Gay Marriage

The Legacy of Loving v. Virginia Lives On in Gay Marriage Rulings

Fundamental rights must trump the government's attempt to control private relationships


Opponents of same-sex marriage object, often strenuously, to comparisons with interracial marriage. Homosexuality is a behavior rather than a trait, they contend, and men and women of different races are sexually compatible in a way that same-gender couples are not.

All analogies are inexact. But for practical purposes, whether the comparison holds up in every possible regard matters less than whether it holds up in legal terms. And from that perspective, the comparison is proving powerful indeed. So far six federal judges have ruled against state restrictions on gay marriage, and every one of them has invoked Loving v. Virginia — the 1967 case in which the Supreme Court struck down Virginia's ban on interracial marriage.

Defenders of bans on same-sex marriage have appealed to tradition — i.e., old habit. That's an awfully weak argument, given our history. Slavery was traditional. Denying women the vote was traditional. So was a lot of gun control.

Federal Judge Arenda Wright Allen certainly didn't buy the argument when she ruled against Virginia's ban.

Wright Allen noted that "other profound infringements upon our citizens' rights have been explained as a consequence of heritage, and those explanations have been found wanting." Quoting another Supreme Court case (Casey), she said interracial marriage "was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia." Elsewhere, she points out that "nearly identical concerns about the significance of tradition were presented to, and resolved by, the Supreme Court in its Loving decision."

Last week a federal judge struck down Texas' ban on gay marriage. Judge Orlando Garcia quotes the same passage from Casey as the one above. He goes on to say that Texas claims the debate is merely definitional: In the state's view, "plaintiffs are seeking recognition of a 'new right to same-sex marriage' as opposed to the existing 'right to marry.' This Court finds this argument fails, as the Supreme Court did not adopt this line of reasoning in the analogous Loving v. Virginia. Instead of declaring a new right to interracial marriage, the Court held that individuals could not be restricted from exercising their 'existing' right to marry on account of their chosen partner. . . . That is, an interracial marriage was considered to be a subset of 'marriage,' in the same way that same-sex marriage is included within the fundamental right to marry."

Moreover, "this fundamental right to marry also entails the ability to marry the partner of one's choosing. See generally Loving. . . ."

The question in Kentucky was slightly different: Whether that state was obliged to recognize the same-sex unions validated by other states. Nevertheless, it also referred to Loving as the basis for concluding that "marriage is a fundamental right." And that state "laws are subject to the guarantees of individual liberty contained within the United States Constitution." And that "the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties."

A similar ruling requiring Ohio to recognize out-of-state same-sex marriages also cited Loving more than a half-dozen times. And when he struck down Oklahoma's ban on gay marriage, federal judge Terence C. Kern noted that "in discussing [the] traditional state authority over marriage, the Supreme Court repeatedly used the disclaimer 'subject to constitutional guarantees.' . . . (citing Loving v. Virginia. . . .) A citation to Loving is a disclaimer of enormous proportion."

Apparently so.

Courts — including the Supreme Court — can be wrong. Sometimes egregiously so. But there is a reason so many courts have referred to Loving again and again: The arguments for laws banning gay marriage and the arguments for laws banning interracial marriage are nearly identical: Tradition. States' rights. Government's presumed interest in the ordering of private relationships for the sake of an ostensible public good.

Those arguments did not hold up in 1967, and they don't hold up now. Government's core purpose consists of protecting people from harm they don't consent to. The trouble confronting opponents of gay marriage, like opponents of interracial marriage before them, is that they can produce nobody whose rights have been violated by somebody else's marriage. The only things ostensibly harmed by gay marriage are inchoate entities such as "society" and "tradition" and "the institution of marriage." And those simply are not sufficient reasons to infringe on someone else's fundamental liberty.

This article originally appeared in the Richmond Times-Dispatch.

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  1. The purpose for not legally recognizing interracial marriage was to discourage the intermixing of the races. Everyone understood that a marriage was between a man and a woman, regardless of race. They did not legally recognize interracial marriage because they wanted the children to legally be bastards. It was for the children!

    Same sex couples, last I checked, can’t have children without the help of a third party.

    Comparison fails.

    1. As I understand it, when in vitro fertilization happens, the gene code is extracted from the sperm and then injected using a syringe into the egg. If my understanding is accurate, why is a lesbian couple in vitro each other impossible? I swear I heard of this over a decade ago, but I cannot find the web page now.

      Didn’t Ken Ham stress “Critical Thinking” as a way to prove Creationism is NOT IMPOSSIBLE, thus winning his debate with Bill Nye?

      It pains me to say that.

      1. Because the sperm’s genetic package is not in the same container as an egg’s genetic package.

        If you inject the payload of one egg into another, you will likely end up with two nuclei and an egg that dies.

