These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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. — Loving v. Virginia (1967)
Linus mentioned Loving v. Virginia in his post about marriage equality, but I think it’s important to remember exactly what this remarkable case shows us about the power and importance of American jurisprudence. Read the words of Warren’s close of Loving’s majority opinion again. The Warren Court’s opinion of the essentiality of marriage as a fundamental human right stands as the most stark statement of the place marriage holds in our culture, sometimes to our detriment. It is also a statement of what is right in the face of what is popular, an often-difficult distinction to make. As I noted in my comment on Linus’ post, at the time of the ruling, 73% of Americans disapproved of interracial marriage, and that number would remain over 50% until fully 15 years after the ruling. (Keep in mind that this is much higher disapproval than current disapproval ratings of same-sex marriage.)
Nevertheless, reading Loving and the reasoning of the court, it is difficult to see exactly why courts today are unwilling to uphold the ruling as precedent for same-sex marriage. For instance, in the most high-profile case to use Loving, the New York Court of Appeals ruled against the plaintiffs on Hernandez v. Robles, stating:
Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn. If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice—if we agreed with plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial{**7 NY3d at 361} marriage that was plainly “designed to maintain White Supremacy” (id. at 11)—we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving.
It seems likely that one could find a similar legalized hatred and bigotry towards homosexuals had existed in sodomy laws, but that’s beside the point.
The point is that the logic of the Loving case resides in its determination that the Equal Protection clause of the Fourteenth Amendment is not fulfilled simply because both whites and non-whites are equally punished under the interracial marriage law. Warren rightly eviscerates this argument:
The State finds support for its “equal application” theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated “Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.” As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.[emphasis mine]
If one needed proof of the arbitrary and invidious discrimination present in the constitutional amendments to ban marriage equality, one need look no further than the backwards referenda being pushed throughout the states targeting same-sex couples.
If it is not eminently clear that the specific prohibition of same-sex marriage constitutes anything other than “arbitrary and invidious discrimination,” I don’t know what does. If marriage, one of the “basic rights of man,” is denied to a specific group of individuals, the most basic tenet of Loving has been thrown out the window:
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.
Perhaps the most remarkable element of this particular decision, however, is the vote. It was unanimous. All nine Justices voted in favor of the plaintiffs in Loving. Even Hugo Black, a Southern Democrat who couldn’t stomach Tinker v. Des Moines, ruled in favor of the plaintiffs.
One wonders whether the justices today would have the fortitude to do the same. I doubt it.
Loving stands as a testament to the best that American legal thought has to offer — a reminder that although our country has not always governed and legislated by the ideals laid out in its foundational documents, we do try our best to correct the errors of our ways. I hope it is used as precedent in a new case of marriage equality soon.
