The Volokh Conspiracy

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Justice Thomas and Loving v. Virginia

He already addressed the ruling at length in his Obergefell dissent.


Justice Thomas is married to a white woman. And the couple lives in Virginia. Prior to the Supreme Court's decision in Loving v. Virginia, the law of the Commonwealth criminalized interracial marriage. In the wake of Dobbs, critics have tried to hoist Justice Thomas on his own petard: Oh yeah, you would overrule Obergefell, but what about Loving? Indeed, Justice McDonald of the Connecticut Supreme Court, who is in a same-sex marriage, got in on the fun with some wordplay:

"Mr. Justice Thomas had much to say today about my loving marriage. Oddly he didn't have much to say about his 'Loving' marriage."

This argument was predictable, and flawed.

First, Justice Thomas already addressed the status of Loving in his Obergefell dissent. And he expressly distinguished Loving from Obergefell.

Petitioners' misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of "liberty" beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecutedfor marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3. [FN5] They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3. [FN6]

[FN5] The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. "America's earliest laws against interracial sex and marriage were spawned by slavery." P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland's 1664 law prohibiting marriages between " 'freeborne English women' " and " 'Negro Sla[v]es' " was passed as part of the very act that authorized lifelong slavery in the colony. Id., at 19–20. Virginia's antimiscegenation laws likewise were passed in a 1691 resolution entitled "An act for suppressing outlying Slaves." Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 1969) (italics deleted). "It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy." Pascoe, supra, at 27–28. Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire "to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world." Id., at 8. And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time).

[FN6] The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment's Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia, O.T. 1966, No. 395, pp. 12–16.

I hope that distinction will suffice. And I trust Justice McDonald can read the Obergefell dissent to learn Justice Thomas's views on Loving.

Second, Loving was premised on both the Equal Protection Clause and the Due Process Clause. Even if you reject substantive due process, you could still find that Loving reached the correct result on the basis of the Equal Protection Clause. After all, the law literally treats people differently on the basis of their race. Two white people can get married, but a white person and a black person cannot. Even the most conservative jurists would deem such a law unconstitutional.

Third, there is an insinuation lurking in the background of the claim: Justice Thomas did not talk about Loving because doing so would undermine his own marriage. Or, stated differently, Justice Thomas cannot be neutral on the topic of interracial marriage, so he simply ignored the case; thus he is a hypocrite. This charge is perhaps the most pernicious. And it is not new. During the Prop 8 litigation, there was an effort to disqualify Judge Vaughn Walker because he was a gay man who was in a long-term relationship with another man. The defenders of Prop 8 claimed that Judge Walker could not possibly handle the case objectively because he stood to benefit personally from a ruling that Prop 8 was unconstitutional. Ultimately, Walker did not recuse. And he based his decision on a long line of cases involving black judges, who likewise refused to recuse in racial discrimination cases. I like to think that Judge Walker, like Justice Thomas, could objectively assess cases that could affect their personal relationships.