        Now, if you can come up with a process that repackages and egg’s genetic material in a sperm-like payload, then that’s a horse of a different color!

      2. found the article from Jan 2002:…..y-o13.html

    2. It doesn’t matter what the specific racist rationales were. The point is the laws were motivated by racism and not any rational basis, just as laws against same-sex marriage are motivated by homophobia and not any rational basis. This means it is unconstitutional for the state to make a distinction.


      Procreation and parenting are irrelevant to the issue of marriage equality. Heterosexual couples do not need to marry to make babies, and the ability or even desire to make babies are not prerequisites for obtaining a marriage license.

      There are also countless Gay couples who are raising adopted children. If marriage provides a more stable home environment, why deny those adoptive couples the option to marry?

  2. Oh great – teh gaiz again.

    Let me know when the artisanal, deep-dish circumcision thread starts so I can be elsewhere. kthxbai

    1. Sadly, it being the gays, prevents Reason from having any kind of principled discussion about the precedent this is setting. They want their pony and really don’t give a fuck about the longer term consequences.

      1. They want their pony and really don’t give a fuck about the longer term consequences.

        Consequences like…

        1. Destroying the right to free association, free speech, etc…

          1. How does gay marriage destroy those things?

            1. Not gay marriage per se. But there is a larger push going on here. Bakeries, photographers, churches, and other services. The larger agenda is to compel private businesses and institutions to serve gays under force of law. I don’t care about gays getting married. I do care about bakers being forced by law to serve a certain class of customers. It’s all culture war bullshit.

              1. All we need is for people who truly believe in free association and not the culture war stupidity to start getting being the entire deregulation of marriage. It is that simple. For fucks sake!

                If a socon doesn’t get behind that or a gay marriage advocate doesn’t get behind that then they are admitting it is NOT about free association but instead Free SHIT!

                1. p.s. The incrementalist approach is a decent stop-gap measure but is not to be confused with being OK that the gubmint be involved in marriage.

              2. They might be able to force me to bake a cake for someone I don’t want to, but they can’t make me bake a good cake for them or.

              3. I don’t support anti-discrimination laws. Opposing those laws does not mean I must oppose gay marriage (for the record, I think the best solution would be ending all marriage licensing). One does not cause the other.

              4. Then you should work to repeal ALL of our modern civil rights laws. Then Christian business owners could fire employees who they learn are Muslim or Atheist. Landlords could refuse to rent to Blacks. Restaurant owners could turn away Asians. We could call it “American Exceptionalism!”

                1. I see nothing that violates anyone’s rights in this…I approve.

              5. The larger agenda

                Foil head alert!

                You know blacks and hispanics push for the same things. My sexual orientation has nothing to do with politics.

        2. Perpetuation of the judicial power grap that is the notion of “substantive” due *process*.

      2. But for some reason denial of constitutionally required equal protection and due process is not a problem for you?

  3. Moreover, “this fundamental right to marry also entails the ability to marry the partner of one’s choosing. See generally Loving. . . .”

    But that is reading the language out of context. Loving was about interracial marriage. If you read that sentence literally, Loving stands for the proposition that states must recognize polygamy, marriage within families (up to and including immediate blood relatives). There is no way the Court in Loving meant to strike down all laws regarding marriage.

    So if Loving didn’t mean to strike down all laws relating to marriage, what did it mean? The obvious answer is that it is limited to its facts and is about interracial marriage. Now maybe its principles were meant to or should apply to gay marriage as well but not polygamy or interfamily marriage. I don’t see why that would be the case or why gays are any different than the other two categories. And this article doesn’t even try to explain that. It just takes a sentence out of context and pretends it means what they want it to mean.

    1. While I have nothing against polyamorous couples there’s is a big difference between whose body odor you’re attracted to and how many partners you can tolerate at one time, and incest creates anti-gay mongoloids.

      1. I thought we already established that marriage isn’t about reproduction or one man and one woman.

        You’re an oppressive bigot for thinking that two brothers or sisters shouldn’t be allowed to marry. Not to mention the whole ‘anti-gay mongoloid’ thing…

        1. You’re most likely against incest. You’re just being a jackass. I’m attracted to scents put off by both the same and opposite sex. Completely different from country music-induced incest.

  4. This one patch at a time method of fixing marriage law flaws is discouraging. I suppose it’s too much to expect they just abandon trying to control it and let people figure it out for themselves?

    1. It would be nice, but there’s no law (constitutional or statutory) requiring libertarian policy at the state level.

  5. I think the analogy is weak.

    The “traditional” definition of marriage in the US was one man and one woman. To the extent there was a “right” to marry, it was definitionally for one man to marry one woman. The anti-miscegenation laws infringed that right.

    You don’t get to the equal protection argument without first defining marriage. What is happening now is that the courts are claiming the power to change the definition of marriage. They are doing it via bootstrapping, claiming that the “real” definition has evolved and their intuition of that change empowers them to enforce it.

