There’s a lot of loose talk going around about the potential consequences of the Court’s pending decision to overrule Roe v. Wade. Among other things, some serious people, such as several law professors in this Vox symposium, are suggesting that the Court may overrule Loving v. Virginia, which held that interracial marriages are unconstitutional. After all, if abortion is not a firmly established historical right protected by the Due Process Clause, then perhaps neither is interracial marriage.
There are three reasons why Loving is safe.
First, over ninety percent of Americans approve of interracial marriage (compared to four percent in 1958!). Even more presumably think it should not be illegal, even if they disapprove of it. As a result, no state is going to ban interracial marriage, so no case will come to SCOTUS.
Second, overruling Loving would be politically unthinkable. The Supreme Court does not just follow the election returns, but it also does not go out of its way to overturn firm precedent that has the support of over ninety percent of the public and the demise of which would cause mass bipartisan public outrage.
Third, and most important, the Loving decision invalidated bans on miscegenation first and foremost on equal protection grounds, as an illegal racial classification, with the due process right to marriage only a secondary rationale. In the very unlikely event the Court were inclined to revisit the due process right to marry, Loving would be safe because of its equal protection holding.
While the state court is no doubt correct in asserting that marriage is a social relation subject to the State’s police power, Maynard v. Hill, 125 US 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska, 262 US 390 (1923), and Skinner v. Oklahoma, 316 US 535 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equal marriage both the white and the Negro participants in an interracial participants, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes whether of their reliance on racial classifications, the question of constitutionality would thus become there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.
Because we reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 US 106 (1949), or an exemption in Ohio’s ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, Inc. v. Bowers, 358 US 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to the race.
The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes, and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem that, although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments, and wished them to have the most limited effect.”
Brown v. Board of Education, 347 US 483, 347 US 489 (1954). See also Strauder v. West Virginia, 100 US 303, 100 US 310 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 US 184 (1964).
The State finds support for its “equal application” theory in the decision of the Court in Pace v. Alabama, 106 US 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a higher penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated “Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this court.” McLaughlin v. Florida, supra, at 379 US 188. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the states. Slaughter-House Cases, 16 Wall. 36, 83 US 71 (1873); Strauder v. West Virginia, 100 US 303, 100 US 307-308 (1880); Ex parte Virginia, 100 US 339, 100 US 334-335 (1880); Shelley v. Kraemer, 334 US 1 (1948); Burton v. Wilmington Parking Authority, 365 US 715 (1961).
There can be no question but that Virginia’s statutes rest due upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]stinctions between citizens and citizens because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 US 81, 320 US 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States, 323 US 214, 323 US 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some objective state, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they “cannot conceive of a valid purpose whether . . . which makes the color of a person’s skin the test of his conduct is a criminal offence.”
McLaughlin v. Florida, supra, at 379 US 198 (STEWART, J., joined by DOUGLAS, J., concurring).
There is patently no legitimate overriding purpose independent of invidious discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. [Footnote 11] We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry because of racial classifications violates the central meaning of the Equal Protection Clause.
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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. Skinner v. Oklahoma, 316 US 535, 316 US 541 (1942). See also Maynard v. Hill, 125 US 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial 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 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.
These convictions must be reversed.