Via Shakespeare's Sister, I see that Mildred Loving died. Loving was one of the litigants in the famous and perfectly named Loving v. Virginia, in which the Supreme Court struck down Virginia's miscegenation statute. Loving stood up.
Loving and her husband were convicted under Virginia's bigoted miscegenation statute and agreed to leave the state for 25 years to avoid jail. Later, with the encouragement of Robert Kennedy and the ACLU, they sued to overturn the statute and eventually won. That level of support distinguished them from some who had an even lonelier road in even more unfriendly times, but it still took immense courage to take on the strong and furiously held social and legal norms against interracial marriage in the 1950s and 60s.
The Supreme Court's decision, when you think about it, is remarkably recent — 1967, just two years before I was born, and less than two generations. And the opinion reflects that 18 states thought it was appropriate to dictate whether one should marry someone of a different skin color. Virginia's courts upheld the statute "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'" — and advanced those goals openly and frankly.
In its opinion, the Supreme Court devotes a considerable amount of analysis to the equal protection issue (rejecting, in the course of that analysis, the now-familiar argument that the law does not violate equal protection because blacks and whites are equally prohibited from marrying the other), but gives a curiously concise statement of the due process basis of its opinion:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). 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.
These days such analysis would no doubt be derided as judicial activism. But the message — that marriage is a fundamental right, and that racism is not a government interest that can be respected or used as a justification to trammel it — is powerful, even 41 years later. It's more powerful because it was unanimous. Loving is perhaps the high-water-mark for the judiciary protecting individual liberty from the irrational prejudices of the majority. I doubt we will pass that way again in my lifetime, regrettably.
Far more people tolerate interracial relationships now than did in 1967. But a discouraging percentage still disapproves — about 3 out of 20, in the linked poll. What's wrong with them?
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