Writing for the majority in the Supreme Court’s 5-4 ruling that nationalized the right to marry for same-sex couples, Justice Anthony Kennedy cited another landmark case: Loving v. Virginia (1967), which struck down bans on interracial marriage.
No question, Loving gets a significant assist in the upholding of Obergefell v. Hodges. So, how do the cases on interracial marriage and same-sex marriage compare? And how might such a comparison shed new light on the past, present, and future of the Court’s breakthrough ruling?
In the Court’s decision in Loving, Chief Justice Earl Warren wrote with emphasis on the central importance of the freedom to marry. He also spoke specifically on the Fourteenth Amendment’s requirement that race not be the basis for excluding any couple from that freedom—but he otherwise left states to come up with their own rules of marriage. At the same time, Virginia could not punish the Lovings for their marriage and must, in fact, recognize it as fully valid.
Loving met with much relief and some resistance. Mopping up over the next few years required federal court intervention regarding the obtaining of marriage licenses in Louisiana, Arkansas, Mississippi, Alabama, and Georgia, as well as a state court ruling in Florida, but mostly the old laws went away with barely a whimper. The last pillar in the edifice of Jim Crow had come tumbling down. The Lovings had not only managed to get their own convictions thrown out, but their case had also brought an end to the entire antimiscegenation regime, in Virginia and 16 other states.
Fast-forward to 2013 when, in United States v. Windsor, the Supreme Court majority explicitly took that approach when it upheld New York’s authority to recognize same-sex marriage. The Court ruled that, once married under New York law, a couple could not be denied federal benefits just because the two people in that marriage shared a gender identity.
Because of these two rulings—with Loving emphasizing the limits to states' authority, and Windsor the broad extent of state power—both sides had reason to be cautiously optimistic as they awaited the Court’s ruling in the same-sex cases.
In some respects, the Loving litigation came at a considerably more advanced stage of development than Obergefell. As late as 1948, 30 of the 48 states had laws restricting some forms of interracial marriage (and in all cases black-white marriage), a number that had dropped to 24 of 48 in 1958 when Richard Loving and Mildred Jeter drove up to Washington, D.C., to get married and then returned home to Virginia to live, where they were soon arrested on felony charges.
When the Loving case went to the Supreme Court in 1967, only 17 of the 50 states refused to recognize interracial marriage, albeit this was variously defined. These 17 were all concentrated in a geographical block, so Loving came out of Virginia, and people outside the South could look at their white counterparts in the outlier states as regionally “other” and somehow benighted.
As same-sex cases have made their way to the nation’s high court in the past couple of years, no such geographical concentration has characterized the split among states recognizing or banning same-sex marriage. Obergefell came out of Ohio, one of the large majority of states that had yet, of their own accord (rather than as a result of rulings in lower federal courts), to accept same-sex marriage as a matter of policy.
Yet Obergefell came at a time when, in other respects, the process was already further advanced than Loving. The Lovings had faced a one-to-five-year term in the state penitentiary for their marriage. No criminal sanctions have faced same-sex couples since the Lawrence v. Texas decision a dozen years ago.
In both cases, the decision to suddenly nationalize previously banned marriages everywhere meant not only that couples from permissive states could move at will to prohibiting states, transporting their marriage with them, but also that couples in all states could now get married in their home state.
Another way to compare the Loving and Obergefell cases is to look at positions taken by the Catholic Church. In Loving, the National Catholic Conference for Interracial Justice actively supported the legislative repeal or judicial rejection of laws against interracial marriage, and the group recruited Catholic bishops—especially from states with such laws, including Virginia—to submit a brief as friend of the Court in the Loving litigation. By contrast, as historian Fay Botham observed some years ago, in view of their theology of marriage Catholic spokesmen voice serious moral objections to same-sex marriage.
Maryland was the first state to criminalize black-white marriage, which it did even before it was a state, in the 1660s. For a time, a white woman who married a black man could find herself reduced to slavery, a status that her children would be born into. Three centuries later, between the time that the Loving case was argued before the U.S. Supreme Court and the time the Court actually issued its decision in Loving, Maryland repealed its ban.
Similarly, albeit far faster, Hawaii led the way with its about-face on same-sex marriage. Two decades ago, when the state courts of Hawaii seemed about to interpret the Hawaii state constitution as denying the state the authority to ban same-sex marriage, the voters of Hawaii changed the constitution to prevent that outcome. Twenty years later, soon after the Supreme Court ruled against half of DOMA, a special session of the Hawaii legislature repealed the same-sex ban there.
DOMA, the so-called Defense of Marriage Act passed by Congress in 1996, was itself a response to developments in Hawaii. One wing of DOMA stipulated that no federal benefits of marriage would flow to married same-sex couples no matter where they lived. The other wing sought to assure states that, no matter what happened elsewhere, that particular state need not recognize same-sex marriages by couples who wed across state lines.
The Windsor case from New York two years ago took out the section denying federal benefits, at least in states that had enlarged the legal definition of marriage to include same-sex marriage. The Obergefell litigation sought to do the same with the section that said no state had to recognize a same-sex marriage entered into in another state.
