man and a woman, linking directly to the Loving case.

“Tradition is revered in the commonwealth, and often rightly so,” Wright Allen wrote. “However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.”

To Virginia Attorney General Mark Herring, the Lovings’ fight for legal recognition of their marriage helped “broaden our understanding” of equality in a way that still resonates today.

“In our recent same-sex marriage equality case, our opponents made the exact same arguments that were used to block the Lovings’ marriage,” Herring said in an email Friday. “But the courts found in both cases that marriage is a fundamental right, and people should be free to marry the person they love.”

Opponents argue that a lawsuit seeking to end bans on interracial marriage does not compare to litigation that would redefine what marriage traditionally stood for.

David Oakley, one of the attorneys defending Virginia’s gay marriage ban last year, wrote that the judge’s comparison to the Loving case was misguided.

“Unlike infringing on the right to marry based on invidious racial laws, the decision to restrict marriage to couples of the opposite sex is not based on any suspect or irrational classifications,” Oakley wrote.

So who is right on whether Loving should serve, rightfully, as the basis for legal arguments in marriage equality cases?

Henry Chambers, a professor of constitutional law at the University of Richmond, suggests that the two sides on this issue tend to be arguing past each other.

“Loving is a big old trump card, depending on how you look at it,” Chambers said. “As a consequence, Loving is lesser an argument and more of an argument ender,” he said, adding that it comes down to personal interpretation of what constitutes marriage.

“If you support same-sex marriage, Loving makes it fairly clear that state bans would be discriminatory under Loving and the 14th Amendment,” he said. “If you are on the opposite position, then you view Loving as being largely irrelevant to the issue.”

That is because same-sex marriage, Chambers argues, is not the same as interracial marriage.

“I am more than happy to protect both in exactly the same way,” he said. “In terms of what I would consider issues purely related to the question of love and affection, same-sex marriages look exactly the same as traditional marriages. But when it comes to issues with respect to procreation and children, they tend to look a little different from a biological perspective. The question is, is that enough to treat those marriages differently?”

E.W. Jackson, a former lawyer from Chesapeake and the 2013 Republican candidate for lieutenant governor, said that as a Christian and a black man who has lived through the civil rights movement of the 1960s, he finds the analogy of gay marriage to the Loving case offensive.

“Look, we don’t hate homosexual people or transgender people, we love them, we pray for them. But we believe that this is just an exploitation of a really glorious movement that had nothing to do with behavior. It was only about skin color. To liken the two, it just exploits the senses, and it is insulting,” Jackson said in a phone interview last week.

The Lovings, Jackson said, were not asking for a redefinition of marriage.

“They were simply saying the color of our skin should not prevent us, a man and a woman, from being married. These are two very different things,” he said.

Jackson added that the judges who have ruled in favor of gay marriage are “profoundly confused” about the comparison between two people of the same gender claiming a right that has always existed for two people of different genders.

“The reality is that this has been sold to a lot of people in the judiciary and, at this point, it is a liberal principle, and everybody on the left buys into it,” he said. “But Bible-believing Christians just believe that these people are deeply misguided and wrong. I don’t care who it is; I don’t care if it’s the Supreme Court justices. They are just flat-out wrong.”

It is not known how the Lovings would have felt about gay marriage back in the 1960s when they sought to end Virginia’s ban on interracial marriage.

“They were a part of the time as the rest of us were. Gay lifestyle was largely hidden from public view, and this was an age in which the courts would have given [gays] no relief at all,” UVa’s Howard said. “I suspect the Lovings would have been a bit puzzled by the question, but philosophically we could imagine that if they lived today, they would say yes, same-sex couples should have the same rights that we had.”

Richard Loving never spoke publicly about this issue; he was killed by a drunken driver in 1975.

But Mildred Loving, a year before her death in 2008, expressed support for same-sex marriage in an essay she wrote on the 40th anniversary of Loving v. Virginia.

“I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry,” she wrote. “Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.”

And Cohen, the attorney who helped the Lovings obtain legal recognition of their marriage, said he believed the decision of the lower courts to strike down state bans on gay marriage was in the spirit of the Loving case.

“I thought it was correct and late, but better late than never,” he said. “I’m hopeful that the majority of the Supreme Court will rule the same way.”

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