Monday, May 12, 2008

In Memory of Loving

Mildred Loving died May 2 at age 68. She was the part American Indian (how she preferred to identify herself), part black woman married to a white man, Richard Loving, whose case went to the Supreme Court in 1967. In their unanimous decision the court struck down laws that banned interracial marriage in Virginia and at least 16 other states. At the time of their marriage in 1958, at least 22 states had miscegenation laws. When Barack Obama’s parents wed in Hawaii in 1960, their marriage would have been illegal in those same 22 states.

The case is cited by the most appropriate name I’ve ever seen for any Supreme Court decision, Loving v. Virginia. These two people loved each other and wanted to be married, and the Commonwealth of Virginia arrested them because of that. Virginia hasn’t always been for lovers.

The decision required that Virginia and any other state recognize the marriage of two adults, regardless of race, provided they met other legal requirements. The decision also did not require that any church, synagogue, or other religious organization perform interracial marriages, only that the states couldn’t deny them.

This case is relevant today not only because it made possible the marriage of a current Supreme Court justice (Clarence Thomas), but also because it provides the basis for courts to overturn bans on gay marriage. Even though Virginia law allowed Richard Loving to marry a white woman and Mildred Jeter to marry a black man, banning them from marrying each other based on race violated the equal protection and due process clauses of the fourteenth amendment.

The same logic applies to the case of gay marriage. A marriage is a contract between two adults entered freely. It is recognized by the state and provides privileges and imposes responsibilities. For the state to restrict the contract to one man and one woman rather than two men or two women, the same test should be applied that was used in Loving v. Virginia. It is not up to the state to protect the “sanctity (synonym, holiness) of marriage.” Any holiness is defined and conferred in a religious ceremony by a religious organization.

Mildred Loving was very quiet and did not expect her case to go to the Supreme Court. She wrote a letter to Attorney General Robert Kennedy in 1963 and he passed it along to the ACLU. Last year, on the 40th anniversary of the decision, she issued a statement urging that gay couples be allowed to marry.

Note that it took over 100 years for the Supreme Court to apply the fourteenth amendment to anti-miscegenation laws. One hundred years of tradition of anti-miscegenation laws was not reason enough and prejudice was not reason enough to uphold the practice. Nor should it be the case with same-sex marriage.

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1 comment:

Elrond Hubbard said...

Excellent post!