April 10, 2017

50 years ago today: The Supreme Court heard oral argument in Loving v. Virginia.

Listen to the audio here (where you can read the transcript as you go).
[T]here's actually one simple issue, and the issue is, may a State proscribe a marriage between two adult consenting individuals because of their race....

These are slavery laws pure and simple.... [These] laws go back to the 1600s.... There was a 1662 Act which held that the child of a Negro woman and a white man would be free or slave according to the condition of his mother. It's a slavery law and it was only concerned with one thing, and it's an important element in this matter.

Negro man, white woman, that's all they were really concerned with. I think maybe all these still concern with. It's purely the white woman, not purely the Negro woman....

52 comments:

rcocean said...

What a ridiculous decision! You can agree that it was a bad law, without agreeing it was "unconstitutional".

How does a law what forbids both black AND white from marrying each other, discriminate?

And what in the world does it have to do with the 14th amendment? I bet when the 14th Amendment passed in 1870, every state in the Union banned inter-racial marriage.

readering said...

Wrong adjective. Unanimous decision.

Richard Dolan said...

That was the rare case in which SCOTUS allowed oral argument by an amicus other than the Solicitor General.

William Marutani, a Japanese-American who had been interred during WW2, was allowed to participate in oral argument as counsel for the Japanese American Citizens League as amicus. He began by telling the Court that he might be the only person in the courtroom who was certain of his racial background (pure-blooded Japanese) given the 'melting pot' nature of America. Marutani was later a judge on the Court of Common Pleas in Philadelphia -- at the time, he was the only Asian-American judge on any court in the East. When he ran in a primary for election to the Supreme Court of Pennsylvania, he decided not to put his picture on his campaign material, in the hope that voters might think that, having a name ending in 'i', he was Italian. Didn't work.

My wife later clerked for him. Wonderful fellow. There was a nice write-up about him and his role in Loving v. Virginia in the New Yorker last November.

Ann Althouse said...

"How does a law what forbids both black AND white from marrying each other, discriminate?"

It draws a line based on race. 2 people, because of their race, are forbidden to marry.

Chuck said...

Matthew J. Franck, in the National Review from the days leading up to Obergefell, on the link between the two cases (as well as Roe v. Wade):

If the partisans of judicially imposed same-sex marriage think a ruling in its favor will be as triumphant as Loving was, they are deluding themselves. Such a ruling would not vindicate the ancient idea of marriage, shedding a repugnant distortion of it adopted for narrow, prejudicial reasons. It would be a flagrant innovation, a redefinition of marriage by judicial fiat, not the last defeat of exhausted ideologues but the first broadside in a new phase of the culture war, its grapeshot indiscriminately wounding marriage as an institution, the welfare of children, the rule of law, and the freedom of Americans to live and act according to their religiously informed consciences.

The model for what awaits us if the Court gets this easy question wrong is not Loving v. Virginia, but Roe v. Wade. The New York Times claimed the day after Roe that the decision was a “historic resolution of a fiercely controversial issue.” This is by now a grim joke, since Roe resolved nothing and only made the controversy fiercer. Given the high respect paid to pronouncements of the Supreme Court (an unaccountable phenomenon to those of us who study it for a living), a drop in support for the traditional meaning of marriage would be no surprise after a decision to redefine it. And young people in particular, more thoroughly marinated than their elders in the moral fashions of the day, already accept same-sex marriage in high proportions. It is easily forgotten, however, that Roe too was followed by a brief burst of support, especially among the young. But the mockery Roe made of the Constitution, the ideological tyrannies it inspired, and most of all the very real horrors of its effects have caused it to be viewed increasingly as the Dred Scott of our times, and pro-life sentiment has grown.


Read more at: http://www.nationalreview.com/article/419441/supreme-court%27s-gay-marriage-case-unlike-1967-ruling-on-interracial-marriage

traditionalguy said...

I propose a law banning any black woman from cleaning for , cooking and serving food for, and nursing for in medical care any white man. That should about end the marriage thing. Sex is a not that important in marriage.