    1. Exactly RC. The analogy is nonexistent. If it were a valid analogy, every law restricting marriage in any way would be invalid.

      What is frustrating is that Reason is so in love with the culture war aspects of this and so happy to see its cultural enemies lose, it can’t see that if courts can redefine marriage, they can redefine a lot of other things, none of which Reason is going to like.

    2. I found this article at American Thinker. The argument seems to be that the federal judges are interpreting US v Windsor too broadly — that all it does is require the federal government to recognize whatever the states define as marriage.

      Is this an accurate interpretation of Windsor?

      1. I think it is, but the “expanded” reading gives judges the pretext they have been looking for to declare gay people a de facto protected class.

    3. This problem is seated deep. I’ve noticed that people reading & writing documents technically seem to have lost the ability to distinguish between definitions & subtantive statements. As a case in point, up to about 1980 the Nat’l Feder’n of St. HS Ass’ns football rules committee was giving excellent product?clear, concise, complete. In the time since, they have terribly blurred the distinction between definitions & substantive provisions. That can only mean that the people they have on the job now don’t know the difference. You can look at Rule 2, “Definitions”, and fairly easily see bits that’ve been added over that time because they stand out as confused that way.

    4. Polygamy is more traditional than monogamy if you want to play that game.

      1. Incest and/or bestiality is, de facto about as traditional as it gets.

  6. Since you mentioned “Loving V. VA”, it has always amazed me how law makers in VA claimed the VA laws–in ref to this–were in line with the VA Constitution Article 1, Section 16 passed Dec 1792.

    I personally feel that we should separate Legal Union and Holy Union. A large number of religious people already claim marriage is a holy ceremony any ways. The way current laws are written, it is illegal for a clergy-person to person a Holy Ceremony with out the State’s permission. Ask Caesar for Union under Caesar and ask a clergyman for Union under the Creator. Coincidentally, if you make the change I propose, VA Constitution, Article 1, Section 15A–passed in 2003 mandating that marriage is only between a man and a woman–is almost moot. Well except for the Episcopalians who keep announcing, on their web cite, the progress they are making with a same sex marriage ceremony.

    1. [I]t is illegal for a clergy-person to person [perform?] a Holy Ceremony with out the State’s permission.

      Citation needed. And please be specific if it’s actually illegal, as in criminal penalties and stuff, or whether that religious ceremony will simply not be recognized by the state for state purposes. Big difference.

      I note that SoCons often make the argument that gay marriages are not illegal, per se, only that the state doesn’t recognize them. This is, of course, not true in Virginia where such things are actually illegal under current state law; such law having been ruled unconstitutional by the federal courts but that decision stayed pending appeal.

      1. “with the power vested in me…” seems pretty specific.

        1. Allow me: “with the power vested in me, I now pronounce you [legally] husband and wife”

          The fact that “power vested in me” is referenced does not mean it’s related to the religious aspect of the union. Further, depending upon the religion/denomination, the reference may be to power vested in them by, e.g., a bishop.

  7. “Federal Judge Arenda Wright Allen certainly didn’t buy the argument when she ruled against Virginia’s ban.”

    This is the same judge who confused the Declaration of Independence with the Constitution. So she’s not the best possible source on the meaning of the Constitution.…

  8. EXCLUSIVE: Black chef who accused Paula Deen of racism cooks her own goose: Woman fired by star is living hand to mouth while TV cook crows about $75m comeback

    Adding insult to injury, Paula is crowing about her new restaurant near Dollywood
    Charles added to the feeding frenzy when Paula was accused of being a racist and using the n-word
    Charles’ lawyer tells MailOnline she is not working as a chef in a restaurant or at a school
    Paula once called Dora her ‘soul sister’ but now Dora spends her days looking after her four grandchildren…..eback.html
    Ha ha! Good luck getting your job back! Ha!

    1. The food world is incredibly competitive and insular. The last thing any cook or chef wants to do is piss off some famous chef or restauranteur. You get hired by who you know. What an idiot.

    2. Gosh, get flagged as a troublemaker who brought down your old boss, and you have a hard time getting a new job?

      Huh. Who could have seen that coming?

  9. Gentlemen and Ladies,

    Libertarians favor people doing as they please unless they directly harm another, and I agree with that world view.

    Our society, and indeed every society on the earth, uses the power of government to favor some behaviors over others.

    These actions range from tax credits if you purchase a hybrid car, to tax deductions for mortgage interest, to criminal penalties for sex with people under a certain age.

    Legal marriage in our society does not give a couple the right to live together, the right to have children, or any rights at all. Legel marriage in our society provides access to subsidies favoring, or discouraging, certain behaviors.

