John Paul Schnapper-Casteras

Four states recently filed briefs in the U.S. Supreme Court, arguing that the Constitution allows them to ban same-sex marriage. In grappling with this important issue, the court should be guided by how it previously decided the question of whether states could ban interracial marriage. In Loving v. Virginia, the justices unanimously agreed that such bans violated the essential freedom to marry; that principle should govern the outcome here too.

In this day and age, the idea of outlawing interracial marriage seems archaic and outrageous. But the sad truth is that bans like this were once prevalent in 40 states, upheld until 1967, and cruelly enforced. For example, soon after the interracial couple in the Loving case had wed, Virginia police burst into their home in the middle of the night, dragged them to jail and eventually exiled them from the state for 25 years in return for a suspended one-year jail term.

Notwithstanding opposition by the public and judicial precedent, the Supreme Court unanimously held that banning interracial marriage violated the central tenets of the Constitution. That decision in Loving remains deeply relevant to the current question of same-sex marriage for three key reasons:

First, the overarching principles set out in Loving strongly favor striking down bans on same-sex marriage. The court held that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry. That logic applies with equal force to same-sex marriage, particularly since neither Loving nor the Supreme Court’s other relevant decisions are limited to racial discrimination alone. Moreover, Loving makes clear that the Constitution does not allow states to subordinate one group under another. For that reason too, state bans of same-sex marriage cannot stand, since they relegate gay and lesbian couples to a lower social status with a badge of inferiority.

Second, Loving soundly rejected the arguments that the states now repurpose and advance against same-sex marriage. Namely, Loving rebuffed any claim that banning interracial marriage was justified by tradition or the Framers’ original intent. The court additionally rejected the contention that it was beyond the role of the judiciary to review state laws that restricted the freedom to marry. Furthermore, the court lent no credence to research on the purported harm of interracial marriage to children and society. Yet, today, nearly identical arguments — claiming that same-sex marriage is antithetical to tradition, exempt from judicial review, or harmful to heterosexual norms or children — are mounted to justify state bans on same-sex marriage. Indeed, Virginia now acknowledges that it supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

Third, Loving is noteworthy because of how broadly and quickly the decision was accepted. Four decades ago, the “tradition” of banning interracial marriage seemed sacrosanct to the vast majority of Americans. Yet today, Loving has been almost universally celebrated, and the repugnant theories hurled against interracial couples have been largely relegated to the dustbin of history. Remarkably, whereas 96 percent of Americans once disapproved of interracial marriages, 87 percent of all Americans now support them. (By comparison, 63 percent of Americans support marriage for same-sex couples, a level that interracial marriage did not achieve until the late 1990s.) Altogether, Loving has fostered inclusion, helped bridge racial divides, and strengthened the social fabric of our increasingly diverse nation. This progress is part of what Justice Kennedy elsewhere described as “our tradition . . . to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain.”

Ultimately, Loving teaches that positive change is readily possible — often more swiftly and thoroughly than expected. Forms of equality that were once inconceivable can become indisputable. Our nation has a tremendous capacity to move forward — and today, Loving can once again lead the way.

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John Paul Schnapper-Casteras is special counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc., which filed a brief in support of marriage equality, together with the NAACP. Contact him at ldfcomments@naacpldf.org.

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