Loving At 44

Forty-four years ago today, the U.S. Supreme Court announced its decision in the famous case of Loving v. Virginia (1967) 388 U.S. 1.  At the time, sixteen states outlawed interracial marriages. But on June 2, 1958, the 24-year-old Richard Loving and his sweetheart, 18-year-old Mildred Delores Jeter, got married. They had to go to Washington, D.C., to do it, because the Virginia’s anti-miscegenation law, the “Racial Integrity Act of 1924”, prohibited the issuance of a marriage license to the white Richard and the mixed-race (today we would say she was part African-American and part Native American; back then she was “colored”) Mildred. Leaving the state to obtain a marriage license was a separate crime. Being of a difference race than your consensual sex partner was yet another separate crime.

The Lovings‘ battle continues to this day. Their story is worth a moment’s reflection.

Both were from the small town of Central Point, Virginia. There was apparently some urgency to their desire to get married, as Mildred was pregnant. A little bit over a month after returning home, they were subject to a raid by police hoping to find them engaged in sex (which was a separate crime); they did not but they did find the marriage license. They pled guilty to being married and guilty to having gone to Washington, D.C. to get married. The judge sentenced them to, effectively, banishment from Virginia, by way of sentencing them to one year of prison time, suspended for twenty-five years on the condition that they not return to Virginia.* They moved to Washington, D.C., and challenged their convictions. Ultimately, they won and anti-miscegenation laws were found unconstitutional, although the last such law was not formally repealed until 2000 (By a 60%-40% margin resulting from an Alabama state referendum).

After the furor of their lawsuit died down, they moved to Milford, Virginia, another town about twenty minutes away from Central Point, where Richard found work, and they raised their children and lived their lives. On June 29, 1975, the Lovings’ car was hit by a drunk driver. Richard Loving died as a result, aged 41 years. He and Mildred had been married seventeen years and had three children. Mildred survived the crash, but lost an eye, and finished raising their three kids, who went on to present grandchildren and ultimately great-granchildren to their adoring mother. That’s the hand that life dealt them.

To commemorate the fortieth anniversary of the momentous decision, four years ago today, Mildred Loving, not a woman who had ever enjoyed the spotlight, wrote a statement:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Mildred Loving died on May 2, 2008. Richard died too young and the couple should never have been hassled about their marriage in the first place. Mildred always insisted that for her, the fight was not about a great cause of equality or fundamental rights; to her, it was a fight about love, and love won.

But of course it was a fight of love versus hate. The Supreme Court made that abundantly clear in its decision:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. 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 discrimination. 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. … [¶] 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.

Today, we continue as a society to confront the question of whether the above passage applies, mutatis mutandis, to the question of whether two people of the same gender can also be married. In 1973, the same Supreme Court that wrote the stirring words of Loving v. Virgnia dismissed the concept of same-sex marriage as unworthy of serious intellectual consideration. But times have changed and for the first time since polling on the issue began, it appears that a growing trend has passed an important milepost, as a majority of Americans now support the concept of same-sex marriage rights.

It has always been apparent to me that the bans on same-sex marriages serve no purpose whatsoever. I admit that there was a time that the idea that two men or two women might want to marry one another was simply alien to my thought, but from the moment I was confronted directly about it, I could think of no good reason that a same-sex marriage should not happen and continue to believe that today. I know two married same-sex couples, and actively socialize with one of those two couples. I can identify no appreciable difference between them and any other childless couple in my social network.

Tomorrow, (June 13), at 9:00 a.m., a hearing will be held regarding the challenge to Proposition 8. The proponents of Proposition will ask that the court vacate its judgment striking Proposition 8 down as unconstititonal. The argument is based on the idea that the judge who tried the case has now admitted that he is in a same-sex relationship and therefore was biased in making his ruling — if this theory is right, a gay man’s desire to marry the man he loves renders him unable to approach the issue of same-sex marriage without bias and prejudicial emotion.

Prejudiced against whom, I have to wonder. That the argument here is the same as suggesting that an African-American judge ought not hear a case challenging the constitutionality of the Civil Rights Act, or than a woman judge could not entertain a claim that the Fourteenth Amendment was never intended to apply to claims of gender discrimination, or that an atheist judge could not fairly handle an Establishment Clause case. If the maker of such an argument would shrink from making that sort of a claim to that sort of a judge, that is a signal that the argument suffers from a serious flaw rather than the judge. The challenge to Judge Walker based on his personal life should meet with short shrift from the bench.

Nevertheless, this is the state of the contemporary legal discussion of marriage as an element of our social fabric. No one in America today seriously challenges the idea that people of different races can get married. Those who would memorialize today’s, or more accurately yesterday’s cultural preferences into difficult-to-change laws do so now because they know that the political support for their cause is dropping and will only continue to drop for the foreseeable future. If they are ever going to act, they must do so now.

Euguene Volokh has suggested in the past that the same-sex marriage movement today demonstrates that while ordinarily classified as a logical fallacy, the slippery slope argument has some validity. Those who opposed the Lovings back in the 1960’s argued, “Today, it will be blacks and whites getting married. Tomorrow, it will be the homosexuals. After that, it will be bestiality and polygamy.” And in fact, the arguments in cases like Perry v. Brown do rely on the precedent set in Loving and the arguments made in that case. What I wonder is, “Would that be a bad thing?” In yesterday’s world, same-sex marriage was a nearly unthinkable abomination; in today’s world, it is a real possibility and a subject of serious debate, a debate which the advocates of expanding marriage rights are, however slowly, winning. When the Lovings argued that there was a place in not only the culture but the law for interracial relationships, there was no place at all in the cutlure for gays. But since then, we have found a place in our culture for homosexuals where before there was none; we are finding a place in our culture for durable same-sex relationships.

So if it becomes the case in the future that our descendants find that they can make room in their culture for plural marriages, or even interspecies marriages, shouldn’t we leave those sorts of decisions to future generations to make for themselves? Why do we presume that our view of such things must be permanent?

For now, please take a moment to consider the kinds of social pressures the Lovings faced when they argued, not for the sake of a cause but rather for the sake of their love, that the law and the cultural preferences of a diminishing majority should not stand in the way of their being treated the same as any other couple. The struggle for same-sex marriage is important because it continues that tradition, that cultural struggle, that legal argument, and that political ideal. It couldn’t have been easy for them, but thanks to their efforts, we can have the struggle we have now, and the confidence that in the end, our political, legal, and cultural understanding of equal treatment by the government will ultimately expand rather than contract.

*The trial judge famously linked racism to religion to justify his decision: “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 marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Both advocates and critics of religion should find this equally offensive, albeit for slightly different reasons.