Today in Supreme Court History: April 10, 1967

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

Comments

[Dan Schiavetta]

I’m sure it’s because of the times I was raised in, and the racism of my native culture, but whenever I see black arms and white arms embracing, I get a warm fuzzy feeling that things will turn out all right. I don’t think that feeling will ever leave me.

[John F. Carr]

Ebony and ivory live together in perfect harmony, side by side on my piano keyboard. Oh, lord, why don't we?

[Rev. Arthur L. Kirkland]

Clingers gonna cling, John.

Well, until replacement. So there is a href="https://www.youtube.com/watch?v=1gpXMGit4P8">hope!

[DaivdBehar]

Zero tolerance for any servant of the Chinese Commie Party. The purification begins in 2023.

[DaivdBehar]

Biden and Harris get impeached. As Speaker, Trump resumes his rightful place as President. That is the clinger plan.

[DaivdBehar]

Imprisoned criminals have far more morality, common sense, and sense of justice than the pro-criminal, scumbag lawyer profession.

https://www.msn.com/en-us/video/entertainment/jailed-man-beat-up-by-inmates-for-robbing-81yearold-at-atm--i-survived-a-crime--ae/vi-XXXXXXX?ocid=msedgntp#WthfaiucVBQ_yt

[Brett Bellmore]

Personally, I prefer INXS's "Original Sin". From a musical standpoint.

Both good songs, though.

[DaivdBehar]

A rare correction of dumbass, Democrat prosecution of a non-crime. As stupid as the law reversed sounds, so will will 90% of our rules enacted today. The stupidity and toxicity of the lawyer profession is eternal.

[Rev. Arthur L. Kirkland]

Thinking about the Loving decision might have been what prompted Sen. Cornyn to <a href="https://www.motherjones.com/politics/2022/03/john-cornyn-marriage-equality-ketanji-brown-jackson-supreme-court/&quot😉 reminisce (aloud) the other day about the 'good old days' when marriage involved two people of the same race and different genders, with Jesus prominent in the picture.

Carry on, clingers. Your betters will, as always, let you know just how far and how long, though.

[bernard11]

Link doesn't go where you say.

[Rev. Arthur L. Kirkland]

Maybe this will be better.'

Either way, John Cornyn is still an obsolete, low-quality bigot and a largely representative Republican.

The wages of your bigotry will be political and cultural irrelevance, clingers.

[Cal Cetín]

And you'll be up in Heaven laughing at all the superstitious bigots!

[Rev. Arthur L. Kirkland]

I mock and disparage them while they are alive. I try to forget them after replacement.

[CJColucci]

Anybody out there who can put together a plausible originalist argument that Loving was correctly decided?

[Dan Schiavetta]

How about:

Nobody can say whites and blacks are being denied “equal protection of the laws” if there is no law that applies. There was no law guaranteeing interracial marriage and certainly none was contemplated by the framers of the 14A. Blacks could not marry whites, and whites could not marry blacks.

[Dilan Esper]

That's textualist (and correct), but not originalist.

[Bob from Ohio]

"textualist (and correct)"

Wrong twice.

[CJColucci]

That sounds like an argument that Loving was not correctly decided.

[DaivdBehar]

The law violated the Ninth Amendment. Marriage is none of the state's business.

[CJColucci]

Actually, unless no relationship even counts as a "marriage" unless the state (or someone to whom the state cedes authority) says so.

[Brett Bellmore]

It would be more to the point that no relationship counts as a "marriage" so far as the state is concerned, unless the state says so.

[not guilty]

A few states still recognize common law marriages, and several states which do not in the first instance, acknowledge common law marriages from other states.

[Brett Bellmore]

Sure:

1) Legalization of inter-racial marriage was one of the arguments against the 14th amendment.
2) As soon as it was ratified, multiple states repealed their laws against inter-racial marriage in the understanding that they'd been rendered unconstitutional.
3) Lower courts immediately started striking down such laws as unconstitutional.

So, it's abundantly clear this WAS understood to be implied by the 14th amendment.

