A Stitch in Haste

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.
--Loving v. Virginia

Today is the fortieth anniversary of Loving v. Virginia, 388 U.S. 1 (1967), in which the Supreme Court struck down anti-miscegenation statutes.

There will be no shortage of commentaries about Loving: examples at Lambda Legal, FindLaw Writ, Pam's House Blend, PurpleScarf.

For advocates of same-sex marriage, Loving is the beginning, but not the end, of the analysis as to what case law does and does not say about the issue. Anyone familiar with the debate knows the succinct response by bigots: "Loving was only about race."

This is, of course, utter nonsense. Loving was decided on two separate grounds:

1. Race (i.e., a suspect classification subject to strict scrutiny under the Fourteenth Amendment's Equal Protection Clause).

2. Fundamental rights (i.e., an infringement of a liberty interest under the Fourteenth Amendment's Due Process Clause).

Could the two prongs of Loving be untangled? Was Loving "only about race"?

That question was answered in 1978, in another marriage ban case, Zablocki v. Redhail, 434 U.S. 374 (1978). At issue in Zablocki was a Wisconsin statute that banned any person with minor children from a previous marriage from marrying again. Only those who could demonstrate to a judge that there was no reason to suspect that such children would become wards of the state could obtain an exemption. Stated differently, rich people with kids could divorce and remarry, but poor people with kids could not.

Race was in no way at issue in the law challenged via Zablocki. The Supreme Court had to confront, head on, the assertion that bigots repeat today: Was Loving "only about race"?

The Court ruled 8-1 that the Wisconsin law was unconstitutional:

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. ... More recent decisions have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause.

Bottom line: Loving was not "only about race." Marriage is a fundamental right, period, and the government needs a compelling reason to interfere with that right.

Another interesting point about Zablocki is that the (purported) goal of the invalidated statute was "protecting children." The government, it was asserted, had an interest in making sure that children were not conceived in poverty, and that a person's right to marry could be abrogated in order to foster stable households. Sound familiar?

The Supreme Court was not impressed:

We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained.

The fashionable — and thus far successful — approach of the bigots has been even less viable than the approach of the paternalists in Zablocki. By definition, there actually were children involved in any potential marriage blocked by the Wisconsin statute. But where gay marriage is concerned, the children are often hypothetical.

As I have explained previously: gay marriage bans designed to, somehow, "foster procreation" are both unconstitutionally underinclusive (we do not require married heterosexual couples to procreate) and overinclusive (we do not ban unmarried gay couples from bearing or raising children). If the "it's all about the children" basis of the Wisconsin statute failed to meet strict scrutiny, then how can a gay marriage ban possibly survive such scrutiny?

In this I think the advocates in the New York and Washington cases may have strategized poorly. Their briefs and their oral arguments in the appellate courts should have been "all Zablocki, all the time." Loving is a very sentimental case, one that this country should be very proud of. But it can also be a distraction.

(Incidentally, I see a similar tendency of gay rights advocates to rely too heavily on Lawrence v. Texas and too little on Romer v. Evans, which may be more arcane but is far more powerful as constitutional law, especially in the context of gay marriage. See, e.g., this post.)

Loving was too important a case not to commemorate on its fortieth anniversary. But at the same time, the stakes are too high to rely on sentimentality and the "easy cases." The bigots have concocted cockamamie "counterarguments" at every turn, including their disingenuous insistence that "Loving was only about race." Those who intend to spar with them must have the right weapons. Loving is not enough.