Unknown said...

So. Given Loving, and given Obergefall, and also the Obamacare decision:

Can a state require two women to "Marry", regardless of their personal beliefs? Or, of course, pay a 20 grand a month tax or face jail time if they don't?

--Vance

Bob Matthews said...

Will someone tell my why again the federal government is in the business of regulating marriages? What exactly is the compelling state interest in who I happen to share a life with?

Etienne said...

I think the better ruling would have been that all state marriages are unconstitutional.

I believe the concept of marriage was in common law. A lot of common law has gone by the wayside.

I think that marriage is nothing more than a subsidized contract, and that single people are forced to share in this tax scheme.

I believe all infrastructure related to marriage, should be paid by those getting married.

As far as child welfare is concerned, that is a separate matter. Child welfare should be a state matter, regardless if the parents are married or not.

I think the way forward is to end state marriages, and force the citizens to pay for a regular contract. Force them to pay taxes, and not subsidize their desire to cheat the American public with rebates and tax schemes, by politicians who will lick anyone's dick for the right amount of money.

Etienne said...

Bob Matthews said...Will someone tell my why again the federal government is in the business of regulating marriages?

They weren't regulating marriage. There is no federal right of marriage.

What they were saying, is that it is unconstitutional to discriminate who gets married. That if the states are going to marry people, which is stupid, then they have to marry anyone who applies.

I think the only reason to outlaw marriage in a state that marry's people, is for health reasons, and incest. It is a burden on society to warehouse the results of these copulation's.

West Texas Intermediate Crude said...

The state has an interest in the production of the next generation of citizens/taxpayers. To that end, it has facilitated and subsidized the status of marriage as a proven way of achieving its goal. The state of marriage is not about getting to visit your favorite person in the hospital or inheriting property tax-free, it is a way of making young citizens. The sex of the participants is obviously relevant in producing the next generation (i.e., one of each). The race, ethnicity, or religion of the participants has no effect on the ability of the couple to produce children and should be of no concern to the state; hence the Loving decision, which was widely accepted and respected. The sex of the participants does have much to do with reproduction, hence Obergefell resulted in much ridicule directed to the Supreme Court, and the decreased esteem in which it is held by much of America. It's absurd that the relationship between marriage, sex, and reproduction even has to be discussed, but apparently we live in absurd times.

Bob said...

> "There was a 1662 Act which held that the child of a Negro woman and a white man would be free or slave according to the condition of his mother."

I have heard that this was a specific legal innovation of the Virginia Colony designed to support emerging plantation slavery. Under earlier English law, "slave" was a civil status inherited from the father. If the father was free, the child would be free, and if the father was unknown, he was presumed to be free and so the child would be free. Virginia changed that law to ensure that children of slave women (easily identifiable) would inherit slave status.

Perhaps someone here can tell us if the above summary is roughly correct.

Left Bank of the Charles said...

What a great tile for the case, Loving v. Virginia. How could they lose? And the state has made it all back with its slogan, "Virginia is for Lovers"!

buwaya said...

The Spanish colonial system was, compared to these North American customs, much more liberal.
You could marry anyone, as in the Catholic tradition, though there was differential (and discriminatory) treatment in law and custom for persons of the resulting mixtures.

The permutations of the racial mixtures seems to have fascinated colonial society -

https://en.wikipedia.org/wiki/Casta

Espanol y Mulata
https://en.wikipedia.org/wiki/Casta#/media/File:Cabrera_Pintura_de_Castas.jpg

buwaya said...

As for the interests of the State -

It has often been in the interest of the state to spur the natural increase of its population, and so to provide wives to its citizens/subjects.

Les Filles du Roi
https://en.wikipedia.org/wiki/King%27s_Daughters

The London Emigration Committee
http://www.portphillippioneersgroup.org.au/pppg5bq.htm

These schemes, and several others, worked superbly.