On the other side, the Supreme court in Pace v Alabama denied that. But isn't it widely accepted that the Supreme court, rather than faithfully upholding the 14th amendment, was deliberately ruling so as to render it a nullity? I don't think we can seriously consider those rulings as honestly informing us as to what the amendment was understood to do.

[bernard11]

I wasn't aware of all that, but I was going to say, "The 14th amendment means what it says, even if some, at the time, were oblivious of its implications.";

[Dan Schiavetta]

That was merely the scare tactic used by the opposition.

[Brett Bellmore]

The scare tactic used by the opposition, and how it was enforced until the Supreme court set out to spike it.

Sometimes the scare tactics are nothing but the truth, and the advocates are just lying to try to hold down opposition.

[Bob from Ohio]

Law allows marriage, it can't give unequal treatment based on race.

Blacks could legally marry whites in at least 6 US states when 14A was adopted so the writers, Congress and the states certainly knew about interracial marriage.

[not guilty]

What with substantive due process and unenumerated rights under attack, how soon will Loving be reconsidered?

[not guilty]

That would also have the effect of undermining Obergefell v. Hodges, which was a 5-4 decision. Three of the dissenters are still on SCOTUS, and three right wingers have since been confirmed.

[Bob from Ohio]

Obergefell isn't going anywhere either. But you can overrule Obergefell without even mentioning Loving.

[DaivdBehar]

Obergefell is a lawyer delusion. Marriage is only between a male and a female, for the purpose of supporting family formation, legally. Nothing the lawyer does will ever make homosexual marriage any more than a friendship in reality.

[DaivdBehar]

Once marriage boundary is breached, there is no limit to friendships. I want to marry my loyal dog. I love my sex robot, and want to be with her forever. I want my favorite bacterium to be take care of after my passing.

[not guilty]

Go ahead and sue claiming a right to marry your dog. Make your evidentiary record. I doubt you will get very far, but that would be a better use of your time than yapping and yammering on comment threads.

[CJColucci]

What would it even mean to be married to one's dog? My dog Bella is at my feet as I type this. If I were to have sex with her, I would face prosecution under the animal cruelty laws, just as I would face prosecution under the rape laws if I tried to have non-consensual sex with my human wife. How would we determine whether Bella had consented to sex with me, or whether she even could? Could I claim her as a spouse, if I were not married to my human spouse, and have "our" taxes assessed accordingly? Could Bella take my property after my death by intestate succession, as my human wife could? Would Bella be consulted in an emergency if the "next of kin" were required to make some decision on my behalf? Would Bella be able to object, as my human spouse certainly would, if I decided to euthanize or sell her?
If you want to say that your dog is your wife and you are her husband, go ahead. Knock yourself out. But it would have no more legal substance than my referring to myself as Bella's "Daddy" would have.

[Krychek_2]

Marriage is, among many other things, a contract. Get back to us when Bella has the capacity to enter into a contract.

[not guilty]

A federal district court in Ashland, Kentucky has granted summary judgment as to liability against Kimberly Jean Bailey Wallace Davis McIntyre Davis, with a jury to fix the amount of damages, for her refusal to issue marriage licenses to same sex couples as required by Obergefell. When that case works its way up to SCOTUS, it could provide a vehicle to reconsider Obergefell.

The Supreme Court appears ready to jettison stare decisis. The constitutional rights to marriage, parental control of children's upbringing, sexual coupling, procreation (or not) are all unenumerated. All are potentially at risk under this Court.

[Cal Cetín]

This is why we must maintain constant vigilance on behalf of equality.

Your reference to the undoubted right to have sex was phrased in an exclusionary and discriminatory way.

Describing the fundamental constitutional right to sex as "sexual coupling" demeans the right and is very threatening to the rights of polygamists and people who enjoy polyamorous sex-and-dining experiences (sometimes referred to derogatorily as orgies).

There is sexual three-ing, four-ing, and of course sexual one-ing. It is highly oppressive to refer to "coupling" only, as if the Constitution is limited by your prudish tastes.

[not guilty]

Can you cite authority recognizing the various configurations you mention as being of constitutional magnitude?

