Happy Loving Day

Today is the 50th anniversary of the Supreme Court’s ruling in Loving v Virginia, which struck down state laws banning interracial marriage. It was a huge step forward for equality in this country and paved the way for other forms of marriage equality, including same-sex marriage.

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Despite the fact that 16 states forbid interracial marriage at the time, and public opinion was still strongly opposed to it, the ruling was unanimous and unequivocal that such laws were a violation of the Equal Protection Clause of the 14th Amendment. “Under our Constitution,” wrote Chief Justice Earl Warren, “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state.”

One of the really interesting things about this ruling is that it is now almost universally accepted, even by the most conservative legal thinkers. But it shouldn’t be, if they’re going to be consistent with their conservative version of originalism. That’s because the original public meaning of the Equal Protection Clause was clearly, unequivocally, that it would not overturn state laws against miscegenation.

That was a huge concern at the time. Miscegenation, or interracial marriage and cohabitation, was almost universally considered a great evil in the late 1860s, when the 14th Amendment was written and ratified. Every state forbid the practice and there was much concern that if the 14th Amendment was ratified, such laws would be at jeopardy. The framers of that amendment assuaged their fears, telling them that the amendment absolutely would not touch such laws, and it was ratified largely as a result of those assurances.

So if conservative originalists are consistent, they would have to take the position that the ruling in Loving was wrongly decided. And at the time, that was the consensus among conservative legal scholars and politicians. But this ruling is so universally accepted by the public today, and has been for decades, that they simply cannot take that position without losing their credibility. So they make an exception, or invent fanciful and inconsistent rationales for why they’re okay with that ruling when the logic of their interpretive theory clearly says they should oppose it.

They do this with many other rulings as well, including Brown v Board of Education and a whole raft of New Deal-era rulings. And they will soon do that with the same-sex marriage ruling as well. I predict that within 10-20 years, it will have 80% acceptance by the public and the conservatives who oppose it today, or their ideological descendants, will be forced to make a similarly inconsistent accommodation for it.

And within 30 years, they’ll be claiming credit for it. After all, the gay rights victories were all written by a justice appointed by (Saint) Ronald Reagan (the Magnificent)! See, they were on the side of equality all along! What’s that? Virtually every other conservative was against it? Let’s all just pretend that didn’t happen, just like they pretend that slavery was not overwhelmingly supported by conservative Christians. And women’s rights. And civil rights for blacks. And every other victory for justice and equality in the nation’s history.

Anyway, happy Loving Day.

About Ed Brayton

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.