Image from Flickr via @Doug88888

By Ciara Torres-Spelliscy

As I tell my law students, Loving v. Virginia is my all-time favorite Supreme Court case. This is so for very selfish reasons. Without Loving, my parents could not have been married in the Commonwealth where I grew up. Loving is the 1967 case in which the Supreme Court struck not just Virginia’s anti-miscegenation law, but also similar laws in 15 other states. Before Loving, blacks and whites could not marry in Virginia. Mildred and Richard Loving (a black woman and a white man) were jailed for marrying in Washington, DC and returning to their home in Caroline County, Virginia.

With two gay-marriage cases pending before the Court right now, with oral arguments scheduled for March 26 and March 27, I hope the Justices get that Loving feeling once again.

It’s hard to fathom that interracial marriages were a crime, especially for the two generations born after the decision. In the Loving case, the state court judge ruled that God himself had purposefully separated the races and that therefore Virginia’s law was morally compelled.

The judge wrote: “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.”

Now that some states recognize gay marriage, gay couples find themselves in legal limbo.

He sentenced the couple to 25 years of banishment outside of Virginia. When they returned home for an Easter visit, they were arrested again.

The unanimous Loving Supreme Court decision reversed the Virginia courts. Chief Justice Earl Warren, using his customary poetic flourishes, wrote: “the freedom of choice to marry [should] 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.”

The case held that Virginia’s anti-miscegenation law was a violation of equal protection because the state discriminated against couples based on race. But the Court doubled down in the case, also finding that marriage was a fundamental right protected as a matter of substantive due process. Under substantive due process, individuals possess certain fundamental rights that cannot be revoked by the government even if procedural due process is followed—unless the government successfully provides a very strong reason for the deprivation. In other words, the Supreme Court deeming marriage a fundamental right gave it an exalted place in the constitutional pantheon.

The present Supreme Court had ten different gay marriage cases to choose from this term. The Court decided to hear two cases; each raises distinct constitutional issues. Windsor v. United States challenges the federal Defense of Marriage Act (DOMA), which defines marriage for the purpose of federal benefits, as a violation of equal protection under the Fifth Amendment using heightened scrutiny. When a court uses more probing “heightened” scrutiny, defending discrimination is more difficult for the government.

When DOMA became law in 1996, gay marriage was not legal anywhere in the U.S. That, of course, has changed. Nine states and DC perform and recognize gay marriages. Now that some states recognize gay marriage, gay couples find themselves in legal limbo: their state may consider them married while the federal government simultaneously considers them single.

The Warren Supreme Court likely knew that certain states were not completely “ready” for interracial marriage, but it mustered the necessary courage to do the right thing for the nation as a whole.

The second case, Perry v. United States, challenges California’s Prop. 8, which changed California’s definition of marriage to be exclusively heterosexual to negate the California Supreme Court’s ruling that both gay and straight couples are allowed to marry under the state’s constitution. This case frames Prop. 8 as a denial of equal protection by the state’s stripping away pre-existing rights under the Fourteenth Amendment based on irrational animus towards gay people.

Because of the different constitutional questions raised in these two cases, the Court has the opportunity to reach a split decision. They could, for example, find that Congress did not have the power to enact DOMA on federalism grounds, and yet leave Prop. 8 in place—banning gay marriage in California—America’s most populous state. Such a decision would leave gay marriage to the vagaries of the electoral process, in which voters could deny their fellow citizens equal treatment under the law.

Under a split decision, gay marriage could be banned in one state and allowed in others. Because we are such a mobile society, inevitably gay couples married in one state would move to a state which bans gay marriage, creating problems akin to those the Lovings faced fifty years ago. Leaving Prop. 8 intact would mean delaying until another day a host of legal problems that could—and should—be resolved now.

The second selfish reason I adore Loving is that this case allowed me to marry my husband.

Considering the Court’s latent hostility to Congress, expressed in the recent Affordable Care Act case where the Justices limited Congress’s spending power, these gay marriage cases may well turn on a states’ rights argument. If the Court goes this way, they will likely reason that until 1996 marriage had always been defined by the states, therefore Congress had no right to usurp the states’ power. But this is a recipe for continuing acrimony and lawsuits. A more stable foundation would be to find that as a matter of equal protection gay couples—no matter what state they live in—cannot be treated as second class citizens.

The Warren Supreme Court likely knew that certain states were not completely “ready” for interracial marriage. But it mustered the necessary courage to do the right thing, not just for the Loving family, but for the nation as a whole.

The Roberts Supreme Court should have courage to rule for marriage equality in both cases so that gay couples have the uniform legal protections everywhere in America under both federal and state law. If the ability to marry the person of one’s choice was fundamental in 1967; then that right remains fundamental now.

The second selfish reason I adore Loving is that this case allowed me to marry my husband. I consider marriage to be a basic human right—one that must be extended regardless of the genders involved. Mildred Loving agreed and before her death she too endorsed marriage equality.

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Ciara Torres-Spelliscy is an Assistant Professor at Stetson University College of Law where she teaches Constitutional Law. She is a co-author of “Improving Judicial Diversity.”

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