Law & the Courts

What’s Loving Got to Do with It? Gay-Marriage Supporters Misuse a Precedent

Mildred and Richard Loving after their Supreme Court win in 1967 (Francis Miller/Getty)

In the same-sex-marriage case recently argued in the Supreme Court, the petitioners have claimed a “fundamental right to marry” protected by the Constitution and unmoored from biology, the complementarity of the sexes, or the universal understanding of what “marriage” has meant in every culture in human history until the last 15 years. Their most persistent and compelling comparison of their legal situation has been to the laws that once banned interracial marriage in many states, until they were overturned by the Supreme Court 48 years ago in Loving v. Virginia. But a closer look at that precedent reveals that it is no help at all to their case — quite the contrary. And the advocates of same-sex marriage are deluding themselves if they think that a judicial victory for their side would be widely greeted as a triumph for justice, as the Loving decision was.

As Robert P. George and Ryan T. Anderson, among others, have pointed out, America’s shameful record of “anti-miscegenation” laws is a historical anomaly. Rooted in slavery and codified during the Jim Crow era after the Civil War, legal prohibitions on interracial marriage spread ultimately to 30 states by the second quarter of the 20th century. These laws had nothing as such to do with defining marriage or regulating what was a legitimate marital union. They had everything — and only — to do with paranoid racial theories entertained by a white power elite obsessed with the “purity” of their own race.

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Consider the law struck down in Loving – Virginia’s Racial Integrity Act, passed at the same session in 1924 as another on “sexual sterilization of inmates of state institutions,” upheld by the Supreme Court in its 1927 Buck v. Bell ruling. These laws were of a piece in their eugenic purpose of maintaining white supremacy; the Racial Integrity Act forbade the marriage of “any white person” with someone of another race, defining “white person” as one “who has no trace whatsoever of any blood other than Caucasian.” Such marriages were declared void without need of a divorce or any other process; the parties to the marriage were guilty of a criminal offense, as was anyone who solemnized their union; out-of-state interracial marriages were subject to the same strictures for any Virginia resident; and cohabitation and extramarital sex across racial lines were forbidden.

When states began in the 1990s and 2000s to legislate the man–woman definition of marriage, it was to protect the conjugal meaning from redefinition by culture warriors and judicial activists.

Clearly the makers of these laws understood that marriage was naturally possible for interracial couples. Ironically, these laws were premised exactly on a recognition of childbearing’s centrality to the meaning of marriage; they were all about “mongrelization” and the “amalgamation” of the races. The Supreme Court that struck them down recognized them as a white-supremacist intrusion on a fundamental right to marry of couples who could marry, and who would marry if the law let them alone.

Contrast this with the “bans” on same-sex marriage enacted by many states in the past two decades. They actually prohibit nothing on the part of same-sex couples — forestalling only state recognition of their relationships as marriages. No act is criminalized, and no relationships of adults with each other or with children are targeted for disruption.

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In our entire legal history, no one bothered to legislate a restriction of marriage to sexually complementary couples until the day before yesterday because everyone understood what “marriage” meant and would (if asked) have thought it naturally impossible for two men or two women to marry. No injustice to anyone was ever the intent or purpose of American marriage laws where same-sex couples are concerned — in stark contrast to the purposeful Jim Crow attack on men and women of different races. When states began in the 1990s and 2000s to legislate the man–woman definition of marriage, it was to protect the conjugal meaning from redefinition by culture warriors and judicial activists — not to interfere with marriages everyone recognized as actual ones but wished to prevent for the sake of a racist ideology. And this time the law’s salute to children’s centrality to marriage was embodied merely in the elementary recognition that the institution should be restricted to those who can be mother and father to a family built on their union.


Consider next the circumstances of the legal challenge to the Jim Crow anti-miscegenation laws. From a peak of 30 states with such laws in the 1920s and ’30s, the number declined to just 16 states by the time of the Loving case, only one of those states (California) doing away with its law by a judicial decree. After Brown v. Board of Education, the struggles of the civil-rights movement, and the passage of the federal Civil Rights and Voting Rights Acts, the Loving case can be viewed as a mopping-up operation to fulfill the long-frustrated promise of the Reconstruction amendments and Lincoln’s new birth of freedom. Make no mistake: The remaining anti-miscegenation laws still had a lot of social inertia backing them in 1960s white America, where sentiment against interracial marriage ran high. But the legal prohibitions were already an embarrassment even to their residual supporters. As Peggy Pascoe notes in her 2009 history What Comes Naturally, only one state — North Carolina — submitted an amicus brief in support of Virginia’s defense of its law in the Supreme Court.

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When the Loving case was argued, Chief Justice Earl Warren had no trouble forging a unanimous front on the part of the justices. This was an easy case, made still easier by the Court’s 1964 reversal of an 1883 precedent in which it had permitted states to punish interracial adultery and fornication more severely than the same offenses when committed by persons of the same race. Speaking for eight of the nine justices (Justice Potter Stewart wrote a narrowly grounded one-paragraph concurrence in the judgment), Warren got the job done in just eleven pages, declaring that there was “no legitimate overriding purpose” to a law that interfered with ordinary marital relations simply “to maintain White Supremacy.” His last and most decisive word was this:

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.

The governing presumption here that couples should be free to marry who can marry — because they are legally and naturally able to do so in every other way but the irrelevant one of their race — could not be plainer.

