I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Some notes on Loving v. Virginia and the Prop 8 opinion

Questions being raised here and there have sent me back to re-read Loving v. Virginia, the case where the United States Supreme Court held that bans on interracial marriages were unconstitutional. There are several things of interest in evaluating yesterday’s Proposition 8 opinion. First, the decision rests on two independent rationales– first, that the Equal Protection clause prohibits that sort of racial classification, and, second, that the statute offends due process because marriage is a fundamental right. The second holding is specifically relied upon in the Proposition 8 case. While the importance of race as a factor in both holdings should not be underestimated, it is clear that the reasoning of the second due process holding relies heavily on the importance of marriage as a “basic civil right of man,” as the opinion puts it. The second point of interest is the way the court gives the back of its hand to the state’s argument that the statute was constitutional because it applied equally to whites and blacks and therefore was not racially discriminatory. I’ve seen arguments (including in comments on this blog– one linked in the 2nd link above) that bans on gay marriage are ok for a similar reason. That “reasoning” is clearly rejected in Loving:

[T]he State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element [p8] as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. …

Because we reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.

The due process analysis is even more interesting:

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.

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