Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Here's a website all about Loving day, commemorating the anniversary of the ruling in Loving v Virginia, which overturned all state laws against interracial marriage. The day is actually June 12th, but there are events going on all over the country over the next week. Below the fold I will repeat what Mildred Loving, one half of the plaintiff couple in that case, wrote about the connection between her case and same-sex marriage:
Loving for AllBy Mildred Loving*
Prepared for Delivery on June 12, 2007,
The 40th Anniversary of the Loving vs. Virginia AnnouncementWhen my late husband, Richard, and I got married in Washington, DC in 1958, it wasn't to make a political statement or start a fight. We were in love, and we wanted to be married.
We didn't get married in Washington because we wanted to marry there. We did it there because the government wouldn't allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.
When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is?
Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the "crime" of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: "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 marriages. The fact that he separated the races shows that he did not intend for the races to mix." He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.
We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.
Though it turned out we had to fight, happily Richard and I didn't have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, "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," a "basic civil right."
My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry.
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. Especially if it denies people's civil rights.
I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.
Amen, sister. Amen.
Politics
Comments
Statements like Loving's just make me want to raise my fist in the air and yell for what's right. It's a good feeling.
I guess I'll be doing that, then.
Posted by: Ranson | June 9, 2009 9:21 AM
This is a great day to recognize given the current struggle for marriage equality. I'm in an interracial marriage. The interracial aspect of it is such a non-deal that I've only paused to even consider it two or three times during the past seven years. I guess I really owe a huge debt to Mildred Loving and her husband. Hopefully, someday some gay man or lesbian will be able to live in a country where their marriage is a non-deal.
Posted by: richardrpeters | June 9, 2009 9:36 AM
I don't know. As Michael Steele recently pointed out, all those interracial marriages probably cost companies money. I'm still on the fence on this one.
Posted by: Skip | June 9, 2009 10:21 AM
Skip: If you are talking about insurance, straight marriages cost companies money, too.
Posted by: Ace of Sevens | June 9, 2009 11:02 AM
Ace, I do hope you realize I was being sarcastic. Steele recently actually tried to make the case against gay marriage based on insurance cost to employers, a position any reasonable person would find absurd.
Posted by: Skip | June 9, 2009 11:21 AM
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 marriages. The fact that he separated the races shows that he did not intend for the races to mix
Hey wait a second, whites being here in the Americas interfered with God's plan? [whistle] All Right, out of the pool. You folks get back to Europe where you belong!
Posted by: dogmeatIB | June 9, 2009 11:50 AM
Yes, dogmeat, the obvious implication of that judge's decision is that (a) the colonization of the western hemisphere by Europeans is Against The Will of Gah-ad,
and (b) the importation of Africans to the western hemisphere is also Against The Will of Gah-ad.
Posted by: Barry | June 9, 2009 12:02 PM
Mildred Delores Jeter & Richard Perry Loving
_______2 May, 2008_________29 June, 1975____
...............Lovers, Pioneers, Heroes................
In loving memory.
Posted by: DingoJack | June 9, 2009 12:20 PM
Whenever I hear anyone call himself or herself an "originalist," I always want to ask: "What about Loving?" If there's one thing any honest originalist -- or anyone else, for that matter -- has to acknowledge, it is that virtually nobody thought at the time that the 14th amendment affected the then near-universal anti-miscegenation laws. Does Clarence Thomas, a resident of Virginia, really want to see himself and his wife thrown into the hoosegow?
Posted by: CJColucci | June 9, 2009 1:21 PM
CJ - Liberal originalists can easily make the case for Loving being the proper ruling. I've found that those that oppose Loving back then or support it now but refuse to extend their argument to gays have one thing in common. It's not jurisprudence, it's that they adhere to conservative political objectives even at the cost of consistency in their jurisprudence.
I'm still looking for a constitutionally consistent argument against gays equally exercising their rights and have not found one.
Posted by: Michael Heath | June 9, 2009 1:31 PM
Thank you Mrs Loving for that very clear statement of why equal rights should apply to everyone.
That was wonderfully written. Thank you.
Posted by: GregB | June 9, 2009 2:01 PM
Michael: The only consistent argument is the one made bythe NY Court of Appeals, which runs thus:
1. Marriage is a collection of rights and responsibilities granted by the state to certain couples for the purpose of achieving important state objectives, such as encouraging the raising of children and promoting a stable social system;
2. The state's definition must meet only a rational relationship test absent some further complication;
3. The 15th Amendment provides such a complication for inter-racial couples, because anti-miscegenation laws are clearly, "Badges and incidents of slavery";
4. Therefore, Loving may be distinguished from SSM cases by the inclusion of race as a protected class in the Constitution where sexual orientation is not.
