Happy Loving Day! June 12th marks the 48th anniversary of the Supreme Court's decision in Loving v. Virginia, which struck down race-based limitations on marriage rights. Loving remains a landmark civil rights case and Loving Day, now in its 13th year, has become the nation's "biggest multiracial celebration," according to Time magazine.
Among lawyers, though, Loving has been getting renewed attention, and not just for its invalidation of state anti-miscegenation laws. The case, which helped strike down some of the last vestiges of official segregation, is now being taken up in the debate over same-sex marriage, where advocates argue that its logic, that the right to marry the one you love is fundamental, should be applied to bans on gay marriage today.
The Loving Legacy
When Mildred Jeter, a black and Native American woman, and Richard Loving, a white man, married in 1958, their love violated the laws of almost half the United States. After they moved to Virginia, police took them from their bed in the middle of the night and arrested them for violating the state's Racial Integrity Act.
They left the state, but five years later contacted the ACLU to challenge the statute. When the case reached the Supreme Court, the High Court sided with the Lovings, finding a fundamental right to marry. Further, since Virginia's law employed racial classifications, it was to be subject to, at minimum, the most rigid scrutiny. (In an odd turn, the Court cited Korematsu, for this proposition). Not only did Loving wipe away racist marriage laws, it also reemphasized that the Supreme Court could continue to advance civil rights in the face of public opposition.
Loving has been taken up as a key case in the legal fight for same-sex marriage rights. Advocates of gay marriage argue that Loving's characterization of marriage as a fundamental right means that bans on same-sex marriage must fall. In Windsor, the 2013 case striking down the federal Defense of Marriage Act, the Supreme Court cited Loving as limiting the state's right to define and regulate marriage.
In the current gay marriage case before the court, Obergefell v. Hodges, advocates have argued that Loving prohibits states from "singling out a disfavored group" and denying recognition to their marriages. Obergefell cites the case no less than seven times in his brief to the Court, including as the final sentence. The government's amicus brief references it even more.
The case played a central role in oral arguments as well. Justice Kagan emphasized the connection between Loving and gay marriage at oral arguments, where Loving was brought up just under a dozen times, stating that "Loving was very clearly not just a racial case ... it was also a liberty case."
Whatever the court decides, expect to see Loving make an appearance or twelve. Their decision should be released by June 29th, just a few weeks late for Loving Day, but just in time for Gay Pride.