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California Western -- Loving v. Virginia anniversary
The 40th Anniversary of Loving v. Virginia:  Its Enduring Legacy

By: Barbara J. Cox

In Loving v. Virginia, 388 U.S. 1 (1967), the United States Supreme Court struck down Virginia's anti-miscegenation laws which prohibited marriages by interracial couples.  The trial court in Loving used a definitional defect as its rationale to uphold the statute in stating that "Divine Providence had not intended that the marriage state extend to interracial unions."

LISTEN to Professor Cox discuss the Loving decision on our podcast

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.  And but for the interference with his arrangement there would be no cause for such marriages.  The fact that he separated the races shows that he did not intend for the races to mix.

The Virginia courts declared that marriages of interracial couples were outside the definition of marriage because "it had theretofore never been the 'custom' of the state to recognize mixed marriages, marriage 'always' having been construed to presuppose a different configuration."  

On appeal, the United States Supreme Court struck down the Virginia law on equal protection and due process grounds.  The Court found that the law rested solely on racial distinctions.  Because laws based on racial classifications were entitled to the "most rigid scrutiny" and because there was "patently no legitimate overriding purpose independent of invidious discrimination" to justify the classification, there was "no doubt" that restricting the freedom to marry based on race violated the Equal Protection Clause.  The U.S. Supreme Court rejected the argument that "equal application" of the statute to both whites and blacks immunized it from violating the Equal Protection Clause because it was not race discrimination.

It took the U.S. Supreme Court 19 years to end the ban on interracial couples marrying nationwide, after the California Supreme Court became the first in the country to strike down California’s anti-miscegenation statute in 1948. 

In the late 1940s, Andrea Perez and Sylvester Davis sought to marry in Los Angeles.  The L.A. County clerk refused to give them a marriage license, citing the California statutes which prohibited a white person from marrying a person of another race and proclaiming such marriages to be “illegal and void.”  They decided to fight this refusal, claiming that the prohibition violated their Constitutional rights.

The county clerk argued that their marriage should be prohibited because “the amalgamation of the races is not only unnatural, but is always productive of deplorable results.”  Although other races could freely intermarry, the ban between Caucasians and members of other races should continue to “prevent the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians.”

The California Supreme Court held that these statutes violated the Equal Protection Clause of the U.S. Constitution because they impaired the rights of individuals to marry “by arbitrarily and unreasonably discriminating against certain racial groups.”  Justice Carter’s concurring opinion stated: “It is immaterial that perhaps only a few would wish to marry persons not of their own race or color.  It is material that the few who do so desire have the right to make that choice.  It is only ignorance, prejudice and intolerance which denies it.”  At the time of the California Supreme Court’s decision, polls showed 90 percent of the public opposed to marriage equality for interracial couples.        

Today, most of us recognize the courage and wisdom of these decisions finding that such prohibitions harmed both the couples prevented from marrying and our society.  These courts’ courage was significant, because of the strong public opposition to interracial marriage.  In 1968, 72 percent of the American public opposed marriages by interracial couples. In 1978, 54 percent of Americans continued to disapprove of interracial marriage, and in 1991, Americans approved by a slim majority by 48 to 42 percent.  As Evan Gerstman notes, in his book on Same-Sex Marriage and the Constitution, “Despite this, the Court encountered little public resistance to Loving, nor was there a serious move to amend the Constitution.”

Most Americans celebrate this important anniversary because we recognize that the changes in marriage have improved the institution.  We no longer believe that women should lose their individual rights upon marriage, even though that was true for hundreds of years until the late 1880s. We no longer believe that couples in a loveless, destructive marriage should be prevented from divorcing and perhaps finding love in another relationship. We no longer believe that married couples should not be allowed to decide for themselves whether and when they would choose to have children.  We no longer believe that couples from different races should be legally prevented from marrying.

We look back on the laws banning marriage by interracial couples as the last remnants of the legal apartheid between the races that was based on our legacy of slavery.   It is my hope that, 10 or 20 years from now, we will look back on this current evolution in our views on marriage and know that same-sex couples also should not have been prevented from marrying.

Many of the arguments raised in the Loving and Perez cases are being made today in an effort to prevent same-sex couples from winning the freedom to marry.  One argument that is regularly repeated is that marriage, by definition, consists of one man and one woman; hence, couples of the same-sex, by definition, cannot be married.  But this same argument was made concerning interracial couples and their “definitional” exclusion from marriage. 

Sadly, the constitutions of 26 states have been amended to ban same-sex couples from marrying.  And several efforts have been made to amend the U.S. Constitution and enshrine a ban on marriages by same-sex couples into that document.  Unfortunately, these efforts seemingly ignore the important lessons learned by our society from the struggle to win the freedom to marry for interracial couples.  On this important anniversary, we would do well to learn from the mistakes of the past to avoid repeating them.

Barbara J. Cox is a professor at California Western School of Law in San Diego. This article was published in the June 12, 2007 edition of the Los Angeles Daily Journal.

READ the Loving decision.