In a concurring opinion to Friday’s Supreme Court ruling overturning Roe v. Wade, Justice Clarence Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” The rulings Thomas referred to guarantee the right to contraception, same-sex relationships and same-sex marriages.
But those substantive due process precedents also include Loving v. Virginia, the Supreme Court’s 1967 decision that says that laws banning interracial marriage violate the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution. And Justice Clarence Thomas, a Black man, is married to Virginia "Ginni" Thomas, who is white.
Unlike Thomas, the other justices, both conservative and liberal, contended with what Friday’s decision could mean for cases that include Loving, and seven mentioned Loving by name.
But the only African American on the Supreme Court, and the only Supreme Court justice in an interracial marriage, doesn’t mention Loving at all. Though Thomas argues that all those other precedents should be reconsidered, he implies by his silence that the one that affects him personally is sacrosanct.
Loving v. Virginia, 388 U.S. 1 (1967), was a landmark civil rights decision of the U.S. Supreme Court in which the Court ruled that laws banning interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution.[1][2] Beginning in 2013, it was cited as precedent in U.S. federal court decisions holding restrictions on same-sex marriage in the United States unconstitutional, including in the 2015 Supreme Court decision Obergefell v. Hodges.[3]
The case involved Mildred Loving, a woman of color,[note 1] and her white husband Richard Loving, who in 1958 were sentenced to a year in prison for marrying each other. Their marriage violated Virginia's Racial Integrity Act of 1924, which criminalized marriage between people classified as "white" and people classified as "colored". The Lovings appealed their conviction to the Supreme Court of Virginia, which upheld it. They then appealed to the U.S. Supreme Court, which agreed to hear their case.
In June 1967, the Supreme Court issued a unanimous decision in the Lovings' favor and overturned their convictions. Its decision struck down Virginia's anti-miscegenation law and ended all race-based legal restrictions on marriage in the United States. Virginia had argued that its law was not a violation of the Equal Protection Clause because the punishment was the same regardless of the offender's race, and thus it "equally burdened" both whites and non-whites.[4] The Court found that the law nonetheless violated the Equal Protection Clause because it was based solely on "distinctions drawn according to race" and outlawed conduct—namely, getting married—that was otherwise generally accepted and which citizens were free to do.[4]
Anti-miscegenation laws in the United States
Anti-miscegenation laws had been in place in certain states since colonial days. In the Reconstruction Era in 1865, the Black Codes across the seven states of the lower South made interracial marriage illegal. The new Republican legislatures in six states repealed the restrictive laws. By 1894, when the Democratic Party in the South returned to power, restrictions were reimposed.[5]
A major concern was how to draw the line between black and white in a society in which white men had many children with enslaved black women. On the one hand, a person's reputation as black or white was usually what mattered in practice. On the other hand, most laws used a "one drop of blood" rule, which meant that one black ancestor made a person black in the view of the law.[6] In 1967, 16 states still retained anti-miscegenation laws, mainly in the American South.[7]
