Loving v. Virginia

Monday 1 March 2004This is more than 19 years old. Be careful.

In all the debate about gay marriage, a common refrain heard from opponents is that the definition of marriage has been the same for centuries if not millennia. Not so. The fact is, the current rules about who can be married have been in place (in some states) for less than 40 years.

In 1967, the U.S. Supreme Court ruled unanimously in Loving v. Virginia that state laws prohibiting marriage between the races were unconstitutional. At the time, 16 states still had such laws on their books. Among whites, especially in the south, these laws were supported by majority opinion.

In joining the decision, Justice Stewart wrote:

It is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.

If you change “race” to “gender”, doesn’t the same principle apply?

I have heard commentators claim that a lack of gay marriage is not discrimination against gays, since each of them is allowed to marry, so long as it is someone of the opposite sex. If you believe this, please explain how your view relates to the Loving decision.

For more on Loving v. Virginia:

  1. Loving v. Virginia at Thirty
  2. Oyez has audio of the arguments. Very cool.


You're really riding this Marriage Amendment hobbyhorse, eh Ned? It is not really an issue that I get torqued about, but it seems to me that the proposal that there be an amendment to the constitution is just a reaction to several facts:
1.) that the Mass SJC assumed extra-constitutional powers for itself and directed the legislature to enact a law, which is illegal. If there were any justice in the world or Republicans in the Mass legislature, they would simply slap the shit out of the SJC and tell them to go back to their holes. The legislature writes the laws, the executive signs the laws and the Judiciary upholds the laws. Nothing else.

2.) The mayor of San Francisco is illegally marrying same-sex couples. If you think that it is "OK" to break the law just because in your opinion it is "the right thing to do", well, then you don't deserve to live in a country that is ruled by law. That the mob is gay and stylishly dressed does not make the mob-rule any prettier. If there was any justice in the world (or any Republicans in the CA legislature), they would remove Newsome from his office as mayor, arrest him for flagrantly violating the law and see him at trial

That there is no will (or there is outright complicity) is the reason that the current administration is forced to seek relief via a constitutional amendment. The Defense of Marriage Act is likely unconstitutional under the "full faith and credit clause" of the US Constitution. So, gay marriage in one state forces gay marriage all other states. The only remedy is a full constitutional amendment defining marriage as "the union of a man and a woman". Nothing more need be said, allowing for unfettered civil unions.

The amendment process is slow and painful, so this can hardly be described as "taking the easy road".

Is this a potential political winner for Bush? Sure is. The Republicans are united on this issue (some of us for reasons other than opposition to homosexuality) and Democrats are split. Wedge issue! But let's not pretend that this was a Republican idea. If Kerry loses in November and this was a major issue, Kerry can give the "Ralph Nader" prize to ... er Ralph Nader and also to the Mass SJC and also to the ignoramous mayor of SF.
Actually, the Mass SJC did not direct the legislature to enact a law. To quote from the opinion:

We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.

The court was interpreting the state constitution, which is its job.

Calling the celebrants in San Francisco a "mob" seems a bit of a stretch to me. Would you label MLK's and Gandhi's actions "mob rule"? There's a long tradition of civil disobedience, much of which has brought about change for the good.
But then the legislature came back with full civil unions. Result: No way, says the SJC. This is known in certain circles as "legislating from the bench". That the SJC doesn't write the law is irrelevant, that they constrain the writers of the law to the exact wording of the law means they are writing it.

If MLK or Ghandi broke the law in their pursuits, then yes, it was mob rule. I believe that laws should be followed. If the laws are wrong then it is the duty of The People to elect legislators to change the law. Simply declaring a law that you don't like "irrelevant" is contrary to the democratic process and is simply illegal.

I somehow think that if I were to practice similar "civil disobedience" and decided to manufacture full-automatic weapons in my basement simply because I find that the GCA '34 was "irrelevant" due to protections held in the Constitution (the Second Amendment: its in there, look it up), there might be some folks that want to have a word with me and I will wager that you, and folks of a like mind would not be standing up for my right to "civil disobedience". And they and you would be right. A law is a law. If I want it changed then I need to work for changes inside the democratic process.

Oh, as a shortcircuit of your next move, my creation of full-autos is also a "victimless crime", since I will be keeping them for myself.
The courts are called upon to interpret the law. Part of that job means interpreting the lesser laws (statutes) in terms of the greater laws (state or federal constitution). Sometimes this puts them at odds with the legislature. Ascribing other motives to the judges involved is disingenous unless you have evidence.
Actually Andrew, the legislature asked the SJC for a quick assessment of what the constitutionality of civil unions would be, and the SJC interpreted the constitution for them. Again, that's their job. It may well be that the legislature has very little room to manuever here. Blame John Adams for writing such a sweeping constitution, not the SJC for interpreting it.

