With the Supreme Court about to take up the momentous issue of marriage equality for gay and lesbian couples in Obergefell vs. Hodges (with oral arguments scheduled for April 28), it’s noteworthy that 48 years ago, the court heard oral argument in Loving vs. Virginia, which produced the court’s most important ruling vindicating the fundamental right to marry. Loving has figured prominently in lower-court decisions upholding the right of same-sex couples to marry, and has been relied on in Obergefell by those urging the court to strike down state laws denying that right.
At issue in Loving was the constitutionality of the laws of Virginia and 15 other states that in 1967 still prohibited interracial couples from marrying. Many of those states are among the dozen or so that today deny same-sex couples the freedom to marry and that are unlikely to do otherwise, absent a ruling from the Supreme Court.
Loving arose after Virginia criminally prosecuted Richard and Mildred Loving, an interracial couple, for having violated state law by getting married. They pleaded guilty, and the trial judge gave them the choice of spending a year in jail or being banished from the state for 25 years. Underscoring how Americans’ concept of fairness and equality has expanded over the course of our history, the judge also uttered words that most would view as abhorrent today:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
The Lovings wisely left Virginia, and subsequently brought a civil lawsuit, challenging the state’s discriminatory marriage law. In Loving, the Supreme Court unanimously held that laws prohibiting interracial marriage were unconstitutional. The ruling had two independent bases in the 14th Amendment: that the laws were racially discriminatory, in violation of the equal-protection clause, and that they denied interracial couples the fundamental right to marry, impermissibly infringing on the liberty interest protected by the due-process clause. As the court explained, “[T]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
Thanks to the Constitution — and the court’s enforcement of its protections — Richard and Mildred Loving were able to return to Virginia, where they lived as a married couple until 1975, when Richard was killed by a drunken driver. Mildred never remarried. On June 12, 2007, to celebrate the 40th anniversary of the court’s ruling in their case, Mildred issued a written statement detailing the history of their courageous battle, a statement that she ended with the following:
“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
“I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all.”
Sadly, Mildred Loving died a year later, at 68. She did not live to see marriage equality for gay people become a reality across America, but what a fitting tribute to Mildred and Richard Loving it would be for Obergefell to become this generation’s Loving. Mildred would not have wanted it any other way. After all, as she said herself in the final words of her 2007 statement, “That’s what Loving, and loving, are all about.”
Judith E. Schaeffer is vice president of the Constitutional Accountability Center, which filed a friend-of-the-court brief with the Supreme Court supporting marriage equality. She wrote this article for the Philadelphia Inquirer.