And... Loving It!

We are back to the gay marriage question, and pondering the implications of Loving v. Virginia, the 1967 Supreme Court case striking down laws banning inter-racial marriage. At the risk of creating a straw-man (hmm, accident, or intelligent design?), I will infer from this Boston Globe editorial and this Alan Hirsch article for the LA Times that gay marriage supporters believe that the willingness of the Supreme Court to apply the equal protection concepts of the Fourteenth Amendment to interracial marriage was a good thing, and that a similar appliacation to gay marriages would also be a good thing. Let's turn to Boston for wisdom:

A good model for the case before the SJC is Loving v. Virginia, which ruled almost 40 years ago that bans on interracial marriage are unconstitutional. It may be difficult to imagine a time when interracial marriage was considered an abomination by much of society and was specifically outlawed by many states, just as some day it will be hard to imagine that gay couples were once ostracized simply for trying to form stable families. In Loving, the Supreme Court said that constitutional rights must be vindicated despite a long history of laws to the contrary. So too with the right of same-sex couples to marry.

In this view, the Supreme Court was responsible, rather than activist, and folks fretting about activist courts today should ask themselves how they might have felt about such an activist court back then. I think we can all agree that not many folks are coming forward defending anti-miscegenation laws today.

Nor am I. But is this case really an example of an activist court in action? Let's turn to a Kennedy for more wisdom:

The way that the Supreme Court approached the ban on interracial marriage is a revealing reminder of the cautious manner that the tribunal typically deals with volatile social controversies. It encouraged other lawgivers to lead the way. In 1948 the Supreme Court of California ruled that that state's ban on interracial marriage violated the federal constitution's Equal Protection Clause. Yet, even after having invalidated de jure segregation in public schooling in Brown v. Board of Education, the U.S. Supreme Court was afraid to touch the emotional issue of interracial familial intimacy. In 1955 the Court considered reviewing a conviction under Virginia's ban, but ultimately decided to duck the issue. During the following decade, a dozen states repealed laws prohibiting interracial marriage and the Civil Rights Movement challenged the white supremacist notions from which these prohibitions stemmed. Only near the end of that remarkable era of struggle against racism was the Supreme Court willing to rule on the (un) constitutionality of anti miscegenation laws. In Loving, the Court struck down Virginia's statute on the grounds that it represented merely an "invidious racial discrimination" and that it unjustifiably deprived the defendants of one of the "basic civil rights of man."

Ahh, a court that followed, rather than led! Congress and the Civil Rights Movement had already done the heavy lifting with, for example, the Civil Rights Act of 1964. Public opinion had turned, other than in the South, assuming that non-support equals opposition, or indifference:

A Gallup Poll indicated in 1965 that 42 percent of Northern whites supported bans on inter-racial marriage, as did 72 percent of southern whites.

Hollywood rolled out "Guess Who's Coming To Dinner", and the Court endorsed a sea change in attitudes that was already well underway. Today, although Hollywood is on board with the gay marriage movement, I have yet to see a poll suggesting the public at large is supportive.

As to the opinion itself, it seems to focus on the race-related history of the Fourteenth Amendment. Let's jump in:

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse. In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race....

The Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

Emphasis added. Now, whether defining marriage as a union of a man and a woman is rational, or simply the continuation of a prejudice dating back thousands of years, is something that may be debated. But it is very easy to read "Loving" and take away three ideas - the court was right, the court was not activist, and the opinion does not go very far towards addressing the gay marriage question.

UPDATE: If you can't trust Jay Leno...

Leno noted that in 1967, when the Supreme Court legalized inter-racial marriages, a New York Times poll showed that 80 percent of the American public opposed the action.

If the two polls I have cited are accurate, it is consistent with the notion that process was important to the poll respondents in 1965/67.

Comments

[Brad DeLong]

Don't you mean, "the court was right, the court was not *very* activist"?

Earl Warren did this in 1967 rather than in 1955 in large part because he was a crafty politician, and wanted fire support before he moved.

But you don't want to maintain that it would have been *wrong* for Warren to do Loving v. Virginia in 1955, do you?

:-)

[TM]

But you don't want to maintain that it would have been *wrong* for Warren to do Loving v. Virginia in 1955, do you?

I am reminded why politicians don't address hypotheticals. And I am thinking of the famous quip that the Supreme Court follows the election returns, which is what I would prefer to seeing the court lead them. And now we are back to Florida - man, I am dancing from tree stump to tree stump in the Okefenokee swamp.

[TM]

OK, now I am back, with spring in my step, and a better answer.

I have used the word "wrong" at various points in this discussion, each time acutely aware of how vague a concept it was.

So, intellectually, the main arguments the court offered in 1967 could have been offered in 1955 - in that sense, it would be difficult to argue that the court would have been "wrong" to make the same decision in 1955.

Similarly, the specific moral case seems *roughly* the same, so it could not have been wrong, in that sense, in 1955.

However, two points - the court was hardly turning its back on the civil rights question, having delivered Brown v. Board of Ed in 1954. And, closely related, the court needs to husband its political authority and legitimacy.

If the court had pushed too hard in 1955 (Eisenhower sent troops to Little Rock in 1957 to enforce Brown), it could have created a situation where politicians said "enough". If Eisenhower suddenly couldn't find federal marshalls to, for example, escort the Lovings from jail, then the court would be in a position of issuing a flurry of contempt orders which went ignored.

That would be wrong, as far as advancing a civil rights agenda. And my recollection of Earl Warren is that he was not shy about pushing the system.

Invading France to liberate it from the Germans was "right" in concept; it would have been wrong in 1942.

[John Thacker]

As Clayton Cramer points out, there's also another sense in which the analogy doesn't hold. Virginia's statute, like others, did not merely fail to recognize such marriages; it actively made getting such a marriage elsewhere a felony. It is a significant difference.
(Of course, analogies with laws against polygamy remain uncomfortable.)

[Brad DeLong]

Invading France to liberate it from the Germans was "right" in concept; it would have been wrong in 1942.

I am glad to see that Operation Overlord, like the Constitution, is a living document...

:-)

[Brad DeLong]

And I'm glad to see that us liberals' habit of hanging around until people recognize what was always plainly written in the text of the Constitution receives the support that it does...

After all, would anyone deny that the unconstitutionality of miscegenation laws is plainly written into the Constitution? (Scalia might, I suppose.)

[Pouncer]

Brad, do we infer there is no Constitutional right to be wrong? That error, always and everywhere, must be corrected by federal marshalls?

[Brad DeLong]

For unconstitutional wrongs, yes: that's what the federal marshals are for.

If the state of Virginia wants to throw Clarence Thomas in jail for marrying a white woman, I want the federal marshals to stop it.