Legal Commentary

Loving

By Professor University of Miami School of Law

The New York Times has an obituary today of one of those unintentional American heroes, Mildred Loving, one of the plaintiffs in Loving v. Virginia, the case 1967 decision in which the US Supreme Court struck down state miscegenation laws as a violation of the Due Process and Equal Protection clause of the Constitution.

As the NYT story notes, last year on the 40th anniversary of the Supreme Court’s decision, Ms. Loving (could there ever be a more aptly named plaintiff?) issued a statement in support of gay marriage.

Ms. Loving’s death is moment to reflect on how ordinary people can influence major changes. It’s also a reminder of how different today’s Supreme Court is from that of 1967. The decision for the Lovings was unanimous. Does anyone actually think we’d be better off today if the 1967 court had ruled differently?

Some choice quotes from the Supreme Court’s 1967 opinion, ripped slightly out of context as the 14th amendment, like all the civil war amendments, was understood to be first and foremost about ensuring black Americans full citizenship:

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.”

…

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.

Full post as published by Discourse.net on May 06, 2008 (boomark / email).