Happy Anniversary, Or, A Bit Of Deja Vu

Yesterday was the anniversary of Loving v. Virginia, the 1967 Scotus case which struck down state laws, like Alabama’s, prohibiting interracial marriages. Chief Justice Warren concluded in Loving:

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 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.

There are significant differences between the statutes at issue in Loving and today’s laws prohibiting gay marriage, but I think some of the state’s arguments in Loving sound familiar.

The Virginia trial court gives us the God talk:

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.

The Virginia Supreme Court relied on one of its precedents, Naim v. Naim, to supply the rest of these arguments.

Anti-miscegenation laws protected marriage.

Marriage is a . . . domestic relation having to do with the morals and civilization of a people. It is an essential institution in every well organized society. It affects in a vital manner public welfare, and its control and regulation is a matter of domestic concern within each state. . . . . [W]ithin the range of permissible adoption of policies deemed to be promotive of the welfare of society as well as the individual members thereof, a state is empowered to forbid marriages between persons of African descent and persons of other races or descents.

The laws were perfectly fine because everyone had always had them.

There can be no doubt as to the power of every country to make laws regulating the marriage of its own subjects; to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying. The right to regulate the institution of marriage; to classify the parties and persons who may lawfully marry; to dissolve the relation by divorce; and to impose such restraints upon the relation as the laws of God, and the laws of propriety, morality and social order demand, has been exercised by all civilized governments in all ages of the world.

it is considered as well settled that although miscegenation statutes have been persistently attacked on the ground that they are violative of the United States Constitution, they nevertheless constitute a proper exercise of the power of each state to control its own citizens. More than half of the States of the Union have miscegenation statutes. With only one exception they have been upheld in an unbroken line of decisions in every State in which it has been charged that they violate the Fourteenth Amendment.

The authors of the Fourteenth Amendment did not intend to prohibit anti-miscegenation laws.

 

The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color.
 

Brown v. Board of Education,. . . reached its conclusion that segregation in the public schools was contrary to the Equal Protection clause on the basis that education is perhaps the most important function of State and local governments, 'the very foundation of good citizenship,' and that the opportunity to acquire it, 'where the state has undertaken to provide it, is a right which must be made available to all on equal terms.' No such claim for the intermarriage of the races could be supported.

 

This was not discrimination; but a recognition of natural laws.

 

the question was one of difference between the races, not of superiority or inferiority, and that the natural law which forbids their intermarriage and the social amalgamation which leads to a corruption of races is as clearly divine as that which imparted to them different natures.

The Virginia court begged the question.  

that the preservation of racial integrity is the unquestioned policy of this State, and that it is sound and wholesome, cannot be gainsaid.

The world would end without the anti-miscegenation laws. 

The institution of marriage has from time immemorial been considered a proper subject for State regulation in the interest of the public health, morals and welfare, to the end that family life, a relation basic and vital to the permanence of the State, may be maintained in accordance with established tradition and culture and in furtherance of the physical, moral and spiritual well-being of its citizens. . . . Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.

Of course, there is one big difference. Some of today’s marriage supporters are more than willing to surrender state control of marriage to the federal government. To that, Virginia said: 

The right, in the states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the states suffer or permit any interference therewith. If the federal government can determine who may marry in a state, there is no limit to its power.

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One Comment on “Happy Anniversary, Or, A Bit Of Deja Vu”


  1. […] weren’t an anomaly, either. Cristian racism drove the laws of the day. Consider the ideas justifying things like anti-miscegenation laws: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate […]


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