The case of Obergefell v Hodges was a landmark case for same-sex marriage. The case revolved around several same-sex couples suing their prospective states for their marriage to be upheld and recognized in their states. The group was challenging that their refusal to recognize same-sex marriage was a violation of the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. One group also brought claims under the Civil Rights Act. In all trial court cases, the courts found in favor of the plaintiffs. The U.S. Court of appeals reversed the opinion. It held that the states ban on same-sex marriage and refusal to recognize marriages performed in other states did not violate the couple’s Fourteenth Amendment rights to equal protection and due process. The case moved forward to the U.S. Supreme Court. Two questions were asked of the U.S. Supreme Court: (1) does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment need a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state? The U.S. Supreme Court in a 5-4 decision of “yes” to both questions. Justice Anthony Kennedy delivered the opinion that “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex” (Obergefell v. Hodges, 576 U.S. ___ (2015), n.d.). The opinion goes on to talk about three individual instances where same-sex couples experienced hardships due to same-sex marriage laws. The story was meant to show that their decisions are not seeking to denigrate marriage, but to let people live their lives, hour their spouses, and be joined in bond (Obergefell v. Hodges, 576 U.S. ___ (2015), n.d.). The rights of gays and lesbians since the pre-20th century have always been faced with ridicule and suggestions that their homosexuality is a mental illness. History is full of examples where groups stood up for their rights against what is considered the norm, to be free to vote for whatever injustice was there. So, no matter which side of the fence you stand on with the same-sex marriage, the legality of the issue was that a group of people was being denied their life and liberty based on their personal choice. Justice Kennedy wrote, “These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process” (Obergefell v. Hodges, 576 U.S. ___ (2015), n.d.). ReferencesMurray, M. (2016). Obergefell v. Hodges and Nonmarriage Inequality. California Law Review, 104(5), 1207.Obergefell v. Hodges. (n.d.). Oyez. Retrieved March 31, 2020, from https://www.oyez.org/cases/2014/14-556Obergefell v. Hodges, 576 U.S. ___ (2015). (n.d.). Justia Law. Retrieved March 30, 2020, from https://supreme.justia.com/cases/federal/us/576/14-556/Supreme Court
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Loving v. Virginia
388 U.S. 1
Loving v. Virginia (No. 395)
Argued: April 10, 1967
Decided: June 12, 1967
206 Va. 924, 147 S.E.2d 78, reversed.
Syllabus
Opinion, Warren
Concurrence, Stewart
Syllabus
Virginia’s statutory scheme to prevent marriages between persons solely on the basis of racial
classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. Pp. 4-12.
[p2]
TOP
Opinion
WARREN, C.J., Opinion of the Court
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case presents a constitutional question never addressed by this Court: whether a statutory
scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis
of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. [n1] For reasons which seem to us to reflect the central meaning of those
constitutional commands, we conclude that these statutes cannot stand consistently with the
Fourteenth Amendment.
In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a
white man, were married in the District of Columbia pursuant to its laws. Shortly after their
marriage, the Lovings returned to Virginia and established their marital abode in Caroline County.
At the October Term, 1958, of the Circuit Court [p3] of Caroline County, a grand jury issued an
indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January
6, 1959, the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however,
the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings
leave the State and not return to Virginia together for 25 years. He stated in an opinion that:
Almighty God created the races white, black, yellow, malay and red, and he placed them on
separate continents. And, but for the interference with his arrangement, there would be no cause
for such marriage. The fact that he separated the races shows that he did not intend for the races
to mix.
After their convictions, the Lovings took up residence in the District of Columbia. On November 6,
1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence
on the ground that the statutes which they had violated were repugnant to the Fourteenth
Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a
class action in the United States District Court for the Eastern District of Virginia requesting that a
three-judge court be convened to declare the Virginia anti-miscegenation statutes unconstitutional
and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial
judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the
Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court
continued the case to allow the Lovings to present their constitutional claims to the highest state
court.
The Supreme Court of Appeals upheld the constitutionality of the anti-miscegenation statutes and,
after [p4] modifying the sentence, affirmed the convictions. [n2] The Lovings appealed this
decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986.
The two statutes under which appellants were convicted and sentenced are part of a
comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The
Lovings were convicted of violating § 258 of the Virginia Code:
Leaving State to evade law. — If any white person and colored person shall go out of this State, for
the purpose of being married, and with the intention of returning, and be married out of it, and
afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as
provided in § 20-59, and the marriage shall be governed by the same law as if it had been
solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of
their marriage.
Section 259, which defines the penalty for miscegenation, provides:
Punishment for marriage. — If any white person intermarry with a colored person, or any colored
person intermarry with a white person, he shall be guilty of a felony and shall be punished by
confinement in the penitentiary for not less than one nor more than five years.
Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all
marriages between “a white person and a colored person” without any judicial proceeding, [n3] and
§§ 20-54 and 1-14 which, [p5] respectively, define “white persons” and “colored persons and
Indians” for purposes of the statutory prohibitions. [n4] The Lovings have never disputed in the
course of this litigation that Mrs. Loving is a “colored person” or that Mr. Loving is a “white person”
within the meanings given those terms by the Virginia statutes. [p6]
Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial
classifications. [n5] Penalties for miscegenation arose as an incident to slavery, and have been
common in Virginia since the colonial period. [n6] The present statutory scheme dates from the
adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which
followed the end of the First World War. The central features of this Act, and current Virginia law,
are the absolute prohibition of a “white person” marrying other than another “white person,” [n7] a
prohibition against issuing marriage licenses until the issuing official is satisfied that [p7] the
applicants’ statements as to their race are correct, [n8] certificates of “racial composition” to be kept
by both local and state registrars, [n9] and the carrying forward of earlier prohibitions against racial
intermarriage. [n10]
I
In upholding the constitutionality of these provisions in the decision below, the Supreme Court of
Appeals of Virginia referred to its 1965 decision in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as
stating the reasons supporting the validity of these laws. In Naim, the state court concluded that
the State’s legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent
“the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride,”
obviously an endorsement of the doctrine of White Supremacy. Id. at 90, 87 S.E.2d at 756. The
court also reasoned that marriage has traditionally been subject to state regulation without federal
intervention, and, consequently, the regulation of marriage should be left to exclusive state control
by the Tenth Amendment.
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 U.S. 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
U.S. 390 (1923), and Skinner v. Oklahoma, 316 U.S. 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 [p8] 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 equally both the white and the Negro participants in an interracial marriage, 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 because of their reliance on racial classifications, the question of
constitutionality would thus become whether 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 U.S. 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,[p9]Inc. v. Bowers, 358
U.S. 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 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 U.S. 483, 489 (1954). See also Strauder[p10]v. West Virginia,
100 U.S. 303, 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 U.S. 184 (1964).
The State finds support for its “equal application” theory in the decision of the Court in Pace v.
Alabama, 106 U.S. 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
greater 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 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, 71 (1873); Strauder v. West Virginia, 100 U.S. 303, 307-308 (1880); Ex
parte Virginia, 100 U.S. 339, 334-335 (1880); Shelley v. Kraemer, 334 U.S. 1 (1948); Burton v.
Wilmington Parking Authority, 365 U.S. 715 (1961). [p11]
There can be no question but that Virginia’s miscegenation statutes rest solely 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]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). 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 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to
be necessary to the accomplishment of some permissible state objective, 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 legislative purpose . . . which makes the color of a person’s skin the test
of whether his conduct is a criminal offense.
McLaughlin v. Florida, supra, at 198 (STEWART, J., joined by DOUGLAS, J., concurring).
There is patently no legitimate overriding purpose independent of invidious racial 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. [n11] We have consistently denied [p12] 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 solely because of racial classifications violates the
central meaning of the Equal Protection Clause.
II
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 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 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.
It is so ordered.[p13]
1. Section 1 of the Fourteenth Amendment provides:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
2. 206 Va. 924, 147 S.E.2d 78 (1966).
3. Section 257 of the Virginia Code provides:
Marriages void without decree. — All marriages between a white person and a colored person shall
be absolutely void without any decree of divorce or other legal process.
Va.Code Ann. § 20-57 (1960 Repl. Vol.).
4. Section 20-54 of the Virginia Code provides:
Intermarriage prohibited; meaning of term “white persons.” — It shall hereafter be unlawful for any
white person in this State to marry any save a white person, or a person with no other admixture of
blood than white and American Indian. For the purpose of this chapter, the term “white person”
shall apply only to such person as has no trace whatever of any blood other than Caucasian; but
persons who have one-sixteenth or less of the blood of the American Indian and have no other
non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in
effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited
by this chapter.
Va.Code Ann. § 20-54 (1960 Repl. Vol.).
The exception for persons with less than one-sixteenth “of the blood of the American Indian” is
apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of
Vital Statistics, by “the desire of all to recognize as an integral and honored part of the white race
the descendants of John Rolfe and Pocathontas. . . .” Plecker, The New Family and Race
Improvement, 17 Va.Health Bull., Extra No. 12, at 25-26 (New Family Series No. 5, 1925), cited in
Wadlington, The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective, 52
Va.L.Rev. 1189, 1202, n. 93 (1966).
Section 1-14 of the Virginia Code provides:
Colored persons and Indians defined. — Every person in whom there is ascertainable any Negro
blood shall be deemed and taken to be a colored person, and every person not a colored person
having one fourth or more of American Indian blood shall be deemed an American Indian; except
that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian
blood and less than one sixteenth of Negro blood shall be deemed tribal Indians.
Va.Code Ann. § 1-14 (1960 Repl. Vol.).
5. After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md.Laws 1967, c. 6,
leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala.Const., Art. 4, § 102,
Ala.Code, Tit. 14, § 360 (1958); Arkansas, Ark.Stat.Ann. § 55-104 (1947); Delaware, Del.Code Ann., Tit. 13, § 101 (1953);
Florida, Fla.Const., Art. 16, § 24, Fla.Stat. § 741.11 (1965); Georgia, Ga.Code Ann. § 53-106 (1961); Kentucky,
Ky.Rev.Stat.Ann. § 402.020 (Supp. 1966); Louisiana, La.Rev.Stat. § 14:79 (1950); Mississippi, Miss.Const., Art. 14, § 263,
Miss.Code Ann. § 459 (1956); Missouri, Mo.Rev.Stat. § 451.020 (Supp. 1966); North Carolina, N.C.Const., Art. XIV, § 8,
N.C.Gen.Stat. § 14-181 (1953); Oklahoma, Okla.Stat., Tit. 43, § 12 (Supp. 1965); South Carolina, S.C.Const., Art. 3, § 33,
S.C.Code Ann. § 20-7 (1962); Tennessee, Tenn.Const., Art. 11, § 14, Tenn.Code Ann. § 36-402 (1955); Texas,
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