I suggest a government program, in the United States, to restore its natural fertility and improve the race through a scheme of internal colonization through the formation of families, by providing wives to such of its productive young men as are unable to arrange this themselves.

To recruit poor young women of robust physique, good temperament and moral character, and to provide them with a dowry and introductions to unmarried young men with a record of high tax payments. Let the taxpayers, be they ever so homely, breed more taxpayers.

Achilles said...

Leave it up to the government to mess up human pairing.

wildswan said...

The Virginia Racial Integrity Act of 1924 was passed as part of the program of Virginia eugenicists. They held that there was no such thing as a human species but rather a continuum of individuals from the ape through the various races close to the ape up to the highest achievement of evolution, the white race. Marriage with a black moved the children of the marriage back from the advanced evolutionary state of their white parent toward the less advanced state of the back parent. The purpose of the Racial Integrity act was to prevent this devolution. This is racism - as people realize and they reject it.

But people don't always realize that racism as we know it in the segregation laws in the US was justified as based on "science"; the "science" was eugenics. Plecker, the leader of the Virginia eugenicists enforcing the 1924 law, spoke at the Third Eugenical Congress in 1930 explaining his efforts. Rather surprisingly, he said that laws like the Racial Integrity Act would fail if only enacted in some states; that a patchwork of laws in some states could not be a "final solution" (his words) to the eugenical problems created by the presence of another, inferior" race if this other race had legal rights in other adjacent states. This entire racial integrity approach was discredited when the Nazis took it up. And Loving v. Virginia repealed it for the nation.

However, other eugenicists founded Planned Parenthood which has not been discredited. Its clinics have brought the black birth-rate below replacement level and that birth rate is still falling. Yet PPFA supporters, like Hillary Clinton and the Democratic party, demand state and Federal funding for their genocide and are indignant when Trump and his supporters work to cut off government funding for the genocide.

wwww said...

I have heard that this was a specific legal innovation of the Virginia Colony designed to support emerging plantation slavery. Under earlier English law, "slave" was a civil status inherited from the father. If the father was free, the child would be free, and if the father was unknown, he was presumed to be free and so the child would be free. Virginia changed that law to ensure that children of slave women (easily identifiable) would inherit slave status.

Perhaps someone here can tell us if the above summary is roughly correct.


Essentially yes. Virginia invented slavery for the English colonies. The first Africans in colonial Virginia were legally indentured servants. Magistrates and masters treated them in a ad hoc manner until the slave code was written. Some were freed and given land as their freedom dues. A population of Afro-Virginian land owners grew in the colony. As time passed, masters increasingly did not free Afro-Virginians at the end of seven years. Some took the matter to court. The law codified American slavery.

With this law, hereditary slavery began in the English colonies. The status of slave children followed the mother, not the father, as was customary in English law.

The State of Virginia had an odd miscegenation exception. It was legal for the descendants of Pocahontas could marry a white person.

Birkel said...

For a thorough history of laws in this subject area, I recommend Judge Leon Higginbotham's "In The Matter Of Color".

I believe you can find it through the Althouse Amazon portal and it is probably the finest work of its type. Judge Higginbotham was an impressive man.

The New York Times obituary.

Bob said...

^ Very interesting, wwww. Thank you.

The clause in the Massachusetts Body of Liberties of 1641 is:

"91. There shall never be any bond slaverie, villinage or Captivitie amongst us unles it be lawfull Captives taken in just warres, and such strangers as willingly selle themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israell concerning such persons doeth morally require. This exempts none from servitude who shall be Judged thereto by Authoritie."

Race does not appear in these statements, but it was taken for granted that war captives could be sold into slavery (and some American Indians from the Pequot War, I believe, were). And no mention here of inheritance of slave/servant status -- perhaps the general English standard was assumed to be followed.

https://history.hanover.edu/texts/masslib.html

Birkel said...

Judge A. Leon Highinbotham, Jr

Apologies.

Bob Loblaw said...