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Suffice it to say that if the justices invent a constitutional right of same-sex marriage, they will have to work a good deal harder to justify it than this. Thirty-plus states whose protections of conjugal marriage are threatened by such a ruling are waiting to discover whether laws of recent vintage, passed as measures of defense against culture-war aggression — not outmoded old laws of racial aggression — will survive the modern Supreme Court’s creativity. Many states have weighed in with amicus briefs arguing for the preservation of their people’s right of self-government. So have scores of prominent religious leaders, academics, legal scholars, and other opinion leaders — the sort of people conspicuously missing from the defense of Jim Crow marriage laws a half century ago. All told there are about 100 amicus briefs in the same-sex-marriage case, with almost equal numbers on the two sides.

Only the elite cultural power of the gay-rights movement, and a deepening confusion about the meaning of marriage, have made all the difference this time.

There will be no eleven pages for a unanimous Court this time. We can expect ten or 20 times that many pages, in multiple opinions from a deeply divided bench. It is true that this great spilling of ink will happen no matter which party is victorious. But only in an age riven by ideology, dishonesty, and a struggle to rearrange the moral furniture in people’s heads could it require more than Warren’s few pages to turn aside the transparently politicized absurdity of a claim to a constitutional “right” of same-sex marriage. The Minnesota supreme court in 1971 took just five pages to dispose of the first such claim in a court of law, only four years after Loving – and the following year the high court in Washington dismissed a petition for review of that state ruling, with prejudice, “for want of a substantial federal question.” Nothing about the Constitution has changed in the meantime. Only the elite cultural power of the gay-rights movement, and a deepening confusion about the meaning of marriage, have made all the difference this time. Whether this will suffice to prompt a nakedly political decision, clothed in a hundred pages of legal jargon, is what the country waits to discover in June.


Consider finally the aftermath of Loving, and the very different future that awaits us if the justices rewrite both the Constitution and the definition of marriage. As Pascoe relates in her history, there was some initial resistance to the Loving decision in southern states. But it was certainly not the “massive resistance” that had greeted the Brown ruling in some quarters a decade earlier, and it collapsed with gratifying speed. Within a year or two, state after state complied with the constitutional requirement to permit interracial couples to marry, and most states even went the legally gratuitous extra mile of expunging the old embarrassments — dead letters already — from their law codes. Within a generation, Pascoe notes, the country had put the shame of anti-miscegenation laws so far behind itself that it was hard for many Americans to remember they’d ever existed, let alone how widespread the racial ideology had once been in its grip on the law. Today, discussing legal bans on interracial marriage with college students is like explaining a party-line telephone. It’s all eye rolls and disbelief.

The model for what awaits us if the Court gets this easy question wrong is not Loving v. Virginia, but Roe v. Wade.

Why such a sudden implosion of a legal regime that had been in place for decades in a large portion of the country? First, the Loving decision put a period to the last sentence of official segregation in American law. The ruling looks effortless and natural now, and it probably came fairly easily then, only because of a long prior struggle to overcome official racism stretching back into antebellum history. The American people were thus already prepared to repudiate the vestigial legacy of old injustices and put them forever behind them. Second, there was therefore no constituency, no prominent elite, and, perhaps most important, no religious leadership willing to fight for maintenance of the old laws. No leaders, no spokesmen, no followers — the 19th-century eugenic innovation of “miscegenation” was as dead as a doornail overnight.

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If the partisans of judicially imposed same-sex marriage think a ruling in its favor will be as triumphant as Loving was, they are deluding themselves. Such a ruling would not vindicate the ancient idea of marriage, shedding a repugnant distortion of it adopted for narrow, prejudicial reasons. It would be a flagrant innovation, a redefinition of marriage by judicial fiat, not the last defeat of exhausted ideologues but the first broadside in a new phase of the culture war, its grapeshot indiscriminately wounding marriage as an institution, the welfare of children, the rule of law, and the freedom of Americans to live and act according to their religiously informed consciences.

#related#The model for what awaits us if the Court gets this easy question wrong is not Loving v. Virginia, but Roe v. Wade. The New York Times claimed the day after Roe that the decision was a “historic resolution of a fiercely controversial issue.” This is by now a grim joke, since Roe resolved nothing and only made the controversy fiercer. Given the high respect paid to pronouncements of the Supreme Court (an unaccountable phenomenon to those of us who study it for a living), a drop in support for the traditional meaning of marriage would be no surprise after a decision to redefine it. And young people in particular, more thoroughly marinated than their elders in the moral fashions of the day, already accept same-sex marriage in high proportions. It is easily forgotten, however, that Roe too was followed by a brief burst of support, especially among the young. But the mockery Roe made of the Constitution, the ideological tyrannies it inspired, and most of all the very real horrors of its effects have caused it to be viewed increasingly as the Dred Scott of our times, and pro-life sentiment has grown.

A Supreme Court diktat removing the central pillar of sexual complementarity from the law of marriage would not be a logical extension of Loving, or go down in history as a happy or easy victory over bigotry. The cascade of bad effects, legal and sociological, would come rolling in for years to come. Leaders of the conservative religious communities in America would stand fast, for freedom and for family. Each new generation would witness the consequences, and the merits of the historic understanding of marriage would over time recover their rightful place in the public mind. If the justices want to bring on this needless struggle and sacrifice their own legitimacy in the process — again — they know just what to do.

— Matthew J. Franck is the director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J. This article first was published in the June 1, 2015, issue of National Review.

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