As to mob rule, I suspect you were in favor of it in the case of the Boston Tea Party. We each support it in proportion to our sympathy with the protesters. The whole point of civil disobedience is to make a visible protest against unjust laws, and to test those laws. Citizen vs. law, who will win?

I suspect you are right about the response you'd encounter to manufacturing weapons. You would be challenging a law that has broad support. I'm not saying anything goes. I'm saying citizens may act, then authorities react. Sometimes citizens break laws, and win.
FWIW, if "broad support" is the sole indicator as to whether a particular law should be flouted, then the 38 states that currently have gay-marriage-banning laws should be an indicator. In most states, gay marriage is against the law and broadly unpopular.

Do you want to amend your statement to say that only unpopular and politically incorrect laws are subject to contravention via mob rule? I think that might encapsulate the logic...
To get back to the topic of the post, when the first state allowed mixed-race marriages, how many states still had laws against them, and what was the popular sentiment supporting them? Sometimes change happens despite the majority.

Sometimes the role of judges is precisely to do what the majority does not want. After all, if they always simply followed the majority, what would we need them for?
Yes, I concede your basic premise that sometimes popular laws which are violative of Constitutional rights are overturned by the judiciary. Such was the case in mixed-race marriages (although I fail to see how a marriage is a "right").

It has been shown via Roe v. Wade that laws that are imposed via judicial fiat (such as the imaginary "right of privacy" that begat the imaginary "right to kill your kid" in Roe) rather than through the Constitutionally mandated method (where Congress makes the law, etc) the divisiveness continues into perpetuity. Consider the words of that liberal stalwart Ruth Bader Ginsburg discussing the many flaws of Roe, "[Roe] tried to lead, rather than follow, a social revolution. It therefore created a long and harmful backlash to women’s rights."

You can see the same thing happening here. Had the proponents of gay marriage gone the legislative route, in scant few years it would have been a reality. However, a few grandstanders have created an atmosphere where a social backlash is almost a certainty. And gay marriage will be the worse off for it.
Hey, just my two cents...

Andrew, you mentioned that you don't think that marriage is a "right". "Right" or no, it is legal. As such, "equal treatment under the law, regardless of race, creed color or gender" would invalidate any ban on same-sex marriage.

You also mention that Civil Disobedience can be counter-productive. True. But that doesn't make them wrong. And it's hard to respect your reverence for "the legislative route" when the President's response to their action is to try to make homophobia a primary principle of our nation.

This is a classic example of Civil Disobedience: they broke the law, in plain view of the world, nobody got hurt, and it set the legal machinery in motion to resolve the issue. Bravo. If the Mayor gets sacked for this, I'll be the first in line to slice off a piece of my paycheck to support him and his family while he gets his speaking tour together.
Well, Andrew, I may agree with you on your assessment of the likely outcome of the recent gay marriage headlines. I fear there will be a social backlash, though I'm not sure it will put an end to the issue. I don't think the constitutional amendments will succeed, and the U.S. Constitution requires that the states respect each others' laws. It'll be interesting to see what transpires...
Hrm. Andrew, your most recent post seems to indicate that you consider Roe v. Wade to be more closely related to the gay marriage issue than Ned's original reference to Loving v. Virginia. I'm afraid I don't follow the logic, if so.

Loving refers to legislative processes run amok, violating the constitutional rights of minorities via the mandate of the popular majority. Roe is more complicated, because there are conflicting rights in question - the mother's and the unborn child's. Anybody who thinks the answer to the abortion question is simple isn't paying attention. If one believes in the rights of the child over the mother, what does one do when the mother's health is at risk? How does one decide how much risk the mother is required to shoulder before the abortion becomes legal? If one believes the rights of the child do not begin until it is truly a person, how does one decide *when* a fetus becomes a child? Medical science is pushing the limits of the 'survivability' doctrine (where the fetus becomes a baby when it can survive outside the mother's body) every year. I'm not going to claim to have all the answers about abortion (or ANY of them, truly). It's an incredibly difficult question. I don't want to debate Roe v. Wade per se, because that's off-topic - I only raise these issues in an attempt to illustrate the questionable nature of its relevance to Loving v. Virginia and the gay marriage debate.

As for the claim that the legislative route would have paid off in a few years, speaking as someone living in Massachusetts - the supposedly most liberal state in the country - I've watched my state legislature debate a constitutional amendment banning same-sex marriage. Those who don't oppose gay marriage outright claim to want to "let the people vote" - as if such matters belong in a general election. The majority, even in MA, isn't comfortable with gay marriage. But sometimes the majority is *wrong*. The majority was wrong about mixed-race marriage, and the majority is wrong about same-sex marriage. Letting people vote (or legislate) bigotry into our constitution is no more valid when the minority is stylishly dressed than it was when they were well tanned.

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