Civil and Human Rights

Learning From Virginia’s History of Marriage Discrimination – Or Not

On Monday, a three-judge panel of the United States Court of Appeals for the Fourth Circuit ruled 2-1 in Bostic v. Schaefer that Virginia’s statutory and state constitutional prohibitions on marriage by same-sex couples violate the Fourteenth Amendment.  This is the same momentous conclusion recently reached by the Tenth Circuit regarding similar laws in Utah and Oklahoma, as the multitude of lower court rulings striking down state marriage bans across the country make their way into the appellate courts.  Of course, the decision in Bostic, as important as it is, has no more legal weight than the decisions by the Tenth Circuit.  But coming as it does from the state that gave the country Loving v. Virginia – the Supreme Court’s 1967 decision that ended bans on interracial marriage nationwide – Bostic is powerfully symbolic, underscoring from the history of one state that the Fourteenth Amendment’s guarantees of liberty and equality protect all persons, regardless of race, gender, or sexual orientation.

Indeed, the majority in Bostic rigorously applied the constitutional teachings of Loving, most significantly that marriage is a fundamental right, “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”  And particularly in the language of the majority’s concluding paragraph, it seems clear that the judges were keenly aware of Virginia’s history of unconstitutional marriage discrimination:

“Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life.  Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.” (Emphasis added.)

Sadly, the lessons of Virginia’s history appear to have been lost on Judge Paul Niemeyer, who not only dissented in Bostic, but would have held that the fundamental right to marry is confined to marriage between a man and a woman, as this is the “traditional” view of marriage throughout history.  Without any apparent sense of irony, Judge Niemeyer opened his dissent by claiming that “[t]he Commonwealth of Virginia has always recognized that ‘marriage’ is based on ‘the mutual agreement of a man and a woman to marry each other,’ and that a marriage’s purposes include ‘establishing a family, the continuance of the race, the propagation of children, and the general good of society.’”  For this list of the purposes of marriage, Judge Niemeyer quoted a 1951 decision of the Supreme Court of Appeals of Virginia.

But in this walk down memory lane, Judge Niemeyer neglected to mention some very important aspects of marriage in Virginia in 1951, and indeed, throughout most of the Commonwealth’s history.  Most significantly, in Virginia, as in many other states, a white man could not lawfully marry a black woman, nor a black man marry a white woman — marriage was strictly limited by the race of the partners.  This history of marriage discrimination was painfully recounted by the Supreme Court in Loving, which explained that “[p]enalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period.”  (Emphasis added.)  The specific statutory scheme at issue in Loving had been in place since “the Racial Integrity Act of 1924,” which not only prohibited a white person from marrying anyone except another white person, but also made the violation of this prohibition a felony punishable by one to five years in prison.  So while Judge Niemeyer waxes eloquently about man-woman marriage, such marriages were permitted in Virginia only for the right man and the right woman.  Marriage was about race as much as anything else.

Moreover, while Judge Niemeyer’s tone deaf dissent repeats the 1951 claim of “continuance of the race” as a purpose of marriage, the laws prohibiting interracial marriage did not prohibit non-whites from marrying each other (as the Supreme Court further observed in Loving), only from marrying a white person.   In the Virginia prior to Loving, procreation was, by law, about continuing and preserving the “integrity” of the white race.

In 1959, when a trial judge in Virginia sentenced Mildred Jeter, a black woman, and Richard Loving, a white man, to one year in jail because they’d had the temerity to travel to the District of Columbia, get married, and then return to Virginia to live as a married couple, he agreed to suspend their sentence if they accepted banishment from the state for 25 years.  And he then went on to say:

“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.”

Such was the “traditional” view of marriage in Virginia, before Loving.

Virginia, in short, is pretty much the last state in the nation whose views of “traditional marriage” should inform the contours of the fundamental right to marry that the state’s laws currently deny to gay men and lesbians.  Fortunately, Virginia’s “traditional” view of marriage has been consigned to the dustbin of history.  And I’m confident that when all is said and done by the courts on the issue of marriage equality for gay men and lesbians, that’s where we’ll find Virginia’s current laws as well.  As the majority recognized in Bostic, the Fourteenth Amendment requires no less.

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