Loving v. Virginia, 388 U.S. 1 (1967)

The Fourteenth Amendment, ratified in 1868, attempted to change the status of blacks in the United States from a position of inferiority to one of equality with whites. The Supreme Court, however, refused to give the amendment its full meaning until nearly a century later, when it began to strike down as unconstitutional state laws based on the inferiority of the black race, including school segregation in Brown v. Board of Education (1954). In 1967, sixteen states barred marriage between persons of different races. That year, the Court, under the leadership of Chief Justice Earl Warren, invalidated anti-miscegenation laws as forms of invidious racial discrimination. Warren noted that over the past fifteen years fourteen states had repealed their laws banning interracial marriage.

Richard and Mildred Loving, a white man and a black woman, were married in 1958 in Washington D.C. because their home state of Virginia prohibited racially mixed marriages. After their wedding, they moved to Caroline County, Virginia, and lived as husband and wife. In 1959, they were arrested, prosecuted, and convicted of violating Virginia’s antimiscegenation law. The trial court sentenced each of them to one year in jail. They challenged the law as a violation of the equal protection of the laws clause of the Fourteenth Amendment. In 1966, the Virginia Supreme Court of Appeals upheld the law, but in June of 1967 the U.S. Supreme Court unanimously ruled the law unconstitutional.

The American colonies banned interracial sexual relations and marriage beginning in the seventeenth century. In 1664 Maryland, seeking to avoid the question of whether the offspring of a free white and a black slave was free or slave, enacted a statute prohibiting interracial marriage. In following years, Massachusetts, Pennsylvania, North Carolina, South Carolina, and Virginia instituted anti-miscegenation laws. After the Civil War and the abolition of slavery, thirty-three states kept or enacted laws barring marriages between the races. The state of California in 1880 banned marriage between whites and persons of Asian descent. Colonial and state governments never succeeded in enforcing these laws, however. It is estimated that seventy percent of African Americans have at least one white ancestor.

State courts repeatedly upheld these laws against constitutional challenges. Judges and legislators noted that such marriages were unnatural and a violation of God’s will. The Sentencing judge in the Loving case observed, ‘‘Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents . . . . He did not intend for the races to mix.’’ The most frequent reason given for keeping the races from cohabiting was the need to preserve the integrity and supremacy of the white, European race. The Supreme Court of Appeals of Virginia in Loving said that the state’s legitimate purposes were ‘‘to preserve the racial integrity of its citizens,’’ and to prevent ‘‘the Corruption of Blood,’’ ‘‘a mongrel breed of citizens,’’ and ‘‘the obliteration of racial pride.’’ The court noted that the law treated blacks and whites equally. It was a crime for either to marry someone of the other race. The state appellate court also ruled that marriage was a matter left by the Tenth Amendment of the Constitution to the states, which could regulate it under their police power, the power to make laws for the welfare, safety, health, and morals of the people.

Chief Justice Warren dismissed evidence that at least some of the framers of the Fourteenth Amendment thought that it permitted the states to continue to ban interracial marriage. Warren reasoned that the equal protection clause in both intent and in plain meaning obliterated all forms of state-sponsored invidious discrimination between the races. Citing Korematsu v. U.S. (1944), he noted that all laws discriminating on the basis of race are presumed unconstitutional and subjected to strict judicial scrutiny. Only a compelling governmental interest could save such a law, and the state failed to make any such justification.

The Supreme Court held that not only were antimiscegenation laws inconsistent with equal protection of the laws but they also infringed a fundamental right guaranteed by the due process clause of the Fourteenth Amendment. ‘‘Marriage,’’ declared Warren, is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.’’

Those who advocate a constitutional right of homosexuals to marry rely heavily on the Court’s reasoning in Loving v. Virginia. They argue that state bans on gay marriage are based on the moral inferiority and deviance of homosexuals and, as such, are invidious forms of discrimination. Secondly, they contend that such prohibitions deny gays and lesbians the fundamental right to marry.

KENNETH M. HOLLAND

References and Further Reading

• Anti-Miscegenation Laws. Encyclopedia of African- American Civil Rights. New York: Greenwood Press, 1992.
• The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective. Virginia Law Review 52 (1966): 1189–1223.
• Moran, Rachel F. Interracial Intimacy: The Regulation of Race and Romance. Chicago: University of Chicago Press, 2001.
• Newbeck, Phyl. Virginia Hasn’t Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving. Carbondale: Southern Illinois University Press, 2004.
• Wallenstein, Peter, Law and the Boundaries of Place and Race in Interracial Marriage: Interstate Comity, Racial Identity, and Miscegenation Laws in North Carolina, South Carolina, and Virginia, 1860–1960s, Akron Law Review 32 (1999): 557–576.

Cases and Statutes Cited

• Brown v. Board of Education, 347 U.S. 483 (1954)
• Korematsu v. United States, 323 U.S. 214 (1944)

See also Equal Protection of Law (XIV); Gay and Lesbian Rights; Marriage, History of; Police Power of the State