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Law and Love

Last year saw the celebration of the Supreme Court's land,ark decision Loving v. Virginia. In Loving, Virginia statutes prohibiting inter-racial marriage were struck down by the Supreme Court for violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Mildred Jeter, an African-American woman, and Richard Loving (the perfect name for the case), a caucasian, fell in love, married in Washington, DC, and were indicted for moving to Virginia. Their sentence was suspended on the condition they leave the state for 25 years. Well, love knows no bounds, and the Lovings challenged their conviction to the U.S. Supreme Court. In striking down the abhorent statutory scheme, the Court said that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

I think the Court in this case, and courts generally with regard to statutes impacting relationships, struggle with is whether the law can regulate love. The Supreme Court stated in Loving, "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." Remove the concept of race altogether, and the state cannot regulate who we love. It could be based on race, religion, favorite sports team, people have the freedom to be with whom they love.

I think this underlying theme is what our legal system will continue to struggle with when it comes to issues involving what is tantamount to enforcing a moral code, as discussed in Lawrence v. Texas. Here I am not advocating a position one way or the other on the issues raised in Lawrence (I'll sidestep here but not in my scholarship). However, think it's worth thinking about the interplay of love and law on this Valentine's Day.

Full post as published by Law and Letters on February 14, 2008 (boomark / email).