Interracial marriage as a litmus test for same-sex marriage

Abigail Perkiss

In June 1958, Mildred Jeter and Richard Loving, were married in Washington, D.C.  When the couple returned to their Virginia home, they were arrested and charged with violating the state’s anti-miscegenation law.  Known as the Racial Integrity Act of 1924, the law expanded the scope of a longstanding statute prohibiting interracial marriage.

At trial, Judge Leon Bazile asserted that, “Almighty God created 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.”

Six months after their wedding, Jeter, a black woman, and Loving, a white man, pled guilty to violating the law and were sentenced to a year in prison.  Their sentence was suspended for 25 years, on the condition that they leave the state of Virginia.

It was 45 years ago tomorrow, on June 12, 1967, the U.S. Supreme Court announced its decision in the case of Loving v. Virginia.

Writing for a unanimous bench, Chief Justice Thurgood Marshall held that the freedom to marry is a basic right in American society.  “To deny this right on so unsupportable a basis as racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment,” wrote Marshall, “is surely to deprive all the State’s citizens of liberty without due process of law.”

Teacher’s corner

This student-friendly resource could serve as a great guide to discussing Loving v. Virginia (1967). Students can consider for themselves if Loving applies to same-sex marriage.

Though the legal implications of the decision were felt only in discrete areas of the country, the cultural ramifications reverberated across America.  From 1967 to 1970, the nation saw a 448 percent increase in the rate of reported interracial marriage.

These statistics have continued to climb.  According to a Pew Research Center report released in February 2012, whereas just 3 percent of married couples in the U.S. were mixed-race in 1980, in 2010, 1 in 12 married couples self-reported as interracial.

But the Loving case has taken on a new role in the 21st century.  In recent years, the historic decision has become a lens through which to consider the question of same-sex marriage – and commentators across the political spectrum are evoking Loving in the conversation.

In 2007, on the 40th anniversary of the Loving decision, legal scholar Joanna Grossman wrote that, “legally speaking, that ruling has been important to the development of a number of different constitutional doctrines, including the Constitution’s protection of marriage… Same-sex marriage advocates have primarily invoked Loving to argue, by analogy, that a ban on same-sex marriage is a form of sex discrimination, just as a ban on interracial marriage is a form of race discrimination.”

That same day, Mildred Loving herself issued a statement celebrating the expansion of marriage.  “I am still not a political person,” she wrote, “but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight, seek in life.  I support the freedom to marry for all.  That’s what Loving, and loving, are all about.”

And in April 2012, the American Federalist Journal, a repository for the self-described “conservative perspective,” offered its own interpretation of the Loving decision.  “Loving v. Virginia was strictly about racial discrimination,” the author wrote.  “It had nothing to do with the definition of marriage, any more than making black people sit in the back of the bus was about the definition of “bus,” or segregated lunch counters were about the definition of “lunch” or “counter.”

In recent weeks, the First U.S. Circuit Court of Appeals found the Defense of Marriage Act, denying federal benefits to same-sex couples, to be unconstitutional.  While the decision did not address the question of the legality of gay marriage, it pushed the issue toward the nation’s highest court for a final ruling.  “We have done our best to discern the direction of these precedents,’ the opinion read,” but only the Supreme Court can finally decide this unique case.”

If the Roberts Court does ultimately take up the question of DOMA, Proposition 8, and gay marriage, people around the country will look on to see how the legal issue is framed.

Will the Court consider the same-sex marriage as a matter of individual rights and equal protection, or will the justices look to the case as one of federalism and states’ rights?

Whether Loving serves as the litmus test for gay marriage will likely have significant repercussions for the ultimate outcome of the case.

Abigail Perkiss is an assistant professor of history at Kean University in Union, N.J., and a fellow at the Kean University Center for History, Politics and Policy.