Note that there is nothing in this argument to preclude legislatures from changing the definition of marriage to include same-sex unions; it just isn't Constitutionally mandated.
Posted by: kehrsam | June 9, 2009 4:46 PM
Roy Zimmerman's "Summer of Loving" is just great:
http://www.youtube.com/watch?v=6n5nYDAV5-A
Posted by: Imback | June 9, 2009 5:11 PM
kehrsam provided a New York state argument I assume he believes meets my test that it's "constitutionally [Federal] consistent".
I respectfully disagree given this aspect of the New York argument:
It's my understanding that our right to marry is a fundamental right we possess independent of any government power, i.e., we reserved that right. States merely regulate and administer marriage licenses, neither they or the federal government have the delegated power to "grant" that right to us, therefore its powers do not provide prohibition powers when it comes to sexual identification. In fact I believe the federal constitution obligates the federal judiciary to strike down this power if a relevant case was presented in federal court.
This is basically my amateurish attempt to make a Randy Barnett style argument regarding powers delegated to government to regulate our rights, but those powers never explicitly or implicitly prohibited the free exercise of those rights unless they impose on the greater rights of others.
Posted by: Michael Heath | June 9, 2009 5:31 PM
Kersham,
I ask this out of legitimate confusion, and not rhetorical indignation, because the argument you lay out above is new to me:
Point 3 of that argument is that: "The 15th Amendment provides such a complication for inter-racial couples, because anti-miscegenation laws are clearly, "Badges and incidents of slavery."
I presume you refer to the Civil Rights Cases, when, in 1883 the Supreme Court wrote that "...the power vested in congress to enforce [the 13th Amendment] by appropriate legislation, clothes congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United Stated..." (I make this presumption because the 15th amendment secures voting rights, and an internet search suggests that this decision was the origin of the quoted phrase "badges and incidents of slavery.")
Was there an act of congress in effect at the time of the incident at issue in Loving which required Virginia to permit interracial marriages? If there was, I certainly grant that it was a valid exercise of the enforcement clause of the 13th amendment, binding on Virginia in the case at issue, and decisive of that case. I would also grant that this would form a valid basis for distinguishing Loving from the issue of homosexual marriage.
If there was not such an act then in effect, it seems to me that this argument for distinguishing lacks merit on the grounds that the enforcement clause merely empowers the Congress to take certain actions and would not have been grounds for the Loving court to rule as it did, and hence its inapplicability to homosexuality cannot be the distinguishing factor in the case of homosexual marriage.
Do you know if such an act was in effect?
Posted by: Douglas McClean | June 9, 2009 7:37 PM
Douglas: You are correct, I meant 13th and wrote 15th. Brain fart.
The Loving Court, of course cited nothing but the 14th Amendment for its authority, joining Griswald and Miranda as 60s-era cases which reach a correct result but are badly reasoned. Congress, of course, did not pass any enabling legislation to regulate marriage.
Michael: With regard to "fundamental rights," I am not sure what that term means. I am reminded of my Torts Prof, Leon Day, as he defined "Gross Negligence:" "It is ordinary negligence with an insult attached." That's pretty much how I feel about fundamental rights, since they are not defined within the Constitution.
If there exist fundamental rights outside of the Constitution, how are we to determine what they are? I have my own handy-dandy penumbra detector, but it doesn't appear to be calibrated the same as some other people's. Marriage has always been a state, rather than Federal concern. Loving can be bootstrapped in through either the 13th or 14th Amendments. SSM realy can't.
Let me reiterate that I am a supporter of SSM. All I am trying to do here is replicate the reasoning of the NY Court of Appeals, taken together with the other state courts which have ruled against SSM. The best solution, in my opinion, is to continue to build on the legislative victories we have been seeing. As my reasoning above indicates, legislatures are entirely free to recognize SSMs; I don't believe they have an obligation to do so. I hope this makes sense. Cheers!
Kurt
Posted by: kehrsam | June 9, 2009 8:13 PM
Kurt,
Gotcha. I think we agree completely (that Loving could have been "bootstrapped" through the enforcement clause of the 13th amendment, but wasn't, whereas same sex marriage couldn't be).
Since it was decided on the basis of the 14th amendment, I am less clear on how you think same sex marriage can be distinguished. It seems to me either that the 14th amendment could form grounds for a decision that the constitution protects a right to same sex marriage, or that Loving was wrongly decided (or you would have to reanimate the corpse of an argument that there is a legitimate state interest in preventing same sex marriage which would not be a legitimate state interest in preventing interracial marriage, I ignore this possibility for the sake of argument because I have never seen any such argument with legs despite many many attempts). I'm prepared to except either outcome, and it certainly was a great thing for justice and the american way, I only mean that one side of the disjunct is for it to have been wrongly decided legally.