What they were saying, is that it is unconstitutional to discriminate who gets married. That if the states are going to marry people, which is stupid, then they have to marry anyone who applies.

The problem is any logic you can apply to people of different races you can apply to other arrangements like gay marriage (check), incest, and polygamy.

Bay Area Guy said...

If Loving you is wrong, I don't wanna be right

walter said...

buwaya said...I suggest a government program, in the United States, to restore its natural fertility and improve the race through a scheme of internal colonization through the formation of families, by providing wives to such of its productive young men as are unable to arrange this themselves.
To recruit poor young women of robust physique, good temperament and moral character, and to provide them with a dowry and introductions to unmarried young men with a record of high tax payments. Let the taxpayers, be they ever so homely, breed more taxpayers.
--
Feed the beast..so to speak.

Gahrie said...

Overturning Roe and Griswold would go a long way in fixing the fertility problem this country has.

It would end the twisting that the 14th Amendment has undergone in order for it to mean whatever it would need to mean to allow the Left to bestow victory on any party the Left feels empathy with.

Lewis Wetzel said...

Look up "The Pocahontas Exception" on Wikipedia some time if you'd like a good laugh.

wwww said...
This comment has been removed by the author.
Lewis Wetzel said...

"That if the states are going to marry people, which is stupid, then they have to marry anyone who applies."
The political state didn't marry people until the French Revolution. Instead they recognized religious marriage.
The state has to recognize marriage so it can identify the people responsible for the children of the marriage and make certain that property rights of both parties and any heirs are respected. The state didn't care if people loved each other, the church did. Not sure why Tony Kennedy thought that love was an essential part of a civil marriage.

Etienne said...
This comment has been removed by the author.
Etienne said...

Bob Loblaw said...The problem is any logic you can apply to people of different races you can apply to other arrangements like gay marriage (check), incest, and polygamy.

I can see where the state could have a prohibition that would not be solely discriminatory.

Robert Cook said...

"How does a law what forbids both black AND white from marrying each other, discriminate?"

Prof. Althouse already answered that.

"And what in the world does it have to do with the 14th amendment?"

Have you read the 14th Amendment? If not, I have provided it below:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Does that answer your question?

sinz52 said...

Loblaw said: "
The problem is any logic you can apply to people of different races you can apply to other arrangements like gay marriage (check), incest, and polygamy."

No, there's a legal definition of discrimination: It's doing something against someone because of the class to which that person belongs.

Black people didn't choose to be black. They were born that way. And despite what some social conservatives think, being gay is not a matter of lifestyle choice. Gay people didn't choose to be gay because they thought it might be fun. They grew up realizing that they were gay.

Polygamy, OTOH, is a choice.

So is incest.

So is religion, btw. Which is why religious discrimination in America would have been a virtual certainty without the explicit First Amendment guarantee of freedom of religion.

Laslo Spatula said...

Excerpt from "Black Blood, Black Seed"

“Miss Christina, what would happen if we was to marry?"

"Don't be silly, Benjamin. My family would disown me and the town would brand me a whore."

"But what about me, Miss Christina?"

"Oh, Benjamin: they'd surely hang you. You'd be lucky if they didn't cut off your man-parts, first."

"I don't get it. Why can't people be free to love who they love?"

"That's because The Wrong Love can destroy Society, Benjamin. Once you have marriage between the races who knows what else would be next?"

"You mean like White Women marrying Chinamen, Miss Christina?"

"Well, there's that. But heavens, you could end up with men marrying other men."

"Oh, now who's being silly, Miss Christina. Two men can't get married: one of them's gots to be a woman."

"Oh, we think that now, Benjamin, but the Government can surely do strange things."

"Can't we just stop with black men marrying white women? You know: just put the line there?"

"Oh, Benjamin: once you move the line, the line will keep moving. It's like when we got rid of slavery: all of a sudden your people started getting rights, and now look what's happened."

"What's happened by us black people getting rights, Miss Christina?"

"Well, your people are sure raping a lot of White Women now."

