Commentary

Advocates of Same-Sex Marriage Dishonor Loving Decision

By Lynn Wardle | June 14, 2017 | 9:52am EDT
Same-sex marriage advocates wave flags in front of the U.S. Supreme Court building. (Wikimedia Commons Photo)

Fifty years ago, on June 12, 1967, the Supreme Court of the United States announced its decision in one of the most important constitutional rulings ever rendered by the Court.  The case was Loving v. Virginia, 388 U.S. 1 (1967).  It is fitting to honor that historic decision. 

At issue in the Loving case was a Virginia law restricting interracial marriages – specifically banning intermarriage of blacks and whites.  The Court ruled that it violated the Constitution for a state to forbid the marriage of persons of different races.

From numerous perspectives and at multiple levels, Loving was an epic decision.  In terms of the personal story, social history, racial justice, profound social impact, constitutional protection for the fundamental associational unit of society, equal protection doctrine, due process of law, family law, and persuasive legal analysis, Loving was and is a truly monumental decision. 

At the personal level, Loving involved an epic love story of a young couple – a white man and a black woman living in rural Virginia.  It was a story of their love and their love of home, family and community that motivated the couple – who had been banned by judicial decree from living in Virginia – to fight for the right to return home and to raise their children in the safe, nurturing neighborhood in which they had grown up.

In terms of social history, Loving made racial integration a reality in a part of life (family relations) where racism had historically been strongest.  It provided true equality in the realm of life where connections and commitment matter the most. It made equal protection of the law a meaningful reality and due process of law a perceptible veracity.  It held that the Constitution protects the right to marry. That does not mean that some marital regulations and restrictions cannot be enacted, but that such regulations must relate to the purposes of marriage and proper state interests.

Contrary to stereotypes that racial discrimination was confined to the deep South, most states prohibited inter-racial marriages at one time or another.  By 1948 at least thirty-seven of the forty-eight states then in the American union banned or had prohibited inter-racial marriage.  Even progressive California had an antimiscegenation law until the California Supreme Court became the first court to invalidate such a law in Perez v. Sharp, 32 Cal.2d 711 (1948), nineteen years before the Loving decision.

In ruling that the Constitution prohibited states from barring inter-racial marriage, Loving established not only a national rule barring racial non-discrimination, but recognized the fundamental constitutional right to marry.  Establishing that basic right has benefitted all Americans who marry.

If imitation is the highest form of flattery, Loving may be the most highly-flattered decision in American legal history.  Because of its unparalleled importance, popularity, and success, Loving has been the standard reference invoked by advocates of various causes aspiring to civil rights legitimacy. 

Most prominently, Loving has been co-opted and aggressively expropriated by advocates of same-sex marriage.  Thus, the Supreme Court relied heavily upon the “Loving analogy” in its ruling in Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584 (2015) mandating legalization of same-sex marriage.  The Loving case was cited over twenty times in the various opinions in Obergefell, including at least eight times in the majority opinion alone. 

So, ironically, same-sex marriage was forced upon the states and upon the American people on the dubious authority of Loving v. Virginia.  That was a terrible misuse and distortion of the Loving precedent, but the fact that the Obergefell Court relied upon Loving so heavily shows how important, credible, and respected the Loving decision remains.

Many African-American leaders reject the premise of the Loving analogy that the movement to legalize same-sex marriage is a continuation of the fight to eliminate anti-miscegenation laws. Alvin Williams, then-President and CEO of Black American’s Political Action Committee explained: “[T]he civil rights movement and the issues that fostered the need for such a movement are unique and cannot be compared to the battle for gay rights.” 

Today, it is important to celebrate and honor Loving. Sadly, the misappropriation of Loving by advocates of same-sex marriage dishonored Loving. We can best honor Loving by repudiating Obergefell and same-sex marriage. Today is a day to celebrate Loving, not to distort it.  We honor Loving by standing up for marriage as the union of man and woman. 

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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