Does the unconstitutionality of anti-miscegenation laws tell us whether federal law bans anti-gay discrimination in employment?

Last week, in Hively v. Ivy Tech Community College, the U.S. Court of Appeals for the 7th Circuit, sitting en banc, held that Title VII's prohibition of discrimination based on sex should be interpreted to include a prohibition of discrimination based on sexual orientation. The court essentially argued that if you treat someone differently because she is a woman who has romantic relationships with women, as opposed to a man who has romantic relationships with women, that is literally discrimination based on sex. This is true, the court, adds, even if Congress didn't recognize this implication of banning discrimination based on sex in 1964.

I find Judge Diane Sykes's dissent very persuasive, but I thought it was worth addressing one point raised by the majority in some detail, its analogy between Hively and Loving v. Virginia. In Loving, the Supreme Court departed from an almost 100-year-old precedent and held that a state prohibition on interracial marriage violated the 14th Amendment's equal protection clause.

Here is the relevance of Loving, according to the majority:

As we noted earlier, Hively also has argued that action based on sexual orientation is sex discrimination under the associational theory. It is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits. This line of cases began with Loving, in which the Supreme Court held that "restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." 388 U.S. at 12. The Court rejected the argument that miscegenation statutes do not violate equal protection because they "punish equally both the white and the Negro participants in an interracial marriage." Id. at 8. When dealing with a statute containing racial classifications, it wrote, "the fact of equal application does not immunize the statute from the very heavy burden of justification" required by the Fourteenth Amendment for lines drawn by race. Id. at 9. In effect, both parties to the interracial marriage were being denied important rights by the state solely on the basis of their race….

The dissent implies that we are adopting an anachronistic view of Title VII, enacted just three years before Loving, but it is the dissent's understanding of Loving and the miscegenation laws that is an anachronism. Thanks to Loving and the later cases we mentioned, society understands now that such laws are (and always were) inherently racist. But as of 1967 (and thus as of 1964), Virginia and 15 other states had anti-miscegenation laws on the books. Loving, 388 U.S. at 6. These laws were long defended and understood as non-discriminatory because the legal obstacle affected both partners. The Court in Loving recognized that equal application of a law that prohibited conduct only between members of different races did not save it. Changing the race of one partner made a difference in determining the legality of the conduct, and so the law rested on "distinctions drawn according to race," which were unjustifiable and racially discriminatory. 4 Loving, 388 U.S. at 11. So too, here. If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex.

I don't think this analogy quite works. The equal protection clause doesn't prohibit "race discrimination," as such, by the states; rather, it prohibits the states from denying any individual "equal protection of the law." As understood in the late 19th century (and I think as properly understood today), a court faced with an equal protection challenge identified the relevant classification made by the law. If the classification was arbitrary or oppressive, then the law was unconstitutional. If the classification was not arbitrary or oppressive, then the law was constitutional.

When anti-miscegenation laws were initially upheld in the late 19th century, racial classifications, likely contrary to the framer's intent, received no more scrutiny than any other classification. Moreover, as witnessed by the majority opinion in Plessy v. Ferguson, most judges thought that racial classifications were generally non-arbitrary, but instead reflected both real racial differences and natural antipathy among the races.

By the time Loving was decided, by contrast, the Supreme Court had created rules of construction under which the vast majority of classifications enjoy a very strong presumption of constitutionality, while classifications based on race suffer a very strong presumption of unconstitutionality. The court's jurisprudence makes sense if we see it as a modern take on the "anti-arbitrariness" principle; we now believe that race is an almost inherently arbitrary classification, while we don't want courts second-guessing "ordinary" classifications which are likely to be at least arguably non-arbitrary for fear of judicial overreach a la the (mythical version of the) Lochner era.

In short, the underlying principle, that the 14th Amendment protects individuals from arbitrary and oppressive discrimination by the government, hasn't changed. What's changed is our collective understanding that race is generally an arbitrary classification. Once one has a strong presumption that racial classifications are arbitrary, it becomes clear that enforcing a ban an interracial marriage cannot be squared with the equal protection clause.

Title VII, by contrast, didn't incorporate a general principle, like a ban an arbitrary discrimination, that would invite judges to figure out how to apply that principle in such a way as to include the evolution of social understandings. Rather, Title VII banned specific types of discrimination by legislative fiat, while leaving most types of discrimination—including height, weight, looks, age, political viewpoint, wealth, education and, yes, sexual orientation—untouched. To enforce Title VII against private employers, we don't ask, "has an employer classified its employees in an arbitrary manner" but "has an employers discriminated against an employee based on one of Title VII's prohibited criteria?" (Such discrimination need not even be arbitrary; an employer not only has to treat religious employees fairly, for example, but must provide reasonable accommodations for their religious obligations).

In other words, to figure out what sort of discrimination the 14th Amendment bans, we look to the original understanding of equal protection of the laws as a ban on arbitrary classification. The 14th Amendment contains no limiting interpretive principle beyond "don't allow arbitrary discrimination." To figure out what sort of discrimination based on sex Title VII bans, we look to the original understanding of what discrimination based on sex means, which was, as the 7th Circuit had previously held, "that it is unlawful to discriminate against women because they are women and against men because they are men," and that "Congress had nothing more than the traditional notion of 'sex' in mind when it voted to outlaw sex discrimination."

So while I don't find the 7th Circuit's opinion absurd, and I'm far from troubled by the practical result, I don't think it's wise for judges to interpret a carefully constructed statute aimed at very specific, enumerated types of discrimination the same way they would interpret a constitutional provision that sets forth a general overarching principle—and that's not even taking into consideration another possible distinction, which is the argument that statutes, much more easily amended by Congress, should be construed more strictly than constitutional provisions that are nearly unamendable.