"I don't think that's true, Miss Christina. I think alot of White Women have the relations with a Black Man then gets scared and say it's rape."

"How can you say such a thing, Benjamin? A Woman would NEVER lie about rape.Never."

"Is that true, Miss Christina?"

"Of course it's true, Benjamin. Just keep in mind: sex with a black man is closer to rape than sex with a white man. You're already most of the way there."

"I never thought of it that way, Miss Christina."

"Oh, Benjamin. even TALKING to a Black Man is a little like Rape..."

"I guess I best be more careful, Miss Christina..."

"Yes you should, Benjamin. I'd hate to see you hung for raping a White Woman just because you talked to her..."

I am Laslo.

Larvell said...

"The Spanish colonial system was, compared to these North American customs, much more liberal."

Well, after they killed off all the indigenous people.

Fernandinande said...

wildswan said...
This entire racial integrity approach was discredited when the Nazis took it up.


Eugenics only slightly overlaps with racial issues and most definitely has not been discredited.

Modern eugenics: "How Humans Are Shaping Our Own Evolution"

Its clinics have brought the black birth-rate below replacement level and that birth rate is still falling.

Oh boo hoo, the black birth rate is higher than white or Asian.

Lewis Wetzel said...

Robt. Cook helpfully quotes the 14th:
" . . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The problem is right there, the 14th is hopelessly ambiguous. Suppose you argue that the law is what causes you to be poor and another man rich? We all know that property crimes and assaults are primarily committed by people who aren't rich.
When you look at 14th amendment case law you see that it is a kitchen sink. Suppose you are too stupid or too impetuous to follow the law? The people who issue high interest rate credit cards are taking advantage of the law to treat people unequally.

Lewis Wetzel said...

Sinz 52 wrote:
Gay people didn't choose to be gay because they thought it might be fun.
Oh, bullshit. You cannot prove this. Even the APA will not say that homosexual orientation is not a choice, only that homosexuals "feel little or no sense of choice." The "gay" designation is behavior based. It is a matter of self-identification. Once you say that a behavior is congenital, you are heading down a very bad road.

Robert Cook said...

"The problem is right there, the 14th is hopelessly ambiguous."

Ambiguous? I'd say, "inclusive" and/or "open-ended." That is to say, rather than being written in language like a contract, offering endless iterations of very specific stipulations, trying to anticipate every possible occurrence that would be covered by the contract, it provides a general principle of law, to be applied where it is deemed applicable by the courts.

Robert Cook said...

Lewis Wetzel @ 10:24 AM:

Grow up, Lew. It's still unknown what mechanism leads to people identifying as homosexual--i.e., being attracted emotionally and sexually to others of the same gender, but to assume that people somehow decide, as if on a whim, to be gay is simply to deny the reality around you. "Self-identifying" means a person knows who he or she is. It does not mean he or she just decides to try on a dramatic and heterodox lifestyle just for the heck of it.

The problem is in our labeling, in our attempting to define states of being. In reality, the sexuality of human beings if much more fluid that just "straight" or "gay." However, the presence of homosexuality throughout human history and in every human society tells us this is a normally and naturally recurring human behavior/orientation.

Lewis Wetzel said...

Robert Cook wrote:
" . . . to be applied where it is deemed applicable by the courts."
But that is the problem, isn't it? There is a tendency for people with certain political goals to avoid the messiness of democracy and have a "right" be found in the 14th. So the pragmatic idea of a "living constitution" becomes a tool for enshrining political dogma into law without political debate by the American people. Sovereignty resides in the American People, not the constitution.

Lewis Wetzel said...

It's still unknown what mechanism leads to people identifying as homosexual--i.e., being attracted emotionally and sexually to others of the same gender, but to assume that people somehow decide, as if on a whim, to be gay is simply to deny the reality around you.
Didn't say that, Robert Cook.
Avoid absolutisms. You seem to be saying that every single person who ever identified as homosexual has never had an element of choice in the matter.

Gahrie said...