    Legal marriage gives partners access to a variety of financial incentives intended to encourage it, under the justification that it generally is best for the raising of children.

    All the whining about homosexuals being deprived of their rights is nonsense unless they are going to oppose all government incentives based on behavior. All the gnashing of teeth is nothing more than a demand that homosexual marriage be subsidized in the same way heterosexual marriage has been.

    I am opposed to this, and if other libertarians are intellectually honest, they will be as well. If you are opposed to government providing subsidy to favored behaviors, then you should be trying to remove that favored treatment. There is no justification on expanding it based on some tortured interpretation of rights.

    1. There is something to be said about an incrementalist approach and harm reduction. What we need is the Socons and religious folk LOUDLY proclaiming that the government had zero business in the affairs of a religious institution. This would disarm their ideological opponents as they would now be forced to agree or self identify as wanting to impose theer culture on others. Either way the right/socons/religious folk now have the moral high ground.

      Until that happens you will continue to see the other side use whatever means to get their ends and their constant crowing about unequal treatment and persecution.

      1. What we need is the Socons and religious folk LOUDLY proclaiming that the government had zero business in the affairs of a religious institution.


        Funny, I’ve been saying that for some time and am invariably shouted-down for that.

  10. Looks like Reason only cares about the NAP when it suits their agenda. If the state was never involved in marriage, the Loving v. Virginia ruling wouldn’t have been required.

  11. “But for practical purposes, whether the comparison holds up in every possible regard matters less than whether it holds up in legal terms.”

    By “legal terms” we mean whatever logic can be tortured to fit the judge’s agenda.

    I have never seen a convincing argument from the pro-homosexual marriage that homosexual couples are functionally equivalent to heterosexual ones. The Loving case came about because Virginia saw interracial heterosexual couples as functionally equivalent to intra-racial heterosexual couples and wanted to prevent the legitimate mixed race children (which would undermine segregation). The “bans” on homosexual marriage come from that such a relationship is an absurdity, it cannot exist, therefore society has no interest in homosexual relationships. Invoking Loving is not logical as differences in sex are not the same as differences in race. Though with the transgender restroom, the Left and the courts are now doing their best to enforce legal androgyny on society.

    1. The “bans” on homosexual marriage come from that such a relationship is an absurdity, it cannot exist…

      LOL. Yet those relationships and marriages do exist. What you’re saying is that you don’t like them.

      How’s that reality-denial working out for you, Mick?

      1. They exist as farce, much like most of the Left’s agenda. And working out for everyone just as well as health care as a right.

    2. such a relationship is an absurdity

      Then explain why i’m attracted to scents put off by the same sex.

  12. This is one of the best things to happen for libertarianism. Now the movement can put aside this divisive debate and focus on common goals.

    Don’t know why Bart, et als, continue picking this scab since it only enrages the SoCons.

    1. The real question is this:

      IF we live in the world we live in where the government gives subsidy for certain actions, should those subsidies not apply equally to all?

      The libertarian answer should be yes, while noting that the government has no business subsidizing anything.

      It is tricky, because we don’t want to look like we’re giving a thumbs up to such government intrusion in the first place.

  13. How does some issue being comparable to Loving have any real bearing on the issue?
    There is no law criminalizing the marriage of people of the same sex. The issue is whether the marriage will receive the statutory benefits granted by government. I’d like to see government at all levels stop undermining our fundamental rights by giving the validity of those rights to some fucking panel of judges. ONE more liberal on the Supreme Court and there would be no 2nd amendment. I don’t want to marry some dude . . . hell having been married I’d run away like Oscar Pistorius if anyone suggested it . . . but this judicial mental masturbation just encourages their authority.
    How does restricting the benefits of marriage granted by government undermine our rights? It does so by failing to respect the 14th amendment’s direction to not allow discrimination of privilege to any citizen by any government entity. Government serves every citizen not just the ones in favor.

  14. John and sarcasmic, keep at it. I’m sure history will vindicate you.

  15. Inheritance law is not a private relationship. Much about marriage, including tax law has nothing to do with private relationships. Although the government has no business in a persons private relationship, taxes, next of kin rules, inheritance laws are all their providence whether we like it or not. I would prefer the government have no marriage tax law at all, but we are not there are we.

  16. I often hear people joke, “Of COURSE Gay people can marry … as long as they marry someone of the opposite sex! Ha ha ha ….”

    I guess similar remarks were made back before the days of Loving v. Virginia: “Of COURSE you have every right to get married … as long as you marry someone of the same race as yourself.”

    1. And race is functionally the equivalent of sex with regard to sexual relationships…how?

      1. As someone whose attracted to scents put off by both the same and opposite sexes they’re both just as meaningless to me. I mean very few black guys straighten their hair so they’re almost out of the equation but that doesn’t mean there aren’t blacks and males that I find attractive.

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