Virginia Legislature to Repeal the Racial Integrity Act of 1924

Loving v. Virginia did not "strike down" Virginia's ban on interracial marriage

|The Volokh Conspiracy |

The Racial Integrity Act

In Loving v. Virginia (1967), the Supreme Court considered the constitutionality of criminal convictions of Richard and Mildred Loving for violating the Racial Integrity Act of 1924. The penultimate sentence of the opinion stated, "These convictions must be reversed." This landmark decision did not purport to "strike down" Virginia's ban on interracial marriage. Nor could it. Courts lack a writ of erasure.

To this day, the Racial Integrity Act remains on the books in Virginia. Of course, it would be unthinkable for any governmental official to enforce the law. He would immediately be sued, and the courts could hold him in contempt for disregarding clearly established Supreme Court precedent.

Yet the statute remains–hopefully not for long.

Virginia Governor Ralph Northam commissioned a panel to recommend repealing racially discriminatory provisions in the Commonwealth's laws. The press release states:

The Commission's interim report identified dozens of instances of overtly discriminatory language still on our books, including laws banning school integration, prohibiting black and white Virginians from living in the same neighborhoods, and prohibiting interracial marriage. While many of these Acts have been overturned by court decisions or subsequent legislation, they remain enshrined in law.

To be precise, the Acts were not "overturned." They were merely declared unconstitutional, and state officials were barred from enforcing those laws. But to be sure, these statutes do remain enshrined in law. And they should be repealed.

The thorough report lists the Racial Integrity Act of 1924 for repeal. The report also identifies a flurry of massive resistance legislation enacted after Brown v. Board of Education (1955). Many of these laws authorized the establishment of private, segregated schools, that would receive public funding. One of the laws actually divested localities of authorities over their schools if they favored integration. Here are the laws passed in 1956:

Later, the Governor was given authority to seize control of the schools, which could then subsequently be closed.

The report recommends repealing certain laws regarding "feeble-minded" individuals. But it does not (as far as I can tell) recommend the repeal of the Sterilization Act of 1924. The Supreme Court upheld the constitutionality of this provision in Buck v. Bell (1927).

The Sterilization Act of 1924 should be repealed.

Virginia should also repeal its prohibition on sodomy, VA. CODE ANN. § 18.2-361(A) (West 2014). This statute cannot withstanding constitutional scrutiny after Lawrence v. Texas (2003), and the Fourth Circuit's decision in MacDonald v. Moose (2013). It should be scrubbed from the statute books.

Update: A commenter below writes that Virginia in fact repealed the sodomy provision in 2014:

Virginia repealed its prohibition on sodomy five years ago. See, e.g., Toghill v. Commonwealth, 768 S.E.2d 674, 682 n.1 (Va. 2015) ("The General Assembly amended Code § 182-361(A) to remove the general provisions forbidding sodomy."). Today, § 18.2-361 covers bestiality and incestuous sodomy.

 

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  1. Perhaps these Massive Resistance bills can be cured of their defects by having the racist language modified. For example, instead of state grants to attend segregated schools, why not grants to attend integrated schools?

    1. I also notice that they want to repeal a statute to exempt private schools from local zoning and building codes so long as the state fire marshal said the school building is OK. I presume that bill was to protect segregated schools against integrationist local governments, but that’s in the past – why repeal it today? Why give local governments the tools to harass private schools? Or has this statute been (pardon the phrase) “struck down”?

      And there’s another statute they want to repeal, by which teachers can repay state scholarships by teaching at private schools. Has this statute been “struck down,” or if not, what’s the rationale for diverting trained teachers away from private schools?

      1. Let me revise that first paragraph of mine – they want to repeal a statute protecting private schools from local-govt regulation so long as the building meets state fire codes. What’s wrong with that?

        1. Nothing wrong with it, unless you favor local control over local matters, which I always thought was the principle underlying federalism. Is it really terrible if local government decides state codes are too loose?

          I guess everyone wants their preferred amount of centralization. That’s why I don’t take federalism seriously.

          1. OK, but what about the merits of the specific issue? After all, the commission already established the bad, racist motives of this law, so that’s really not in dispute.

            But maybe they accidentally did the right thing for the wrong reason.

            1. And if you’re using “federalism,” not to refer to federal/state relations, but to refer to keeping decision-making on the closest level possible than the people, then in that case private associations (such as private schools) trump local governments in the “closer to the people” category.