All the 14th amendment did was to over turn Dred Scott and make Black people citizens, say the states had follow due process and equal protection like the federal government and correct some minor Reconstruction issues. It didn't create any new rights at all....it just restored the right of citizenship taken away by Dred Scott, and extended the protection of some previously federal rights to cover state actions also.

It didn't create birthright citizenship, and it didn't create sexual privacy.

The Supreme Court did that by taking the 14th Amendment and twisting it to mean whatever it would need to mean to allow the Court to bestow victory on any party the Court feels empathy with.

Robert Cook said...

"' . . . to be applied where it is deemed applicable by the courts.'

"But that is the problem, isn't it?"


No. That's how our system works.

Lewis Wetzel said...

Robert Cook wrote: "No. That's how our system works."
We all know how much you love the way our system works, Robert Cook.
How is saying "No. That's how our system works" not an attempt to avoid justifying a proposition?
You may love the 14th. That doesn't mean that you should love the 14th, or that it was implemented democratically after seeking a wide political consensus (it wasn't), or derived from some rational principle (it wasn't).

Robert Cook said...

"Avoid absolutisms. You seem to be saying that every single person who ever identified as homosexual has never had an element of choice in the matter."

I never said that. I'm saying that people may identify as straight, gay, or bi. Human behavior, drives, and sexuality are fluid. People may identify as straight and engage in homosexual behavior, or as gay and engage in heterosexual behavior, either because they're compelled to by coercion or (in the case of gays engaging in heterosexual behavior) to hide their true nature, or because they're sexually adventurous, or for a variety of reasons. There are those who identify as "bi," of course, who are sexually and romantically attracted to persons of both genders.

People who are gay and say they have "always been gay" or "had no choice in the matter"--pretty much most, if not all, gay people--are not saying that to hide that they simply made a choice. That would make no sense and serve no purpose. They are expressing their personal reality and experience.

To the degree there are persons who engage freely in homosexual behavior but who are "straight" in their own minds and preferences are anomalies and do not prove the claim that "gays choose to be gay."

Robert Cook said...

"(The 14th Amendment) didn't create any new rights at all...."

I thought our rights were "god given" and not "created by man."

The 14th Amendment doesn't have to "create new right." All rights not expressly prohibited by the Constitution are ours inherently. Any time the state tries to prohibit behavior that is not expressly forbidden by the Constitution, it is overreaching its bounds.

Lewis Wetzel said...

"Any time the state tries to prohibit behavior that is not expressly forbidden by the Constitution, it is overreaching its bounds."
But the 14th can be said to forbid treating any person unequally for any reason, simply by a court finding that the activity a person is involved in is a public accommodation. The 14th can be seen as a tool to control all social interactions. It is the totalitarians' dream, all social interaction must be mediated by the state, and social interaction may include intensely private actions, such as whom we sleep with. Suppose a psychologist does not feel she can offer treatment to gay people because her religion tells her that homosexuality is a sin and should not be normalized?

Vimax Medan said...

PEMBESAR PENIS CIKARANG

Gahrie said...

All rights not expressly prohibited by the Constitution are ours inherently.

So I have the right to commit murder? Fraud? Bestiality? Polygamy? Prostitution? use Drugs?

Gahrie said...

Any time the state tries to prohibit behavior that is not expressly forbidden by the Constitution, it is overreaching its bounds.

And there goes 99% of criminal and civil law.........

Gahrie said...

When the Constitution, and the 14rh Amendment were written, homosexuality was illegal and there was no such thing as birthright citizenship. I am fairly certain that the writers of both documents would have opposed both homosexuality and birthright citizenship.

Yet somehow, their words have been twisted to mean what they need to mean to create a right to sexual privacy and a right to citizenship.

Lewis Wetzel said...

Robert Cook does not seem to understand that the states do plenary for everywhere the constitution denies jurisdiction to the feds.
The people who are most likely to miss this important difference are liberals and libertarians. The process doesn't matter to them, it is the results.