A Few Thoughts on the Right of Marriage

Mildred Jeter was born in 1939, only a couple of months before the official start of World War II.  A woman of mixed African and Native American heritage in the Jim Crow south, she grew up in a time and place where she was routinely treated as a second-class citizen because of her race.  Laws put in place after the collapse of Reconstruction in the late nineteenth century meant that things whites could do routinely and without penalty were forbidden to her.  In a world where schools and other public services are rigidly segregated, the idea of the United States as “the land of the free” is a vicious little joke played by those at the top on American citizens who differ from them on some supposedly important criteria.

She couldn’t even marry who she wanted, since Virginia – like the majority of states at the time – forbid interracial marriages.  Virginia’s Racial Integrity Act of 1924 declared that anyone with any trace of nonwhite ancestry (“blood” in the language of the day) was legally nonwhite, and that marriages between whites and nonwhites were banned.  Such bans were overwhelmingly popular among the white population, and opposition to them was rare enough to be noteworthy.

If rights really were legitimately subject to popular vote, interracial marriage would have failed miserably.

Richard Loving was, under the terms of the Virginia law, a white man.  By all accounts he was a fairly typical young man of the day in most respects.  He enjoyed hanging out with his friends, for example, and he took part in the innumerable drag races that were popular in that time and place.

What was perhaps not typical was that he also fell in love with Mildred Jeter, and after dating on and off for a couple of years, the couple was married on June 2, 1958, in Washington DC where such marriages were legal.  Afterward they returned to Virginia to set up house.  In later interviews both families seemed happy for Richard and Mildred.  The law was not.

On July 14, six weeks after their wedding, local police broke down their door at 2am and hauled them off to jail.  Mildred protested that they were married.  “Not here you’re not,” she was told. 

The Lovings were ultimately convicted of violating the Racial Integrity Act and effectively banished from Virginia.  In his ruling, Judge Leon Bazile stated that, “Almighty God created 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 level of historical ignorance that it takes even to conceive of such a statement – let alone say it in public, let alone say it from a position of authority – is staggering, but not anything unusual in context.

The Lovings lived in DC for a few years before deciding to challenge the law.  Their case wound its way through the justice system until it came before the US Supreme Court in 1967.  The arguments were fairly simple.  The attorneys for the Lovings argued that the law was a clear violation of the Fourteenth Amendment’s guarantee of the equal protection of the law and due process.  The Commonwealth of Virginia argued that the Fourteenth Amendment was not written to overturn bans on interracial marriages (bans which were common in 1868, when the amendment was ratified) and that interracial marriages were harmful to children because of the high rate of divorces in such marriage and the alleged mental instability of the people who would even consider such a thing.

Loving v. Virginia was decided unanimously.  The Court overturned Virginia’s law, and with it the laws of the remaining states who still had such laws by that point – no longer a majority of states, but a significant percentage nonetheless.  It is worth noting that those states could be easily defined: any state where you could legally hold slaves in 1861, when the Civil War broke out, still banned interracial marriage when this decision came down over a century later, and any state where you couldn’t do so did not.

The argument based on children was so utterly without merit and so obviously fraudulent that the Court dismissed it out of hand.  Virginia simply had nothing beyond conjecture and flawed data to back up its statements on this point.  Indeed, responding to the allegations of higher rates of divorces in interracial marriages, Justice Potter Stewart pointed out the circular nature of such reasoning.  “One reason that marriages of this kind are sometimes unsuccessful,” he noted, “is the existence of the kind of laws that are in issue here.”  Chief Justice Earl Warren did not consider the issue worth refuting at length in his final opinion, instead choosing focusing on the Constitutional question.

“This case presents a constitutional question never addressed by this Court,” noted Warren, “whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.” 

The answer, he wrote, was yes.

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival,” Warren concluded.  “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 convictions must be reversed.  It is so ordered.”

The reaction to this was, if anything, predictable.  Conservative fear mongers railed against the idea that blacks and whites would marry, settle down, have children, and be happy, seeing it as a sign of the end times, a dire threat to the purity of the white race, and part of a plot among liberals to destroy both the United States and their version of Christianity – a blinkered and unrecognizable faith dedicated more to the preservation of antebellum plantation society than the spreading of the Gospel.

From the perspective of 2015 it is clear that such reactions were both hysterical and wrong.  The world did not end.  The white race (however one cares to define that – nobody really has a standard definition, so pick whatever one that suits you and don’t forget to explain how such an arbitrary construct can be pure in the first place) has not been noticeably changed, and whether that counts as good or bad depends on your viewpoint I suppose.  The United States continues on its way toward whatever it would have been headed toward had this decision not happened at all.  The blinkered version of Christianity espoused by those fear mongers seems to be thriving more than ever, alas.  The only concrete thing that actually happened because of this decision is that a great many Americans were given the chance to enjoy a fundamental right that had previously been denied to them by bigots.