              1. closest level possible *to* the people.

              2. Of the Founders, the “federalists” were the ones who wanted a stronger central government, not a weaker one.

                1. Who are you quarreling with, barnard11 or me?

                  1. Or perhaps you’re quarreling with the dictionary –

                    https://www.merriam-webster.com/dictionary/federalism

                    1. I notice you didn’t manage to produce anything relevant to what I actually said. q’elle surprise.

                    2. What you said was a red herring drawn across the trail, ignoring the issue at hand (which statutes to repeal) and also ignoring the difference between a capital “F” and a lowercase “f.”

                      I showed your error from the dictionary. In a dispute between a dictionary and a dick, I side with the dictionary.

                    3. I think it’s just that you make up for having a small dick by being a big one.

                    4. Not even clever, anyway, your mother disagrees.

                    5. How long have you been a necrophiliac?

      2. They attack any attempts to get off the Plantation.

  2. I too agree with the repeal of this law because all persons are equal insofar as their humanity.

  3. “and the courts could hold him in contempt for disregarding clearly established Supreme Court precedent.”

    You misspelled “Grant him qualified immunity because no court has previously ruled you can’t arrest people for violating a law held unconstitutional on a Tuesday when it’s a half-moon.”

    1. Heh. Somebody’s been reading John’s weekly Friday-roundup too much. 🙂

  4. Mr. Blackman,

    Please direct me to the section of the Code of Virginia that would confirm your claim that “To this day, the Racial Integrity Act remains on the books in Virginia.”

    I cannot find it, even after a search on the official Code of Virginia web page, here: https://law.lis.virginia.gov

    Also, the section of code you reference as a “prohibition on sodomy” appears to be restricted to incestual relationships. I don’t recall that Lawrence v. Texas validated those.

    1. That’s right. Virginia repealed its prohibition on sodomy five years ago. See, e.g., Toghill v. Commonwealth, 768 S.E.2d 674, 682 n.1 (Va. 2015) (“The General Assembly amended Code § 182-361(A) to remove the general provisions forbidding sodomy.”). Today, § 18.2-361 covers bestiality and incestuous sodomy.

      1. Why can’t two gay brothers have gay sex? Stay out of the gay brothers bedrooms, fascists!

        Hashtag LoveWins

        1. I think it would be “gay brothers’ bedrooms…”, right? (ie, With the apostrophe. If we went to be homophobic posters, then we should be grammatically-accurate homophobic posters, yes?)

        2. “Why can’t two gay brothers have gay sex?”

          … with their consenting adult goats and sheep…

  5. Of course, laws don’t magically disappear from statute books the moment a court declares them unconstitutional. Many will recall Massachusetts, in 2005, repealing a statute on the books since 1675 prohibiting Indians from entering Boston.

    1. Why would they want to repeal that??? It would give them a good excuse to throw unruly Indians out of the city! And if it was worded vaguely enough, one could throw out the ones from India too if they got too uppity!

    2. Well, that statute makes Pedro Martinez’s heroics in the 1999 ALDS less impressive.

  6. Can someone tell me if this issue, which Blackman has posted about before, is anything other than semantic nitpicking or, as a friend puts it, picking fly specks out of pepper?

    1. This blog discusses nuts and bolts issues of constitutionality from time to time. If the constitution, or the SC interpretation of it changes, the laws could conceivably be un-blocked and thus active again.

      I wonder if an amendment that repealed a previous amendment were itself repealed, would it un-repeal the earlier one? I would think not, assuming the wording was that the previous amendment “is hereby repealed.” It’s a one time event, and repealing the earlier amendment is done at that point, regardless if the later one is itself repealed.

      1. Well, if we ever have true freedom of association restored again, those laws coming back into force would be a good thing potentially.

        The thing is I think very, very few people would all of a sudden start having whites only businesses/schools etc… But the truth is it SHOULD be allowed if somebody wants to do it. And blacks should be able to exclude whites from their things too. And a Chinese guy should be able to forbid Japanese people from his restaurant if he wants, even if he allows Koreans and whites and blacks in there.

        The fact is this stuff wouldn’t happen much… But it should be allowed. To not allow it is an abridgement of peoples freedom. The one that WOULD be enacted more if we had freedom of association restored would be a lot more male/female only spaces… Which likewise is not a bad thing. Mens and womens clubs should be able to ONLY be the sex they want.

