In June of 1958, police broke down the door to Richard and Mildred Loving in the hope of catching them in the act of sexual intercourse. Why? Because Richard Loving was a white man and Mildred Loving was a black woman, and Virginia’s laws, based on long-discredited theories of eugenics, prohibited sexual intercourse between members of different races.
The police didn’t manage to catch Richard and Mildred en flagrante. But they did catch something else, a marriage certificate hanging on the wall of the Lovings’ bedroom. That, too, was something illegal in Virginia. The Lovings were married in the District of Columbia, which allowed mixed-race couples to marry. But they had returned to their home in Virginia, whose state code made mixed-race couples returning to the state after being married criminals.
The Lovings were subsequently sentenced to a year in prison with the sentence suspended on the condition that they leave Virginia.
In 1963, the American Civil Liberties Union (ACLU) filed the first challenge to Virginia’s laws, arguing that they violated the Fourteenth Amendment’s privileges and equal protection clauses:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”
The wheels set in motion by the ACLU rolled on, culminating in a landmark case before the Supreme Court: Loving v. Virginia, in which by a unanimous decision the court on June 12, 1967, struck down Virginia’s miscegenation laws.
On the run
The Loving decision hits a personal note for me. Like the Lovings, my wife and I were married in Washington, D.C., (in 1997). Like the Lovings, also, my wife and I are not members of the same race. And, finally, like the Lovings after we were married in Washington, D.C., we traveled to Virginia. But, unlike the Lovings, we weren’t arrested and sentenced to jail for so doing.
"The president made a primary-race promise that, if he were elected, he would work fervently to 'repeal DOMA.'"
It’s hard to believe, but only 30 years separated my marriage from the decision that made it legal.
But it didn’t separate from the marriage of my wife’s parents, yet another mixed-race couple. They were married in 1965, the year after I was born and two years before Loving was decided. My father-in-law was at that time an officer in the United States Air Force, and his commanding officer actually had to consider which states, like Virginia, still had laws against interracial marriage, and which did not.
And to make sure to not post my father-in-law to any that did.
Yesterday was a day that’s come to be known as “Loving Day,” the anniversary of that June 12, 1967, Supreme Court decision. Yesterday was also the day that the Justice Department filed a motion to dismiss the case of Smelt Smelt & Hammer v. The United States and the state of California Hammer v. The United States and the state of California.
"DOMA was challenged on the basis that it, like Virginia’s laws against interracial marriage, violated the Fourteenth Amendment."
That case challenged the federal Defense of Marriage Act (DOMA). DOMA, signed into law in 1996 by then president Bill Clinton, was a hasty bit of legislation born of the then-panic that Hawaii was about to become the first state in the union to allow same-gender marriages.
DOMA had two provisions. First, it asserted the right of any state to not recognize a same-gender marriage performed in another state. And, second, it forbade the federal government from recognizing a same-gender marriage at all.
DOMA was challenged on the basis that it, like Virginia’s laws against interracial marriage, violated the Fourteenth Amendment. The Obama Department of Justice countered, saying that it did not do so because states have traditionally had the right to not recognize each other’s marriages, specifically in the cases where some states allow marriage between first cousins (incest) or marriage between very young persons and other states do not.
The justice department also argued that not allowing same-gender marriage could save the states and the federal government money, as benefits normally available to married persons would not have to be extended to a new class of same-gender married persons.
Finally, the DOJ argued, it could not be said that homosexuals were being denied the right of marriage for homosexuals were legally allowed to marry freely, so long as they didn’t marry a person of the same gender -- i.e. there was no prohibition against a lesbian marrying a gay guy. So no loss of rights.
All in all, the DOJ’s arguments sounded a whole lot like the arguments Virginia made a generation ago, in trying to defend its laws against not same-gender, but different-race marriage. In fact, one passage from the DOJ’s filings is eerily reminiscent:
“DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage. In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs' rights, even if same-sex marriage were accepted as a fundamental right under the Constitution.”
Which isn’t a very long way, at all, from:
“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.”
Which is what the trial judge who sentenced the Lovings to jail used as his justification.
The president made a primary-race promise that, if he were elected, he would work fervently to “repeal DOMA.” Ironically, had the president’s parents travelled to Virginia with their newborn son, they would have been subject to arrest as were the Lovings.
"Had the president’s parents travelled to Virginia with their newborn son, they would have been subject to arrest."
But it’s hard to put the president’s DOJ filing into the context of his campaign promise, because he made another promise as well and that was to defend and uphold the laws of the United States and, like it or not, the DOMA act is law and his justice department is duty-bound to uphold it.
But now the other shoe must drop. The symbolism of filing for dismissal of the case against DOMA, on Loving Day, is overwhelming. The president must now show that as well as he will uphold the law, he will also see it repealed.
Gregory Travis can be reached at firstname.lastname@example.org.