Jenna Goldman '18
In honor of the 50th Anniversary of Loving v. Virginia, the Virginia Journal of Social Policy & the Law convened the symposium “Loving: Yesterday, Today and Tomorrow” to celebrate the landmark decision that toppled anti-miscegenation laws in the United States and breathed new meaning into the Fourteenth Amendment.
The two-day series of speakers and panels began with an introduction from Dean Risa Goluboff followed by the keynote address by Dean Erwin Chemerinsky of Berkeley School of Law. Arguably the foremost expert on constitutional and civil rights law today, Dean Chemerinsky has authored ten books—two of which were released in 2017—and 200 law review articles.
“Though there is a long way to go; focusing on Loving v. Virginia gives us a glimpse of how much the world has changed.” Dean Chemerinsky cited a continuing study that asked individuals if they would oppose a family member marrying someone of a different race. Beginning in 1957, 80% of people said they would oppose, then in 1990 that number dropped to 63%. When the same question was posed in 2017, it fell to only 11% in opposition. This shows a remarkable shift in attitude, noted Chemerinsky, especially considering 40% of Americans would disapprove of a family member marrying someone of a different political party.
Loving was the ideal vessel for illustrating the white supremacy behind anti-miscegenation laws and further elevating marriage to a fundamental right. “Not even a law professor on an exam could come up with a better name,” joked Dean Chemerinsky.
The couple’s apt surname stands in contrast to the heartbreaking facts of the case. When the police raided the Lovings’ home, the couple pointed to the marriage certificate they received in Washington, D.C. as they were arrested. Mr. Loving, a white man, walked out of jail the next morning while his wife, a black woman (though she stated to the police that she was of Native American decent) and pregnant with the couple’s first child, was left in custody for several more days. The Lovings would eventually plead guilty to the misdemeanor offense of violating Virginia’s 1924 Racial Integrity Act.
In terms of the case’s impact on constitutional law, Loving seemingly ended the “formal equality” approach of interpreting the Fourteenth Amendment. Virginia’s primary argument was that the law treated whites and blacks the same, and therefore, was allowed to stand. Remember, Plessy v. Ferguson was based on this view of “formal equality,” better known as “separate but equal.”
Chemerinsky noted that Brown v. Board of Education did not denounce the reliance on formal equality as a model; the decision was narrowly tailored to education, not on the inherent inequality of segregation.
Loving is crucial in a more subtle way: Virginia was eventually forced to defend the law on the grounds that tradition justifies the continuation of the discriminatory law. That argument did not go over well with the Warren Court.
“We should celebrate Loving v. Virginia as a triumph, but we should also regard it as a failure,” referring largely to the year it was decided.
“I am very critical of the Supreme Court for waiting so long to decide that laws prohibiting interracial marriage were unconstitutional under the Fourteenth Amendment.” Laws that prohibit interracial marriage were common throughout the United States, not just in the South. Nearly every state had, at some point, the restriction on the books, however, the California Supreme Court overturned the anti-miscegenation law in that state in 1948. “What took the Supreme Court so long to follow in the footsteps of a state supreme court?”
The Supreme Court had the opportunity to overturn anti-miscegenation laws in 1955 with Naim v. Naim. The Supreme Court seemingly refused to hear the case because it was “too soon” after Brown v. Board of Education. Chemerinsky said the Supreme Court abdicated its role; the Court should have decided the case because it was its duty to decide cases pursuant to the Constitution, not to pick and choose what to hear based on what is politically palatable.
Chemerinsky argued that taking another important civil rights case soon after Brown would have affirmed the decision’s force that the Equal Protection clause was not about formal equality, but about anti-subordination. It took the Court thirteen years to state this specifically. “We should have expected more from the Supreme Court in 1967,” he said.
Famously, Richard Loving, who did not attend the oral arguments before the Supreme Court told his lawyer to “tell the Court that I love my wife, and it’s just not fair that I can’t live with her in the State of Virginia.”
