40 Years of Loving

Today is the 40th anniversary of the charmingly named Loving v. Virginia, the Supreme Court verdict that struck down state laws against interracial marriage. The case involved Richard and Mildred Loving, who married in 1958 in Washington, DC, where their marriage was legal, but then moved to Virginia, where interracial unions were a crime punishable by up to a year in jail. They were convicted, but spared jail and instead banished from Virginia for 25 years by trial judge Leon Bazile. Yes, banished. How medieval. The ACLU and the NAACP took up the case and pushed it to the Supreme Court, where a unanimous decision struck down the Virginia law and the laws of 16 other states still clinging to state-sanctioned discrimination (although South Carolina and Alabama held on to their unenforceable laws until just a few years ago).

In some ways it’s hard to believe that within my lifetime, such marriages were illegal in many states. In other ways, it’s not hard to believe at all.

It’s not hard to believe that a judge could use the Bible to justify discrimination, as in Judge Bazile’s infamous quote:

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.

It’s not hard to believe that those standing for discrimination would use the argument, “this is the way it’s always been.” What is interesting is that, when you look at very cool interactive map on the Lovingday.org site, that it hasn’t “always been.” When you click through the years, you can see the fluctuations in history, the various waves of discriminatory legislation. Not surprisingly, one of the high (or should it be low?) points of discriminatory state laws was during Reconstruction. But then the number of states banning interracial marriage decreased, until it rose up again in the 20s, 30s, and 40s, with more states adding such restrictions.

Discrimination in this country isn’t just a matter of following tradition, keeping things the “way it’s always been.” Sometimes it is an active attempt to restrict rights that were present before.

Chief Justice Warren, speaking for the unanimous court, cut through all the arguments that attempted to explain away miscegenation laws as anything but racist. In his statement, he writes,

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.”

I’d love to feel assured that racial discrimination is still “odious to a free people,” but sometimes I fear we’re in another one of those downswings in history, where rights and equality won and celebrated by previous generations are threatened again.

Warren’s conclusion is still timely today:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). 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 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 Loving case is obviously extremely relevant in today’s battle for marriage equality. It’s important to remember, however, that the battles are not the same. There are some central elements in the earlier case that are not present in the fight for LGBT equality, and vice versa. For example, a driving force behind the miscegenation laws, obvious in the name itself, is the quest for “racial purity.” Virginia based its decision on the 1955 Naim v Naim case, but Warren bluntly calls the Naim precedent for what it is:

In Naim, the state court concluded that the State’s legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride,” obviously an endorsement of the doctrine of White Supremacy.

There are many other elements of the Loving case that are specific to the struggle for racial equality, but there are also many things we can learn from it in today’s struggle for LGBT equality.

Some of the biggest similarities I see are in the strategies used to defend discriminatory laws. For example, the state of Virginia argued that it was up to the states to determine who they would allow to marry (an argument many of our Democratic leaders are still making today). With the Loving case, it’s easy to see why this cannot be left as a state issue. When the Lovings can be a happily and legally married couple in DC, and then become felons when they move across the river into Virginia, it’s not a workable system. It might do our Democratic candidates for President well to read the Loving verdict and question which side of the case they want to be echoing.

One of the other arguments opponents of marriage equality give is that people need to be patient, to wait until everyone is ready, to not get in people’s faces. Do you think miscegenation laws would have been struck down when they were if people had been patient and waited? No. The Loving case was pushed to the Supreme Court by the ACLU (sorry, Jerry Falwell) and the NAACP. Sometimes the fight for equality requires one to make waves, to push, to get in faces. If we waited for every American to get “comfortable” with the idea of Richard and Mildred Loving as a couple, well, we’d still be waiting.

We have, I hope, grown a lot as a country since the Loving case. 40 years later, it’s hard for some of us to imagine a world in which people could go to jail for getting married. But sadly, it’s not difficult to imagine discrimination, prejudice, and inequality. They’re still all too present. A court case cannot end them, although it can make a start.

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