The United State Supreme Court’s consideration of same-gender marriage in Obergefell v. Hodges on Tuesday compels comparison to the perfectly named 1967 case of Loving v. Virginia, where the court addressed bans on marriage between persons of different races. Reading Loving, these comparisons become apparent:
1The state’s purposes in the Loving appeal “were ‘to preserve the racial integrity of its citizens,’ and to prevent ‘the corruption of blood,’ ‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride.’ ” In Obergefell, the purposes argued will likely be “to preserve ‘the sanctity of marriage,’ ‘the historical tradition of marriage’ and ‘the purpose of marriage, which is to procreate.’ ”
2The Loving court addressed “a constitutional question never addressed by this court: 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 questions the Obergefell court will address for the first time are: “Does the Fourteenth Amendment require a state to license a marriage (or recognize a lawful out-of-state marriage) between two people of the same sex?”
3Prohibitions enacted relating to each ban were reactionary and born out of fear. The court in the Loving case noted that, “Virginia is now one of 16 states which prohibit and punish marriages on the basis of racial classifications. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War.”
In Obergefell, the court could note that Ohio “was one of 11 states which prohibited marriage between persons of the same gender solely by statute, and one of 31 states to do so by state constitutional amendment. The present statutory scheme dates from the adoption of the federal Defense of Marriage Act, passed in 1996, following attempts in Hawaii and Alaska by same-gender individuals to get married.”
4In an argument over the constitutional legal standard to be applied in Loving, the state argued that the constitutional test to be applied should be the least-restrictive, “whether there was any rational basis for a state to treat interracial marriages differently from other marriages.” This argument advanced by the state assumed the validity of its equal application theory, that “because its miscegenation statutes punish[ed] equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, (did) not constitute an invidious discrimination based upon race.”
In Obergefell, the state also argues that the legal standard should be the least-restrictive, the rational-basis test. Further, the state believes its laws “treat both genders equally; they do not favor one over the other.”
5The Loving court concluded that “(t)here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. … 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.”
The Obergefell court could hold “(t)here is patently no legitimate overriding purpose independent of invidious gender discrimination which justifies this classification. … There can be no doubt that restricting the freedom to marry solely because of gender classifications violates the central meaning of the Equal Protection Clause.”
Examining the closing words of the Loving opinion, we need only replace the words “racial” or “race” with “gender” to make clear the comparison:
“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.
“To deny this fundamental freedom on so unsupportable a basis as the racial (gender) 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 (gender) discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race (gender) resides with the individual and cannot be infringed by the state.”
Loving v. Virginia was reversed by the United States Supreme Court, and the marriage of the two wronged parties was validated. It is hard to imagine a different result with Obergefell v. Hodges.
Lydia E. Lavelle is an assistant professor of law at North Carolina Central University.