By Professor Christopher Schmidt.
Today marks the 47th anniversary of Loving v. Virginia, the Supreme Court decision striking down bans on interracial marriage in sixteen states. The case was argued on April 10, 1967, and announced just two months later, on June 12.
Looking back at the oral arguments in the case, several points stand out. First, the momentum in the case was clearly on the side of those challenging the offensive laws. The winds of change were behind them, and the Justices were clearly with them. Philip J. Hirschkop, the ACLU lawyer who made the equal protection argument for the challengers (another lawyer made the due process argument) spoke with almost no interruption from the bench. His central argument was stark and direct. “You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law,” he told the Justices. He later made the point more concisely: “These are slavery laws pure and simple.” Hirschkop also compared the law to the policies of Nazi Germany and South Africa. Those who passed these laws “were not concerned with the racial integrity,” he argued, “but racial supremacy of the white race.”
When Virginia’s assistant attorney general defended his state’s anti-miscegenation policy, by contrast, he faced an engaged and skeptical bench. Chief Justice Earl Warren and Justice Hugo Black were particularly aggressive. Virginia’s legal defense had two prongs. Its primary argument was based in history. The framers of the Fourteenth Amendment did not intend it to prohibit these kinds of regulations, and therefore the Court should not read it to do so. (The challengers countered that the proper originalist analysis should not focus on the narrow intentions of the framers but on the more general purposes of the Amendment.) Virginia’s lawyer knew that this was his strongest line of argument and he spent most of his time elaborating on it. The problem here—as he surely knew—was that he was talking to a Court that simply did not feel constrained by these kinds of arguments.
Virginia’s second line of defense was that the state had a rational basis for its policy. These were the arguments that led Chief Justice Warren and Justice Black to lash out at the attorney. The core of this argument, in the words of the assistant attorney general, was that according to “the most recent available evidence on the psycho-sociological aspect of this question … intermarried families are subjected to much greater pressures and problems then those of the intramarried.” For this reason, Virginia’s “prohibition of interracial marriage … stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.” In challenging these kinds of claims that anti-miscegenation policy was intended to promote social welfare, Chief Justice Warren looked back to the Brown v. Board of Education decision he had written thirteen years earlier. “[D]idn't we in the segregation cases have also argued to us what was supposed to be scientific evidence to the … effect that whites would be injured by having to go to school with … the Negroes?” he asked. In response, Virginia’s lawyer insisted that with regard to miscegenation, the scientific evidence is “voluminous in its character” and it “supports the view not of racial superiority or inferiority, but a simple matter of difference.” Warren at one point noted that the list of states that had school segregation laws in 1954 and the states that have miscegenation laws in 1967 was nearly identical. At the conclusion of the lawyer’s presentation, instead of the Chief Justice’s traditional “thank you,” a clearly disgusted Warren could only muster a dismissive “I see.”
Justice Black’s skepticism also hearkened back to his experience in Brown. When Virginia’s lawyer referenced what he characterized as the extensive and conflicting scholarship on the societal effects of interracial marriages, Black stepped in. “[A]side from all questions from the genetics, psychology, psychiatry, sociology, and everything else aside from all of them, forgetting it for the moment, is there any doubt in your mind that the object of this statute, the basic premise on which they rest, is that the white people are superiors of the colored people and should not be permitted to marry?” Black had been dismissive of the sociological and psychological materials that had made its way into the Brown decision. He had framed the issue in that case in similarly stark terms, telling his colleagues he did not need social science to tell him about the meaning and effects of racial segregation.
Another striking moment at oral argument came when Bernard S. Cohen, the lawyer who was responsible for making the due process-based challenge to the anti-miscegenation statute, framed the possible legal pathways for identifying marriage as an unenumerated fundamental right under the Constitution. He offered up the following marathon sentence—one that could only be offered (with a straight face) to the Supreme Court at the high-water mark of the Warren Court:
Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko v. Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Meyer v. Nebraska and Skinner v. Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment.
Wow. The possibilities here! For the ambitious liberal cause lawyer, it must have been quite an experience standing before the Justices in 1967 and charting the potential courses the Warren Court might strike out on.
Then there was the moment during oral arguments when one of the lawyers for Richard and Mildred Loving, the mixed-race couple who were married in Washington, D.C., and then arrested when they attempted to return to their native Virginia, put the case in the most personal possible terms: “[N]o matter how we articulate this, no matter which theory of the Due Process Clause or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, ‘Mr. Cohen, tell the Court I love my wife and it is just unfair that I can't live with her in Virginia.’”
Finally, one cannot listen to the oral arguments in Loving without hearing echoes of our current debate over the constitutionality of bans on same-sex marriage. We hear the same basic arguments blending equal protection and due process claims. We hear challengers frame the issue in personal and moralistic terms while defenders rely on originalist arguments, social scientific debates, and pleas for judicial deference. And we see the tide of history turning in the space of a single generation. When the Court had an opportunity to strike down Virginia’s anti-miscegenation law soon after Brown, it avoided the issue as too controversial, as potentially too damaging to the Court. By 1967, the civil rights movement had transformed the terms of debate. The Loving ruling would be unanimous.