Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyAugust 8th, 2011
I’ve seen a new meme coming out of the anti-gay echo chamber. It’s about Loving v. Virginia, the case that struck down laws against interracial marriage. Huge controversy there — some on our side believe the case sets a precedent for legalizing marriage equality; our opponents say, Nuh uh!
Lately, I’ve seen claims that the Supreme Court struck down the anti-miscegenation law because it only banned whites from marrying outside their race — not blacks, hispanics, or Asians. If the law had applied to all people, the Court would have left it in place.
Their point (I think — not always easy to tell), is that Loving v. Virginia doesn’t rule out bans on same-sex marriage because these laws do apply to all people and not just one group.
I don’t know whether this would be sound legal reasoning if it were true.
I do, however, know that it’s based on a lie factual inaccuracy. This is footnote 11 of the Court’s decision on Loving v. Virginia (skip to the end of the quote if you like):
Appellants point out that the State’s concern in these statutes, as expressed in the words of the 1924 Act’s title, “An Act to Preserve Racial Integrity,” extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia’s miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve “racial integrity.” We need not reach this contention, because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the “integrity” of all races.
I’ve bolded the relevant sentence. In other words, the Lovings did make this argument as part of their legal strategy against the law banning their marriage, but the Supreme Court explicitly said it’s not basing its decision on that particular piece.
I’m not sure anyone on the other side is actually lying when they get this wrong. I suspect someone messed up and said it, with complete sincerity. And then the rest are just repeating it without having checked it. That’s why it’s an echo chamber.
Here’s my fantasy debate on this point:
Them: The Supreme Court only struck down interracial marriage laws because they singled out whites!
Me: Nope. Check footnote 11.
Them: What?
Me: From the Court decision. You read it, didn’t you?
Them: No, I just — I heard it somewhere.
Me: Well, look, here it is.
Them: You’re — you’re right! Maybe some of this anti-gay stuff is wrong. I’ll have to rethink everything!
But this is more likely:
Them: The Supreme Court only struck down interracial marriage laws because they singled out whites!
Me: Nope. Check footnote 11.
Them: What?
Me: From the Court decision? You read it, didn’t you?
Them: You elitist homosexuals with your “research.” You can twist anything.
Me: But look —
Them: I don’t have to! I know what’s right! Typical left-wing propaganda. That’s why I trust Fox news.
Me: You don’t have to “trust” anyone. Just look at what the decision says.
Them: Now you’re against trust?? You really do hate traditional values, don’t you? You’re a moral relativist and you hate America!
Me: [speechless}
Them: Yeah, I thought so.
Sigh.
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Bruce Garrett
August 8th, 2011
But this is more likely…
I see you’ve been there before.
Paul
August 8th, 2011
I love your fantasy v. reality debate scenario.
SO TRUE.
No matter what strategies you use to beat down their bigotry, they persist, and it bugs the hell out of me.
Adam
August 8th, 2011
Best fantasy vs. reality debate ever!
WMDKitty
August 8th, 2011
So… wait. Why hasn’t anyone brought up Loving v. Virginia in an actual court case, yet?
Patrick Hogan
August 8th, 2011
This particular meme shows up all the time on NOM’s blog, and it’s usually followed by someone saying that gay and lesbian relationships discriminate against women and men, respectively, by not including both genders (a more hostile take on Gallagher’s “two great halves of humanity” talking point, though with even less substance).
Mike Rasor
August 8th, 2011
Having written a piece on Loving v. Virginia for my last year of law school, I think there needs to be a bit of clarification of what the court is saying. An equla protection analysis deals with both the end of a piece of legislation and the means used to achieve that end.
Foot note 11 is placed after a sentence where the court notes that the fact that the Virginia law only prohibits whites from marrying another race demonstrates that the law is designed to maintain white supremacy. This statement deals with the underlying end of the law. The footnote by contrast, deals with the argument that even if maintaining racial integrity was a sufficient government interest, only prohibiting white inter-racial marriages would not be the correct means of achieving that end.
In essence because the court finds the goal of the law is unconstitutional, it is irrelevant whether the means are correctly tailored to achieve that goal.
In terms of the anti-marriage equality argument, they are somewhat correct in that singling out whites demonstrates the unconstituional ends of the law. However, given the opinion as a whole, it seems more likely that the court used this piece of evidence to get at the larger principal that anti-misegenation laws were as a whole intended to further racial animus.
Lymis
August 9th, 2011
WMDkitty,
People HAVE brought up Loving in court. Repeatedly. It shows up in lots of the amicus briefs if nowhere else.
But as accurate and apparently obvious as the comparison and the conclusions from it are, it’s just fiddly enough to be something people can parse, so rather than try to hinge things directly onto Loving, most people just make the parallel case directly.
Since the Loving case dealt with race and not orientation (other than the de facto unstated idea that the Lovings were both straight), people who are hinging their anti-gay arguments on a difference between orientation and race will still fight the applicability of Loving. Among other things, it’s why there is such a die-hard conviction that orientation is chosen and is therefore a behavior, because if it isn’t chosen, the parallel to race becomes unassailable.
And, too, as has always been the case, the fact that the legal aspect of the racial question is largely resolved means that a lot of people now can pretend that “oh, of course, race has never mattered, and we all agree that it was just bigotry” but that their current biases and prejudices aren’t bigotry – just their own god-given right to an opinion.
Loving will definitely be something that courts look to as a precedent, and when the inevitable eventual Supreme Court win (now or in generations) happens, people will see them as parallel, but right now, the orientation case has to stand on it’s own merits, which are many.
EOJinDC
August 9th, 2011
@Mike Rasor, I didn’t go to law school, but I have a very strong public policy background that includes writing and passing laws in Congress.
Rob’s point about footnote 11 is on point, and the NOM nitwits et. al., are completely wrong. I wouldn’t group you with them, but you’re wrong as well.
It’s apparent that SCOTUS struck down the Virginia anti-miscegenation laws because the state, by it’s own admission, couldn’t demonstrate a “rational basis” for discriminating against anyone on the basis of race. Regardless of the state’s intentions, the law effectively discriminated against all races. A law that says whites are prohibited from marrying non-whites robs Asians of their liberty as well as white people. If an American of Asian decent was in love with and wanted to marry a white person, Virginia’s law denied their right to do so, and, as I’ve already mentioned, Virginia could not demonstrate, based on a “rational basis,” that the state benefited from for propagating the discriminatory laws.
I just re-read the decision, and it is replete with admonishments for discriminating against all Americans based on race. Specifically, it states, “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.'” Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
Furthermore, Virginia argued that, regardless of its law’s expressed intentions (to protect the white race), by handing out the same penalties to both sides, the law was constitutional. SCOTUS rejected that argument as well.
Summarily, Virginia said we are going to protect the white race by denying all races access to liberty, but it’s okay because we punish both sides equally. SCOTUS said, “That’s crap! You can’t say your bigoted goals and intentions are harmless because you punish those who violate the law equally. You’re still discriminating on the front end.”
EOJinDC
August 9th, 2011
I would add to the arguments made by Lymis, that the Obama Administration has said that Section 3 of DOMA is a violation of the equal protection clause and that laws directed at the LGBT community should be forced to pass the “strict scrutiny” test. Having that be the Justice Department’s official position gives them the freedom–actually, it makes it their job–to thoroughly explore and develop air tight arguments which state that limiting marriage to a man and a woman is a violation of the equal protection clause. It’s going to significantly erode any perceived distinctions currently being made between the Loving decision and marriage equality.
WMDKitty
August 9th, 2011
@Lymis
Thank you for answering my question.
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