Lawyers for the Lovings never argued at the U.S. Supreme Court that the full faith and credit clause of the U.S. Constitution—according to which each state must recognize contracts entered into in another state—required Virginia and 15 other states to recognize the Lovings’ D.C. marriage—and when the Court ruled as it did, the matter was rendered moot anyway. The Court could have ruled in Obergefell that Ohio had to recognize James Obergefell’s Maryland wedding, but since this case, like Loving, categorically threw out all bans against the previously proscribed type of marriage under controversy, there the matter became immediately moot as well.
Throughout American history, marriage had almost always been exempt from inclusion under the benefits of the full faith and credit clause. Had the Court ruled to the contrary, it would have been taking a position held by only a handful of courts or legislatures. California, even while refusing to grant marriage licenses to many “interracial” couples, had long permitted them to travel to Washington state and return as married couples. In a couple of instances in the 19th century, a state court had ruled that such a marriage must be recognized as valid. But almost always, state courts had flat out refused to accept such a position.
Let’s consider two other cases for insight into what the future holds for Obergefell.
Roe v. Wade, the 1973 abortion case, proved a lightning rod in state and federal politics for decades afterwards, and it continues to do so.
Brown v. Board of Education, ruling against state-mandated public school segregation, had an enormously volatile afterlife as well. Massive Resistance, as it was called, led states to prohibit any desegregation whatsoever, and when the Court disallowed that approach, by the closest of margins some state legislatures—including Virginia’s—decided that perhaps it was better to keep the public schools open, even if some of them were at least somewhat desegregated, than to go out of the public school business entirely.
Already we see evidence of some parallels to the aftermath of Brown v. Board. Some declared candidates for the 2016 Republican nomination are calling for a constitutional amendment to permit states to opt out of the new ruling.
The Court could not have ruled the way it did had DOMA made its way into the Constitution, but DOMA did not, so the Court majority was able to rule the way it did. At this point there seems no possibility of the new calls coming to fruition, but the question is likely to remain a matter of spirited debate for some time, perhaps along the lines of the Roe v. Wade model.
Already, too, shades of Massive Resistance have emerged. In the aftermath of Brown, legislative bodies of entire states seriously considered going out of the public school business so as to avoid any chance of having desegregated public schools, and one county in Virginia, Prince Edward, did so for several years when the court order finally came for it promptly to commence desegregation. In a strong echo of those days from half a century ago, some county officers, in Alabama and Tennessee, have already indicated that their counties will no longer issue marriage licenses, so there can be no chance that a license issued in their county would go to a same-sex couple.
Many people will no doubt continue to see the Court’s action as, at best, ill-advised. Delegate Robert G. Marshall, the Virginia legislator who proposed the 2006 amendment to the Virginia Constitution that a federal court threw out last year, castigated the ruling as “a farce appropriate for theatrical comedy.” The dissenting justices on the nation’s high court rejected not the idea of same-sex marriage but rather the position that a Court majority should determine whether every state must license and recognize such marriages.
Who gets to make such decisions is a part of the story, though the current headlines focus of course on the substance of the ruling.
The trial judge in the Loving case, Leon M. Bazile, dismissed out of hand the authority of any federal court to rule on matters of race in either marriage or schools. He did so in part because of his understanding of the rule of law, but he did so in part to preserve the outcome he yearned to retain. The two pieces are, of course, detachable.
Two considerations can be said to have driven the Court majority in Obergefell. One, expressly referred to, related to a felt need to reconcile antithetical rulings from one circuit court of appeals to another, given the Sixth Circuit’s rejection of same-sex marriage. Another has to do with Justice Kennedy’s heartfelt commitment to what he terms “equal dignity,” reflected in Windsor and again in Obergefell. In the aftermath of Windsor, same-sex married couples in states that recognized their marriage could take advantage of all federal benefits conferred by marriage, but their counterparts living in states that did not recognize their marriage could not.
Whatever uncertainty there might be about the cultural politics of same-sex marriage in the months and years to come, the nature of the Court’s breakthrough ruling is remarkable. Its significance cannot yet have entirely set in.
Said the Virginia attorney general, Mark Herring, who had hoped for the outcome announced Friday, “Nothing will change in Virginia.” Much in fact did immediately change. The Court’s majority opinion meant that the changes that had been taking place in Virginia would persist. Had the Court ruled the other way, no matter by what margin, such could hardly have been the situation. Had that happened, litigation would have been begun immediately to undo the lower federal court’s ruling in light of its rejection by the Supreme Court. The fact that “nothing will change” is itself a tremendous statement of how much in fact has just changed.
Chief Justice Warren wrote in 1967: “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.” His Court took away any impediment of racial identity to inclusion in the realm of marriage. Now the Court has gone on to remove any limitation as to the gender identity of the two people who wish to commit to a marriage.
Peter Wallenstein, an award-winning professor of history at Virginia Tech, has published such books as Tell the Court I Love My Wife: Race, Marriage, and Law—an American History (2002) and Race, Sex, and the Freedom to Marry: Loving v. Virginia (2014).