Win.

The issue of marriage came before the Supreme Court again this year, in a case known as Obergefell v. Hodges.  At issue were laws in Michigan, Kentucky, Ohio, and Tennessee that defined marriage as a union between one man and one women – effectively reserving marriage as a privilege to be enjoyed by heterosexual Americans rather than the “fundamental freedom” described by Chief Justice Earl Warren in 1967.

The plaintiffs argued that such laws were clear violations of the Fourteenth Amendment’s guarantees of equal protection under the law and due process.  The defendants argued that the Fourteenth Amendment was not written to overturn bans on same-sex marriage (bans which were universally understood in 1868, when the amendment was ratified) and that same-sex marriages were harmful to children. 

In a disturbingly narrow victory for marriage, a deeply divided Court overturned the laws restricting marriage to heterosexual couples.  The majority decision, written by Justice Anthony Kennedy, is very clear on this point. 

“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry,” wrote Kennedy, who went on to elaborate this point in later passages. 

“The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs” is one of those passages.  “The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet each may be instructive as to the meaning and reach of the other” is another. 

It’s pretty straightforward, really.

Like Warren, and for exactly the same reasons, Kennedy doesn’t really deal with the whole issue of children very deeply.  That argument is fundamentally inadequate from the get-go, based on conjecture and flawed data, and obviously not worth the space it would take up on the page.  Why, then, devote space to it?

Instead, Kennedy focuses on the Constitutional question, and the answer is clear.  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.  The judgment of the Court of Appeals for the Sixth Circuit is reversed.  It is so ordered.”

It is a sign of just how polarized American politics and culture have become in the last half century that so simple and obvious a decision was not unanimous but instead generated four separate dissenting opinions from the right wing of the Court, opinions ranging from the deranged (Scalia) to the petty (Roberts).

Justice Scalia’s main point – at least as far as I got into his opinion, since after the first few pages it began to get more than a little tiresome – is that “a majority of the nine lawyers on the Supreme Court” has somehow dared to determine what the Constitution actually means and how it applies to the law, and Justice Scalia finds this unacceptable.  I’m not sure how a sitting Supreme Court Justice can be so bone-ignorant about the proper role and function of the American judiciary and still draw a paycheck, but there it is.  Further, the fact that this complaint was repeatedly echoed in Chief Justice Roberts’ dissent is profoundly disturbing.  To be honest, Scalia’s opinion made me question his basic fitness for the job.  It’s pretty clear that he has abandoned all pretense of judicial professionalism and is simply there to present an extreme partisan viewpoint. 

Nowhere in his dissenting opinion, for example, does Scalia explain how the majority of the nine lawyers on the Court is illegitimate in this particular case, where Scalia is notably in the minority, and yet perfectly legitimate in other cases where Scalia is in a similarly narrow majority.  Just off the top of my head, I would inquire as how he would apply this dubious reasoning in such cases as DC v. Heller (which overturned centuries of legal precedent and the express intent of the Founding Fathers in order to declare gun ownership an individual rather than collective right), or the single most grotesque parody of a judicial decision of the last half century, Bush v. Gore (which appointed to the presidency a Republican with half a million fewer popular votes than his Democratic opponent, without even so much as an investigation into the widespread and substantial allegations of electoral fraud that gave that Republican his semblance of victory in the Electoral College).  But those cases furthered Scalia’s partisan agenda, and were thus somehow acceptably decided by that newfound terror in the legal system, “a majority of the nine lawyers on the Supreme Court.”

There’s also Chief Justice Roberts’ junior-high level invective (“Just who do we think we are?”) and petulance to consider.  “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it,” he declared, the foot stomping nearly audible as he did so. 

Well, actually, as the majority opinion makes perfectly clear, the Constitution has everything to do with it.  But that’s apparently beside the point for him.  As for me, I will indeed celebrate the Constitution and I will celebrate its direct relevance to this decision, and as I do so I will think joyful thoughts about how uncomfortable the whole issue obviously makes Chief Justice Roberts because I can be petty too.

The dissenting opinions also brought up the issue of children, because a) heterosexual couples who choose not to have children or who cannot, for whatever reason, have children, must not exist and therefore cannot be considered in this case, and b) the overwhelming evidence that children raised in stable homes with loving parents do better than children not so raised, regardless of the gender mix of the parents, is just science and science is clearly left-wing propaganda designed to make right-wingers look bad by comparing their talking points unfavorably to reality.

