Thoughts in a Haystack

It seems incredible that today is only the 40th anniversary of the Supreme Court decision in Loving v. Virginia, the 1967 case that struck down laws against "miscegenation," the intermarriage of people of different "races."

Ed Brayton at Dispatches From the Culture Wars has put up a copy of a statement released for the occasion by Mildred Loving who, with her late husband Richard Loving -- surely the most cosmically named plaintiffs in any lawsuit -- brought down one of the last officially racist policies in this country. The dignity of her words and her quiet affirmation of the right of people to freely love who they choose is a lesson we obviously need to affirm again in this country.

It is also instructive to read the decision in that case, written by Chief Justice Earl Warren for a unanimous court. The facts were simple:

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years.

There is more than just an echo of what that judge said in pronouncing his sentence still abroad in the land today:

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.

Substitute pious invocations about the certainty of God's intentions for marriage between men and women and you can easily identify the kindred spirits of that judge preaching on every street corner.

There is much that is of interest to lawyers about the application of the 14th Amendment to be found in Loving, but the bottom line is this:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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. (Citations omitted)

It would take the change of but a few words in that eloquent statement to right a great wrong being perpetrated throughout much of our country today. Let's hope it isn't another 40 years before we can truly say that we give every citizen of this land all the basic civil rights of man.