I certainly agree that the state legislatures are the best place to pursue the right to same sex marriage.
I appreciate what you're trying to say, totally, I just wanted to understand better.
Great line about your penumbra detector, by the way; I get what Justice Douglas was trying to say, and I might actually agree with him, it was a ridiculous choice of words that makes the whole idea sound nuts. Next time you take it in to get it calibrated, you might want to make sure they try it on some emanations, too, otherwise you might get false negative readings.
You ask, "If there exist fundamental rights outside of the Constitution, how are we to determine what they are?" It's even more problematic than that, because I think the 9th amendment makes it clear that there are such rights, which leaves the problem of determining what they are but eliminates the (otherwise attractive) possibility of drawing a bright line by saying that there aren't any.
Posted by: Douglas McClean | June 9, 2009 8:35 PM
I think the underlying legal authority stating it is a right of individuals comes from the Universal Declaration of Human Rights.
Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
The UDHR recognizes the right of Muslims to have a marriage of one man and 4 women.
Posted by: daedalus2u | June 9, 2009 8:42 PM
On rereading my comment above, I realized that saying Kurt had written a "great line about [his] penumbra detector" could be taken as sarcastic. I was 100% serious, that is a hilarious line, and it made me spit some juice out my nose.
Posted by: Douglas McClean | June 9, 2009 8:57 PM
Um... how's that? I seem to recall numerous Supreme Court cases ruling that marriage is a fundamental right and therefore had to meet strict scrutiny, not rational basis scrutiny.
I'm not sure how that's "clear". Is it called a "badge and incident of slavery" because the sentiments that gave rise to anti-miscegenation laws had their roots in slavery, even if the laws themselves didn't necessarily? After all, free states had such laws. States that only entered the union after the abolition of slavery passed such laws. Are those laws then "badges and incidents of slavery"?
Posted by: Skemono | June 9, 2009 9:04 PM
Yes, dogmeat, the obvious implication of that judge's decision...
Ummm yeah Barry, which explains the nature of my joke. Old Bill Cosby line (late 60s, early 70s), God catches Adam and Eve, does the "Out of the pool!" line.
----------------------
Kehrsam & Michael,
Couldn't you argue that marriage is an obvious 9th amendment penumbral right? It's pretty obvious that it is a universal right recognized by virtually every culture (with variations). That being the case, then the argument that anti-SSM laws enacted by the states, would be a violation of the 14th amendment because it denies fundamental rights (9th amendment) to some, but not others (14th amendment). It seems like a rather logical argument that, with the exception of ideological arguments, doesn't really have a sound legal counter argument.
Posted by: dogmeatIB | June 9, 2009 9:56 PM
dogmeatib - my argument about our marriage rights assumes the reader recognizes the existence of the 9th Amendment and its incorporation against states via the 14th Amendment*. I do not think the obligation is on me to argue marriage is a fundamental right though I believe it is; I instead seek out the delegation of powers that explicitly prohibit the exercise of that right. I can not find such powers.
*I would argue our 9th amendment rights against states existed when the Bill of Rights was ratified and prior to that we were protected from state powers by the privileges and immunity clause. I also recognize that precedents during the antebellum era after ratification of the Bill of Rights do not support this viewpoint; I think those precedents were wrong.
Posted by: Michael Heath | June 9, 2009 10:24 PM
I saw Nanci Griffith this weekend at the LA Acoustic Music Festival, where she performed a few numbers from her album The Loving Kind which was released today. The title tune is about Richard and Mildred, and Nanci was explicit in her support of SSM as she introduced it.
Posted by: Pieter B | June 10, 2009 3:04 AM
Sorry, but all this 'badges and incidents' stuff keeps making me think of:
"Badges? Badges?? We don' need no stinkin' badges." :)
Posted by: DIngoJack | June 10, 2009 4:39 AM
This reminds me of an idiotic argument I read recently - I forget where - in which someone tries to explain that gay marriage and interracial marriage should not be compared.
Their argument was as follows: Banning interracial marriages goes against God, because he wants races to marry. But God says homosexuality is wrong, so it's ok to ban gay marriage.
I didn't bother replying. Such ignorance of culture and history cannot be reasoned with.
Posted by: Suricou Raven | June 10, 2009 5:45 AM
Michael,
I think we're basically arguing the same thing. I use the combination of the 9th and the 14th to counter those who base their arguments on pre-14th amendment jurisprudence, which I also find to be rather disappointing precedents to set.
Posted by: dogmeatIB | June 10, 2009 2:55 PM
Summer of Loving, by Roy Zimmerman
Posted by: maurile | June 13, 2009 8:52 PM