The Roberts Court and Questions of Equality

June 12, 2013

by Jeremy Leaming

Forty-six years ago the U.S. Supreme Court in a bold move for equality invalidated state laws banning interracial marriage.

The case, Loving v. Virginia, centered on a Virginia law barring marriages between people of different races, but its outcome was sweeping, leaving similar laws constitutionally suspect. The law was challenged as a violation of the Constitution’s Equal Protection and Due Process Clauses. It involved an interracial couple, residents of Virginia, who married in the District of Columbia, which did not have a racist ban on marriage. When Mildred Jeter, an African-American woman, and Richard Loving, white, returned to Virgina they were eventually charged with and convicted of violating the law.

The couple challenged the conviction, lost in the lower courts and the Supreme Court took the case for review.

Writing for the majority, Chief Justice Earl Warren noted that Virginia was one of 16 states that prohibited such marriages. “Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period.”

The Warren majority, however, concluded that such laws could not comport with the Constitution’s promise of equality and due process under the law.

“There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race,” Warren wrote. “The Statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subject to the ‘most rigid scrutiny,’ and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”

Warren continued, “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”

A very different Supreme Court has several cases in front of it that raise questions of equality, two of them involving marriage. In Hollingsworth v. Perry, the high court is considering constitutional challenges to California’s ban on same-sex marriage, and in U.S. v. Windsor the justices are considering similar challenges to the so-called Defense of Marriage Act, which denies same-sex couples thousands of federal benefits because it bars the federal government from recognizing such marriages. (Twelve states and the District of Columbia recognize same-sex marriage.)

The Roberts Court could issue opinions in the cases any day now. It could dismiss the Prop 8 case on standing and invalidate DOMA on federalism grounds, not reaching whether laws that target LGBT persons for disfavored treatment should be subject to a heightened scrutiny. The Warren Court did not leave the question of equality to the states, recognizing marriage as a civil right that could not be breached by “classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment ….”

It would be a significant setback for equality if the Roberts Court were to leave the question of marriage equality to the states. Polls show strong majorities of Americans support marriage equality, but far too many state lawmakers are mired in the past and unlikely to champion equality for LGBT persons anytime soon.