Loving v. Virginia, 1967

Mildred and Richard Loving

Laws that tell us who we can and can’t marry have existed long before the same-sex marriage issue even entered people’s minds.  Mildred and Richard Loving, a Virginia couple in the 1960s, married in DC in order to avoid the ban on interracial marriage in Virginia.  Not only did VA laws nullify interracial marriage and make it impossible to begin with, there was also a provision that treated any attempt to marry in another state a criminal offense.  Police officers burst into the couple’s home trying to catch them in the act of having sex, since interracial sex was also a crime at the time, needless to say.

In Loving v. Virginia in 1967, the Supreme Court finally overturned Virginia’s earlier statutes against interracial marriage on the grounds that they violated the due process and equal protection clauses of the Fourteenth Amendment.

The Court concluded that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

Hallelujah, here’s a solid precedent for same-sex marriage, right?  Freedom to marry as an essential right set forth in the Declaration?  Not so.  As some New Yorkers may remember, the New York Court of Appeals ruled in 2006 against using the Loving v. Virginia case a basis for same-sex marriage because the Supreme Court had stated in their ruling that marriage is “fundamental” to “existence and survival”, which points to procreation as the foundation of marriage.

Hmm.  So I guess love isn’t the basis of marriage, but making babies.  Shouldn’t proponents of heterosexual marriages then direct as much attention to married couples who choose not to have children?

The more I read about law in the United States, the more I see its power and its limits in expanding civil rights and creating a more just society.  Dockets are built slowly over the course of years and even decades.  It’s a fundamentally conservative process – an English litigator from the 17th century would probably be able to follow trial procedures that happen today.  A never-ending debate that occurs via incremental battles, and so many that the public are never aware of.

It was only in 2000 that Alabama amended their organic law through referendum to remove the ban on interracial marriage.  Jesus.  The dark days weren’t that long ago.  What was once taken for granted just a few decades ago is now morally reprehensible and backward, and only then through the back-breaking work of civil rights activists and all their supporters.  It makes me wonder what we’re doing now that our grandchildren will look back on and wish we had done differently.

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