Today in Supreme Court History

Today in Supreme Court History: April 10, 1967

|The Volokh Conspiracy |

4/10/1967: Loving v. Virginia argued.

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  1. The “penumbras and emanations” that allowed Clarence Thomas to marry a white woman.

    1. More like overcoming the bigot statists who thought it was any of government’s business to interfere in the first place. Nothing penumbric emanating at all, a straight up case of racist nannies.

      1. That’s a pretty big penumbra you’ve created.

        There is no “right to marry” in the Constitution, any more than there is a right to privacy (Griswold).

        1. There is no “right to marry” in the Constitution, any more than there is a right to privacy (Griswold).

          Very interesting.
          From a public health standpoint, I can make the case that Griswold has led to more disease & death than the Wahun virus, and hence said “right to privacy” would preclude any testing. Medical Privacy.

          1. Ha. You’re right, originalists would oppose that, just as they would have opposed the Loving decision (and Griswold).

          2. You think there weren’t huge sexually transmitted disease problems before Griswold?

        2. There is no right to breathe in the Constitution.

          Nor a right to be left-handed.

          Nor a right to wear a mullet.

          Nor a right to wear socks and sandals.

          1. “Breathe” necessarily comes under the heading of “life”, subject to equal protection analysis.

            If left-handed people are forced to be right-handed, and it affects their livelihood, then it would fall under “property”.

            As for the other two, you’re correct. You’re talking penumbras and emanations.

            1. No, you can live by other means; breathing itself is not in the Constitution.

              1. Um . . . ok.

    2. More the actual text of the 14th Amendment.

      1. ? Both whites and blacks were prohibited from marrying outside their race. The only way they would be denied equal protection is if there was a right to marry in the Constitution, and there isn’t.

        1. Nor a right to post a comment beginning with a question mark.

          How many silly rights do you think are not in the Constitution?

          1. “Marry” is an important right, not silly. But not in the Constitution.

  2. For one side of the political divide, this case was both “the last straw” and “the beginning of the end.”

    1. Who are you quoting?

      1. What the strawman said on finding no TP.

    2. I am reminded of what Justice Ginsburg has said about _Roe_ — do you honestly believe — honestly believe — that such laws would have remained on the books long had SCOTUS not ruled as it did?

      Or that they wouldn’t have soon been challenged under the “full faith & credit” clause in the few states where they remained?

      Conversely, how friendly did the Lovings find 1967 Virginia to be, or did they move out of state? How many interracial marriages did Virginia perform prior to, say, 1974?

      Personally, I think this case is moot.

      1. It certainly wasn’t moot at the time.

        And yes, the Lovings, to avoid prison, were ordered to leave the state for 25 years (conveniently until after Mildred passed childbearing age).

        1. After all, there’s no right to live where you want.

          1. I don’t know if it’s ever been litigated. Can a state, after due process, can order someone to leave the jurisdiction?

            Not at issue in Loving, where it was the result of a plea bargain.

            1. Plea bargains are voluntary, of course. No coercion involved. You could plea bargain to torture twice a day and that would be ok.

              1. That’s really funny.

      2. I don’t know. Do you think states would still be banning SSM if Obergefell went the other way?

        1. If Obergefell went the other way, the state of affairs at the time (with conservative states refusing to grant marriage licenses to gay people) would still exist, though with the culture changing so quickly, in time gay couples would be quietly granted licenses here and there, and finally all over the place.

        2. “still be banning SSM”

          That would depend on what you mean by “banning.”

          Do you mean “failure to recognize”? To me, that’s hardly the same as banning.

          The state doesn’t ban chess simply because it doesn’t use the results of chess games to determine inheritance rights, guilty verdicts, and other government decisions.

  3. As for originalism – are we going with the account under which the original meaning of the constitution is unascertainable and therefore meaningless, or is original meaning ascertainable to the extent that it allows bans on marriages disapproved by the state?

    (I would have thought that Jim Crow laws like these were the product of a failure to enforce the 15th Amendment – thus the “poisoned fruit” of a constitutional violation. That’s before we get into discussion of whether a right to marry is consistent with original meaning, but let’s stipulate that the original meaning allows it in principle. But if the 15th Amendment had consistently been enforced according to *its* original meaning, how much demand would there have been for these marriage bans?)

    1. “allows it” = “allows marriage bans”

      1. You must mean 14th amendment, not 15th.

        1. I mean the anti-racial-disenfranchisement amendment.

          The one where you can’t have your vote taken away just because you’re the “wrong” race.

          That was widely disregarded for quite some time. During this interval Virginia tightened its anti-intermarriage laws (and the original laws were, I think, inherited from a period before blacks were allowed to vote).

          So before we get to the topic of a 14th Amendment right to marriage, let’s note the role that disenfranchisement played in getting these laws passed in the first place.

          Now, it happens I think there’s a 14th Amendment right to marry – as a privilege or immunity of citizenship – but the issue is deciding which laws violate that right. We have to know what marriage is before we know if the right to marry was violated.

          Does a “eugenic” sterilization law (such as the Virginia law upheld by the Supreme Court in 1927, with the approval of the “progressive” judges) violate the right to marry? Not according to the Court. But if marriage is a union whose purposes include children, then making someone incapable of having children would seem to interfere with that right.

        2. You ought to just come out and admit you think the State has ultimate power to do anything. You’d be less stress and have to equivocate less.

          1. Whom are you addressing?

  4. This case was clearly an equal protection issue.

    There is no right to attend a state university. But admission can not be denied on the basis of race.

    Same with recognition of marriage.

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