After Dean Chemerinsky’s address, “Loving” was screened on Main Grounds along with a panel discussion comprising Liza Ayers ’19, Professor Sylvia Chong, Professor Susan Fraiman, and Professor Lisa Woolfork from the University of Virginia English Department.
The symposium continued the following day with a panel on “Loving’s Meaning” moderated by UVa Law’s Professor Danya Bowen Matthew with Professor Katherine Franke of Columbia Law School, Professor Randall L. Kennedy of Harvard Law School, and Robin A. Lenhardt of Fordham Law School. The panel discussed the nuanced history of the case, and built on Dean Chemerinsky’s critique.
“This case was the first time the Supreme Court acknowledged that white supremacy played a role in the continuation of anti-miscegenation laws,” noted Professor Franke.
Professor Lenhardt expanded, “To fully understand what Justice Warren was doing with the anti-white supremacist language, you need to read Loving in direct connection to Brown. Loving is here to focus us on other areas outside of school.”
She looked to the transcript of the oral arguments and discussed where Chief Justice Warren asked the lawyer for Virginia why the same sixteen states that have anti-miscegenation laws were the same sixteen states that had segregated schools. “You can see that Warren is attempting to make a connection to Brown, but the point was anemic.” Professor Lenhardt urged courts and academics to learn from the decision and do a better job at making connections between race and other arenas such as housing, poverty, and gender.
When asked about the importance of the unanimous decision, Professor Kennedy responded, “Unanimity is overplayed: the Court has given up too much in the pursuit of unanimity. There only needs to be five votes to write with the authority of ‘The Court.’”
The next panel was moderated by Professor Deborah Hellman of UVa Law and joined by Professor Kim Forde-Mazrui of UVa Law and Professors Melissa Murray and Angela Onwuachi-Willig of Berkeley Law, focusing on “Loving as a means of social and legal transformation.”
Professor Murray’s remarks reminded attendees that “legalization does not mean complete acceptance nor the de-regulation by the state.” Loving is not a magic bullet, there is always more work to be done and rights are always subject to erosion if we do not diligently protect them.
Professor Onwuachi-Willig discussed that erosion of the Equal Protection Intent Analysis outlined in Loving. In 1976’s Washington v. Davis, the Court upheld a test (called Test 21) administered by the D.C. police department. The Court decided that proof of discriminatory intent was not needed to prevail on their Equal Protection and that the invidious quality of a law must be traced to a racially discriminatory purpose.
Professor Onwuachi-Willig presented the comically difficult and irrelevant questions from Test 21, including a question about the “history of the date fruit.” The 80% white department policed a city with a 70% black populace, yet the test did not rise to the bar of “discriminatory intent.”
Professor Forde-Mazuri discussed the crux of one of his latest papers, “Should Obergefell have been more like Loving and less like Brown?” There was no blame in the judgment in Brown (just as there was no blame placed on homophobia in Obergefell), whereas in Loving, blame was placed squarely on states for propagating the white supremacist view of “preserving the white race.”
The symposium ended with a panel on “Loving’s Promise for LGBTQ Communities,” moderated by Professor Micah Schwartzman of UVa Law. Loving was cited in the Obergefell v. Hodges decision that ended restrictions on same-sex marriage in the United States. Professor Holning S. Lau of UNC School of Law, Professor Dough Nejaime of Yale Law School, and Professor Catherine Smith of University of Denver Strum College of Law explored the various ways the logic in the Loving decision could be applied to contemporary cases, especially in the forthcoming case Masterpiece Cakeshop.
Editor-in-Chief of the Journal of Social Policy & the Law Alli Herzog ‘18 said the idea of the symposium was the brainchild of Professor Onwuachi-Willig and Professor Kerry Abrams of UVa Law. The journal enthusiastically sponsored the event and will publish several short pieces by professors about Loving in their spring issue.