        1. “The thing is I think very, very few people would all of a sudden start having whites only businesses/schools etc… But the truth is it SHOULD be allowed if somebody wants to do it.”

          It IS allowed if somebody wants to do it. Set up your private club and admit whom you like to it. Done. Public accommodation law applies to public accommodations, only.

          1. There’s no principled distinction between public accommodations and private ones. You’re all fascists

            1. … says the fascist.

          2. Bullshit! There have been lawsuits over this stuff. Various races have sued over not being allowed in clubs, women have sued to join mens clubs, etc. You can somewhat de facto get away with it… But if anybody ever raises a stink you’re fucked.

            You cannot have a black only club, and especially not a black only “public” business. Yet you should be able to.

            I don’t think this stuff would happen much anymore, but it’s the principle of the thing.

            1. I’m sorry the facts are the way you want them to be, but you can’t find it within yourself to stop complaining about it anyway.

    2. No, the distinction is not semantic. If Roe v. Wade (or Planned Parenthood v. Casey, to be pedantic) is reversed by the Supreme Court, I think you’ll see that it’s a very real issue. All those “overturned” / “struck down” abortion laws will immediately become legally effective.

      1. Hope of which is exactly why they were kept on the books.

        1. Well, no. It’s like you didn’t pay any attention to the post before commenting: they were kept on the books because virtually all statutes are kept on the books unless there is a perceived substantive need to repeal them.

          1. And also because a Constitutional challenge often leaves some part of the statute enforceable, and they want to keep whatever part of it that they can.

  7. Hopefully Ralph Northam won’t veto the bill. We still don’t know which guy in the picture he is.

    1. Has it been established that Northam was even in the picture?
      I got the impression the editors of the yearbook stuck the photo in there as a prank because Northam was from Virginia.

  8. Like you say, it would make no practical difference, but symbolically would be good for states to have a constitutional provision similar to s. 10 of the UK Human Rights Act, which allows for legislation to be repealed with an expedited procedure (in this case, by order from a minister, but that might be a bit excessive) if it has been found contrary to human rights.

    http://www.legislation.gov.uk/ukpga/1998/42/section/10

    1. Great idea… Until the president in 2024 decides that the 2nd amendment is contrary to human rights! Or any number of other stupid misuses commies could do.

      1. In today’s lesson, we learn that the President in 2024, like the President of any other year, passes no legislation.

        1. Yeah, we’re not talking about the USA as it is today, but rather a proposed BAD IDEA that they apparently have in the UK. That kind of thing, or any variation of, is a bad idea.

          1. No matter how bad (or good) and idea is, the President still isn’t passing the legislation.

      2. If you had clicked on the link I provided, you would have discovered that when I said “has been found contrary to human rights”, I meant “found by a court to be contrary to human rights”.

  9. Yet the picture of Northam in blackface will remain. The only reason he gets a pass is the magic (D) behind his name.

    1. What, exactly, is the proper punishment for having a photo exist of yourself in blackface? Stoning in the public square?

      1. Being forced to resign? As you lefties would have demanded of a republican?

        1. I see you’re ALREADY stoned. Well, get off to the public square!

      2. Well James, it’s not solely his past racism (about which, I believe, he continues to lie). He is a democrat, and as illustrated by the subject of this blog post, it would be hard to find a democrat politician in Virginia (past or present) who has no history of racism. So, it would create a huge power vacuum in Virginia if all the democrats found some integrity (or shame) and resigned from public office. It’s his current support for what clearly appears to be infanticide that should raise bigger concerns. But again, of course, lacking integrity, maybe not that big a concern for democrats.

        1. You answered a lot of questions, but not the one I actually asked.

  10. Forbidding people from marrying is a violation of rights… But so is NOT allowing segregation. As I said above, it wouldn’t happen much anymore anyway, but if people want to exclude people from their spaces they should be able to. A Christian cake baker should be able to deny service to a gay couple just as much as a Jewish baker should be able to deny service to a Nazi. That’s how freedom works!

    1. I don’t understand why people are begging for a state licensing scheme and a tax on your romance.

      If they can’t ban taxing and licensing your romance if your a gay couple, they can’t deny taxing and licensing your romance for any configuration or degrees of romance.

    2. ” That’s how freedom works!”

      Conversely, it might be said that the freedom to walk into any public business and be served is how freedom works.

