Source: Wikimedia Commons

The last time the Supreme Court took up a case on marriage equality was 46 years ago when about one-third of all states in the country still had laws that banned people of different races from marrying each other. This week all eyes are on the High Court as it prepares to hear oral arguments on two cases related to same-sex marriage. At issue is whether gay marriage bans violate the rights those couples have to equal treatment under the law, as guaranteed by the Equal Protection Clause of the United States Constitution. The Court’s rulings on both cases – expected by June – will likely be considered landmark decisions, ones that could potentially result in a dramatic widening of marriage rights for same-sex couples throughout the country … or a preservation of the status quo. The issue, though, harkens back to another, often forgotten, landmark civil rights decision from 1967 that similarly addressed marriage equality and the concept of equal protection of the law,  long before the notion of legalized same-sex marriage was considered even a remote possibility. Appropriately titled Loving v. Virginia, the case before the Court concerned the fate of its two plaintiffs: a black woman and a white man who had married each other in Washington D.C., but lived in Virginia, one of almost 20 mostly southern states in the late 1950s that still enforced anti-miscegenation laws prohibiting whites from marrying people of color. (Virginia, it turns out, hasn’t always been for all lovers.) In a unanimous decision, the Court ruled that such bans were in violation of the Constitution’s Equal Protection Clause, ending the last piece of explicitly legalized segregation in America.

The plaintiffs

In 1958 Mildred Jeter, a black woman, and Richard Loving, a white man, were married in Washington D.C. Upon retuning shortly thereafter to Virginia, police raided their home in the middle of the night, arresting the couple on felony charges for breaking the state’s anti-miscegenation law, known as the Racial Integrity Act, which made it a criminal act for any white person to marry any person of color. In January 1959, the two –- a bricklayer and a homemaker — pled guilty in state court. A trial judge sentenced them both to one year in prison, suspending the sentence on condition that they leave the state and not return for 25 years. In considering his verdict, the judge wrote:

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.

The Lovings moved to Washington D.C., where their union was legally recognized. They had no intention of becoming activists, but longed to return to Virginia. In 1964, as Congress debated passage of the Civil Rights Act, Mildred Loving wrote to Attorney General Robert Kennedy, asking if the new law could help them. They were referred to the American Civil Liberties Union, who took up the case, filing suit in federal court against the State of Virginia. Three years later, after several appeals, the case reached the Supreme Court.

Anti-miscegenation laws in the U.S.

Source: Wikimedia Commons
Source: Wikimedia Commons

Almost every state in the country has had some form of anti-miscegenation law in its history. By the end of World War II, about 40 states still had active anti-miscegenation laws on the books, including California. In 1948, the California Supreme Court ruled In Perez v. Sharp that the state’s anti-miscegenation statute violated the Fourteenth Amendment of the U.S. Constitution. It became the first state since Ohio in 1887 to repeal its anti-miscegenation law. Throughout the 1950s, numerous other states followed California’s lead, and by the start of the Loving’s Supreme Court case, the remaining 16 holdouts were almost all in the South.

The Court’s Ruling

The Court unanimously overturned Virginia’s anti-miscegenation law, rejecting the state’s defense that the statute applied equally to both blacks and whites. It held that drawing distinctions based on race were generally “odious to a free people,” and should therefore be subject to “the most rigid scrutiny” under the Equal Protection Clause. The Virginia law, the Court stated, had no legitimate purpose except blatant racial discrimination as “measures designed to maintain white supremacy.” Delivering the opinion of the Court, Chief Justice Earl Warren wrote:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. … 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 discrimination. 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.

The decision effectively overturned all state laws that prohibited any kind of interracial marriage. In several states, though, some of the statutes remained on the books, even though they were no longer legally enforceable. Alabama in 2000 was the last state to officially remove an anti-miscegenation provision from its state constitution. The ballot measure passed by a 60 percent margin. But nearly 526,000 people voted to keep the provision in place. In 2007, on the 40th anniversary of her Supreme Court case, Mildred Loving – who died the following year at age 68 – mentioned same-sex marriage in reference to the ongoing struggle for imarriage equality:

I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry… 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.


Matthew Green

Matthew Green runs KQED’s News Education Project, a new online resource for educators and the general public to help explain the news. The project lives at

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