June 12, 2015, marks the 48th anniversary of Loving v. Virginia, the Supreme Court decision that invalidated interracial marriage bans. Last year, Mark Joseph Stern compared oral arguments in Loving with arguments in Hollingsworth v. Perry and United States v. Windsor, noting that the arguments in defense of gay marriage bans are strikingly similar to those in defense of interracial marriage bans. His post is reprinted below.
Forty-seven years ago today, the Supreme Court handed down its opinion in Loving v. Virginia, striking down all interracial marriage bans as a violation of the 14th Amendment. The famous case has since served as the cornerstone of the legal battle for marriage equality: Gay marriage proponents seized upon Loving’s due process and equal protection rationales to make their case at the court.
Opponents of marriage equality, on the other hand, predictably tried to cordon off Loving, insisting that it was more a case about race than a case about marriage. Yet the legal teams dedicated to combatting gay marriage could never quite shake off the lingering legacy of Loving. Compiled below are highlights from oral arguments at the Supreme Court in Loving, side-by-side with arguments from the Proposition 8 and DOMA cases. See if you experience a sense of déjà vu hearing the arguments that didn’t work the first time being trotted out for another round of battle.
Argument: The state has a rational basis in keeping (interracial/gay) couples from getting married.
In Loving, R.D. McIlwaine III, the assistant attorney general of Virginia, repeatedly returned to the idea that its anti-miscegenation laws were perfectly “rational,” which would mean that the state had every right to adopt them without judicial interference. Here, he makes the case quite forcefully.
Now here’s Paul Clement, defender of DOMA, making a similar argument about rational basis (albeit one couched in more sophisticated euphemisms) in 2013.
Argument: The framers of the 14th Amendment never expected it to protect (interracial/gay) couples.
Loving’s dual due process and equal protection arguments both spring from the 14th Amendment, drafted and ratified shortly after the Civil War. Although the amendment was originally designed to protect free blacks, its protections have since been extended to women and, to some extent, gays. Originalists, of course, have no truck with such extensions, and opponents of women’s rights and gay rights have long pointed to the amendment’s history to make their case.
Here, McIlwaine argues that the Civil Rights Act of 1866—a direct predecessor of the 14th Amendment, whose protections the 14th Amendment aimed to codify into the Constitution—was not designed to protect interracial couples.
And here is Justice Antonin Scalia questioning—or really, lecturing—Ted Olson about the constitutionality of gay marriage at the time when the 14th Amendment was adopted.
Argument: The children of (interracial/gay) couples are disadvantaged because of their parents.
McIlwaine vigorously argued that children of interracial couples “have almost insuperable difficulties in identification” that cause “damage.” He also notes that biracial children are often referred to as “the victims of intermarried parents and as the martyrs of intermarried parents.”
Such wildly offensive language would never be spoken in the hallowed halls of the Supreme Court today—and, in fact, attorneys supporting Proposition 8 noticeably shied away from insisting that gay marriage is harmful to children. (One possible reason: It definitely isn’t.) But during oral arguments, Justice Scalia forced the issue, leading to this deeply awkward exchange:
Scalia need not call these children “victims”; the phrase “deleterious effect” carries his meaning well enough on its own. But while the precise terminology has changed, the arguments themselves have barely shifted. No matter how deftly they dress up their language in polite euphemisms, gay marriage opponents are still stealing directly from the Loving playbook. And it’s working no better today than it did 47 years ago.