      1. Freedom is about waking into someone’s private property? Interesting definition of “freedom” you have there.

        Is freedom about being able to stick your member into any public orifice you want?

        1. “Freedom is about waking into someone’s private property?”

          Mind pointing to the word “private” in what I wrote?

          ” Interesting definition of ‘freedom’ you have there.”

          Interesting indeed, seeing how the definition you’re complaining about is the one YOU supplied.

          “Is freedom about being able to stick your member into any public orifice you want?”

          If the tree consents, go to it! You might want to check with the squirrel that lives there, though.

          1. “Mind pointing to the word “private” in what I wrote?”

            You are playing games with the words ‘public’ and ‘private.’

            The traditional distinction was between premises owned and operated by the public — meaning some government institution — and those operated by a private entity, like a business or individual. Under that distinction, a town hall is public, the local supermarket or bakery is private.

            You are using public to mean private businesses that are open to the general public, which is the way it is generally treated in public accomodations laws. Even there, however, the premises are not truly public — the business only allow people on their premises who want to conduct business or considering doing so, not loiterers.

            And, of course, public accommodation has been expanded to include not only the physical location but agreeing to provide a business service to someone or some idea you don’t want to do.

            That is clearly an infringement on private freedom, no matter what nomenclature you want to use.

            1. “You are playing games with the words ‘public’ and ‘private.’”

              No, that’s you, trying to substitute “publicly-owned” for “public”.

              1. For most of the legal history of the United States, and indeed before that in England, it was accepted that a private business was entitled to do business with whom it wished. The only exceptions were monopolies, like stage coaches and other common carriers, and later on utilities like electric and water companies.

                So, yes, my definitions of public and private were and are the commonly understood one.

                The notion that a privately-owned custom wedding baking business is “public” is simply contrary to the way most people use that term.

              2. James, you tool, everybody knows and understands what we’re saying here… You’re just being obtuse.

                The government has no right to tell people who they have to allow on their private property. Period. Them doing so is an abridgement of freedom.

                Our laws are a bunch of BS that simply reinforces an arbitrary set of things that douche bag progressives think is acceptable. This is why in practice no Jewish baker would get in trouble for throwing a skin head group out of his business, but if a white business owner threw out a bunch of equally shitheadish acting Black Panthers there would be a media uproar about it.

                It’s all unequally applied BS. The fact remains that in principle NOBODY should have to serve anybody they don’t want to… Even if they have shitty, biased reasons for doing so.

  11. The online Virginia Code hosted by the state legislature shows a Title 20 Chapter 4, sections 20-50 through 20-60, Colored Persons; Marriage Between White and Colored Persons that they claim was repealed in 1968, by chapter 318 of the Acts of that year. Evidence online is hard to come by but what Google Books has appears to support that conclusion.

  12. “Courts lack a writ of erasure.”

    Chief Justice Marshall disagreed with you on this one. It is, after all, the job of the courts to say what the law is, and an unconstitutional law is void ab initio. Which is a fancy way of saying “erased”, but you get the fancy words when you pay market legal fees.

    1. It’s like you, too, did not bother to read the post. It’s not a fancy way of saying erased. It means something different.

      If a law were erased, then even if the court decision “voiding” that law were eventually overruled by a later court decision, the law would no longer exist and would need to be reenacted. But that’s not what happens; if the court decision is overruled by a later decision, then the law, which remains on the statute books, can be enforced again.

  13. Much of the report concerns old Acts of the General Assembly of Virginia as well as codified law, which the authors justify in a footnote:

    The Acts of Assembly are the complete written legislative record of the General Assembly. They include matters that are codified in the Code of Virginia, as well as those that remain uncodified. Uncodified laws have the same force and effect as codified laws.

    This is an incomplete statement of the situation. Virginia’s laws were most recently codified in 1950, and as detailed in §1-3 of the Code

    All acts and parts of acts of a general nature, in force at the time of the adoption of this Code, shall be repealed from and after February 1, 1950, with such limitations and exceptions as are hereinafter expressed

    Those limitations and exceptions extend the cutoff back into 1948, but no earlier Act “of a general nature” is still in force except insofar as it made it into the new Code.

    1. Well, then, re-enact those old laws and repeal them again, like they did periodically with Jason and Freddy.

  14. According to Wikipedia, the Racial Integrity Act (what was left of it) was repealed in 1975.

  15. Oh good! Now I can marry a voluptuous negress.

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