On June 12, America celebrates the 40th anniversary of Loving v. Virginia, in which the U.S. Supreme Court struck down race restrictions on marriage. As lawyers on two landmark cases for the freedom to marry in America, we feel a special connection to Loving. One of us, Bernard S. Cohen, litigated Loving, and the younger of us, Evan Wolfson, was co-counsel in Baehr v. Lewin, the groundbreaking Hawaii challenge on behalf of same-sex couples seeking to marry.
Both Loving and Baehr continue to reverberate in our nation's struggle against exclusion from marriage, and for equality and inclusion for all Americans. Here in California, the State Supreme Court is now considering a marriage case brought by same-sex couples while the State Assembly again passed a marriage equality bill last week.
Loving began when Mildred Jeter, part African-American and part Cherokee, and Richard Loving, a white man, left their home state, Virginia, in order to get married where their love was allowed. Upon return, the couple was arrested in their bedroom for the "crime" of violating Virginia's race restrictions on who could marry whom, convicted of marrying the "wrong" kind of person, and given a choice of a year in prison or 25 years exile from their home state. The Lovings chose exile and then sued to defend their marriage. The Virginia Supreme Court upheld the trial court's ruling that, "Almighty God created the races white, black, yellow, Malay, and red, and he placed them on separate continents.... The fact that he separated the races shows that he did not intend for the races to mix." On appeal, the U.S. Supreme Court struck down race restrictions on marriage, declaring, "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."
In 1991, three same-sex couples likewise challenged their exclusion from marriage. After a thorough trial in 1996, Judge Kevin Chang found that denying gay people the freedom to marry recognized in Loving as a "basic civil right" serves no legitimate government purpose. The state constitution was subsequently amended to prevent the courts from ordering marriage licenses. Nevertheless, the Baehr case launched a nationwide, indeed international, discussion that led to the 2003 marriage equality by the Massachusetts high court and the first same-sex couples marrying in that state. The Massachusetts court cited Loving and Baehr, as have courts and legislators in the other places that have ended marriage discrimination, including South Africa, Spain, and Canada.
When the U.S. Supreme Court got Loving right, the polls showed 70 percent still opposed to interracial marriage. Imagine the injury to our nation if the Court had flinched, or if the opposition had prevailed with arguments like "let the people vote" or attacks on "activist judges," and had cemented discrimination into our Constitution, as in Hawaii.
Last year, the NAACP LDF filed a brief in support of ending the different-sex restriction on marriage. The NAACP LDF invoked Loving's repudiation of the same-race restriction on marriage, stating, "In a step forward - a step that at the time was the subject of bitter controversy, but now seems obvious - the Supreme Court tore down this lasting and notorious vestige of discrimination[.] There is no reason... to treat marriage between persons of the same sex any differently."
Today we rightly celebrate Loving v. Virginia as a milestone in racial equality, an important vindication of marriage as a cherished civil right, and a testament to the importance of fighting for equality, rather than sitting by silently, indifferently, or complacently in the face of cruel exclusion.
When in 1948 the California Supreme Court became the first in the country to strike down race discrimination in marriage -- before Loving -- it declared, "the essence of the right to marry is freedom to join in marriage with the person of one's choice." Hopefully, legislators and judges will find their courage, and our nation won't need too many lawyers working too much longer on behalf of too many couples and their kids before we end ongoing marriage discrimination -- the best way to celebrate the anniversary of what Loving is really all about.