[Cal Cetín]

Now, that's another manifestation of your discrimination.

Go back a few decades and you wouldn't be able to find a cite for a right to gay marriage. Go back just a few years and you wouldn't be able to find a Supreme Court cite for the rights of women who happen to have penises.

The Supreme Court was late to the party in recognizing those rights, but at least it recognized them eventually.

And despite your prudish objections, the Court will eventually get around to recognizing the rights of polyamorists and onanists.

[CJColucci]

Given the enforcement problems inherent in a law against onanism, any laws against it would themselves be exercises in onanism.

[Michael P]

Just as soon as the Squad and Bernie get their court-packing way, and our new leftist overlords decide that the government should decide who gets to mate with whom.

[Bob from Ohio]

Never.

You might as well ask when slavery will be legal again. Its equally likely.

[Brett Bellmore]

Well, if Thomas got his way, we would replace substantive due process with Privileges and Immunities. The content and application wouldn't be identical, but there'd be a lot of overlap.

You don't need substantive due process for the 14th amendment to have teeth, you just have to admit the court was wrong to defang it back in the late 1800's, and put the substance back where it belongs.

[Cal Cetín]

I must say, this discussion went in a completely unpredictable direction.

[Krychek_2]

Here, there is no such thing as an unpredictable direction.

[Cal Cetín]

And it seems that whatever else our betters have in mind for the rest of us, it doesn't involve proper HTML usage or factual accuracy.

[Cal Cetín]

The injustice is that it took over half a century for the Supreme Court to recognize that government-recognized interracial marriage logically and ineluctably entailed same-sex marriage.

Not only did they wait a whole generation before recognizing this blindingly obvious moral fact, they even decided in the early 1970s that a claim to a right of same sex marriage was not only wrong but didn't even raise a substantial constitutional question. Even justices we're accustomed to think of as "liberal" signed on to this iniquitous decree.

There is still work to be done. These so-called liberal justices who opposed same-sex marriage need to have their statues and portraits taken down, and if any buildings, rooms, etc. have been named after them those places be promptly renamed after some LGBT hero like Fidel Castro.

[not guilty]

No SCOTUS decision that initially recognized a fundamental personal constitutional right has been overruled. That state of affairs appears to be on the cusp of change. A chill wind blows.

[Cal Cetín]

Just recently there was a discussion here about how the Supreme Court overruled its 1923 decision of Adkins v. Children's Hospital, which proclaimed a right for adult women in non-dangerous jobs - and their employers - to mutually contract with each other for salary without government intruding with minimum-wage laws.

Then that decision was overruled in 1937, much to the distress of Justice Sutherland and three fellow feminists, who dissented from the overruling as follows:

"The common-law rules restricting the power of women to make contracts have, under our system, long since practically disappeared. Women today stand upon a legal and political equality with men. There is no longer any reason why they should be put in different classes in respect of their legal right to make contracts; nor should they be denied, in effect, the right to compete with men for work paying lower wages which men may be willing to accept. And it is an arbitrary exercise of the legislative power to do so."

https://www.law.cornell.edu/supremecourt/text/300/379

Thus we see the Court overruling a feminist opinion and replacing it with a sexist, and presumably cisnormative, opinion.

[Cal Cetín]

Later, fortunately, the Court ratified the Equal Rights Amendment, so that such sexist laws will no longer stand.

But they never reinstated the fundamental constitutional right of economically-vulnerable people to contract for what the government considers to be less than a living wage.

[not guilty]

The decisions you mention deal with economic rights -- a different category from fundamental personal rights. See footnote 4 of Carolene Products.

[Cal Cetín]

Yes, that was a situation where the Court at first *believed* that freedom of contract was a "fundamental personal constitutional right" and then realized that it wasn't such a right, and acknowledged its error. Or, rather, went too far and upheld a sexist law.

Which is totally different from a future Court saying that it was wrong about some other constitutional right, like same sex marriage. Because same sex marriage is so rooted in the traditions of our people as to be ranked as fundamental.

Thus, such a future court's decision would be just as wrong and unjust as its early-1970s decision against same-sex marriage.