Civil and Human Rights

The power of ‘Loving’

On Thursday night, U.S. District Judge Arenda L. Wright Allen sent an early Valentine’s Day gift to the gay men and lesbians of the commonwealth – a blockbuster ruling in Bostic v. Rainey.


Wright Allen ruled that Virginia’s constitutional amendment and statutes prohibiting same-sex couples from marrying violate the fundamental rights to equal protection and liberty guaranteed to all persons by the 14th Amendment of the U.S. Constitution.


The judge stayed her ruling pending appeal, which means that, for the time being, gay men and lesbians in Virginia, including me, will continue to be denied our constitutional rights. Like the residents of too many other states in this country, we will have to wait for this issue to play out in higher courts and, most likely, in the U.S. Supreme Court.


And when the time finally comes for our nation’s highest court to grapple with this issue on the merits (having declined to do so last term), the court’s resolution will be informed not only by its strong equal protection precedents protecting the rights of gay men and lesbians, particularly last year’s ruling in United States v. Windsor, but also by its rulings specifically recognizing that marriage is a fundamental right of all human beings.


In its 1967 decision in Loving v. Virginia, the Supreme Court held that state laws prohibiting interracial marriage were unconstitutional. Because Loving was, at its core, grounded in racial discrimination, the case is typically remembered, quite appropriately, as one in which the court ruled that the laws at issue violated the Equal Protection Clause.


But perhaps less well known about Loving is the fact that the court articulated a second and independent basis for its ruling: that marriage is a fundamental right – “one of the ‘basic civil rights of man'” – and that laws prohibiting interracial marriage impermissibly deprived people of this fundamental right for no justifiable reason.


Wright Allen’s ruling this week was similarly based on the twin towers of Loving – violation of equal protection as well as denial of the fundamental right to marry.


At the time of the court’s ruling in the Loving case, Virginia was one of 16 states that still “prohibit[ed] and punish[ed] marriages on the basis of racial classifications.”


Some states had never enacted such abhorrent laws, while more than a dozen others had repealed them prior to the court’s ruling.


It is not lost on me as a resident of Virginia and a student of history that our state is once again on the wrong side of the U.S. Constitution and that it will again have to be dragged by the courts into doing what is right and just – although it is heartening that some state officials have recognized the invalidity of the discriminatory laws.


And so it seemed particularly fitting that Wright Allen began her ruling in Bostic by quoting a statement made by Mildred Loving on June 12, 2007, the 40th anniversary of the Supreme Court’s decision in the case to which she and her husband, Richard, gave their names.


Here’s an excerpt: “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?… 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…. That’s what Loving, and loving, are all about.”


I’ve always thought that Loving v. Virginia is quite possibly the most appropriately named case in all of Supreme Court history.


Thanks to Judge Arenda Wright Allen, we have seen once again just how powerful Loving can be. And on Valentine’s Day, no less, it was a much better gift than flowers.


Judith E. Schaeffer, who lives in Alexandria, is vice president of Constitutional Accountability Center. She and her spouse have resided in Virginia since 1979; they were legally married in Canada in 2004.

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