What is perhaps most disturbing in all this is that Clarence Thomas also wrote a dissenting opinion, one that had it been the majority opinion would have preserved the institution of marriage as a privilege for the majority rather than as a right for all American citizens.  Given that his own marriage would have been illegal in many states prior to the Loving decision, this is an odd position to take.  One wonders if he discussed it with his wife beforehand.

Thomas of course, argued that Loving and Obergefell were not analogous at all, and in this he was joined by his dissenting brethren (it’s worth noting that all of the women on the Court voted with the majority), who heaped all sorts of derision upon the very idea that Loving v. Virginia was at all relevant here. 

The majority opinion strongly disagreed, however, starting with the basic fact that “the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men,’” and returning to this theme repeatedly throughout the decision.

“The Court’s cases touching upon the right to marry reflect this dynamic,” wrote Kennedy, referring to the interplay between the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.  “In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: ‘There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.’  With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: ‘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 reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.”

Richard Loving died in a car accident in 1975, leaving Mildred a widow for the next three decades or so.  She never remarried. 

On the fortieth anniversary of the Loving v. Virginia decision, about a year before she died, Mildred Loving addressed the issue of marriage equality publicly.

“My generation was bitterly divided over something that should have been so clear and right,” she wrote.  “The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry.

“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.”

Mildred Loving’s statement is important, because – among other things – it gets to the idea of who owns the past.  She clearly felt that her own struggle in the 1950s and 1960s and the struggle for marriage equality here in the 21st century were the same.  Does Clarence Thomas have the right to deny it?

Does he?

Maybe he does.  Once you enter into the public sphere you lose control over how you are used by others.  You become a symbol for all sorts of people and causes you never wanted to be part of. 

On the other hand, though, Mildred Loving was the one who was there – it’s a story about her, after all –  and perhaps her views ought to be accorded more weight than those of Clarence Thomas.  Historians argue about this sort of thing all the time.  It’s one of the many reasons we’re fun at parties.

More importantly, however, while you can argue all you want over who owns the past it’s fairly clear who owns the future. 

In 1948, when California became the first state to legalize interracial marriage, roughly 90% of Americans opposed the idea.  In 1967, when Loving v. Virginia was decided, 72% of Americans still opposed the idea.  Interracial marriage didn’t command the support of the majority of Americans until 1991.

By contrast, at the time Obergefell was decided in 2015, a strong majority of Americans felt that marriage equality was in fact proper and Constitutional.  63% of Americans said ahead of time that the majority decision reached in Obergefell was the correct one – up from 49% in 2010.  This is especially true for younger voters.  A 2014 Pew Research Center survey found that 69% of Democrats and other liberals favored marriage equality, with 77% of younger Democrats doing so.  No age group of liberals was less than 62% in favor of marriage equality.  Further, in what rearguard right-wingers will no doubt see as a troubling sign, while only 39% of Republicans and other conservatives favored marriage equality and only 22% of those over 65 did, 61% of conservatives under 30 saw no justifiable legal or Constitutional barrier to marriage equality.  Indeed, 64% of self-identified Evangelical Christians under the age of 30 also support marriage equality in 2015 and did so even before the Obergefell decision was announced.

But in a sense, all that is beside the point.  However heartening it is to see majorities of Americans on both sides of our bitterly polarized political debates coming around to the simple idea that American citizens should be treated as American citizens, and however positive a sign it is for the future that this is rapidly becoming a settled issue, the fact is that there are limits to democracy and fundamental rights are among those limits.

The Supreme Court itself recognized this fact in West Virginia Board of Education v. Barnette (1943) when it noted that the entire point of the Constitution was “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”  The Court recognized, in other words, that  “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

As Justice Kennedy wrote when citing these passages, “It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.”

The answer, he wrote, was yes.

It’s been sixteen days since marriage equality became legal here in the United States.  The sky has not fallen.  My heterosexual marriage is just as stable as it was before.  God has not destroyed the nation – although, honestly, if we got a free pass for slavery, the destruction of Native American cultures, and the mere existence of Donald Trump, I can’t see how this would have tipped the balance – and in fact things seem to be going along just swimmingly, or at least just as swimmingly as before.  The only concrete thing that actually happened because of this decision is that a great many Americans are now being given the chance to enjoy a fundamental right that had previously been denied to them by bigots.

Win.

For all that the United States does well, the plain fact is that we get a lot of things wrong, too.  As a historian it is my job to study both the strengths and weaknesses of this country, and we have both of them in spades.  This time we got one right.  American citizens should be treated as American citizens.  It really is as simple as that.

“The arc of the moral universe is long,” said Martin Luther King Jr., echoing the nineteenth-century Transcendentalist, Theodore Parker, “but it bends toward justice.”

Justice has been done.  Love wins. 

It is so ordered.