Today in Supreme Court History: April 10, 1967

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

Comments

[Dan Schiavetta]

Totten v. United States, 92 U.S. 105 (decided April 10, 1876): secret agent can’t sue United States for back pay, due to publicity and exposure of government secrets; must make claim on contingency fund of agency which hired him

Pollock v. Williams, 322 U.S. 4 (decided April 10, 1944): invalidating statute providing that failure to perform paid-for work was prima facie evidence of fraud (i.e., no defenses allowed), which had been re-enacted by Florida legislature despite the Court invalidating similar statutes; prima facie presumption provision could not be severed from the rest of the statute, because its presence coerced guilty pleas (as it did in this case; defendant was “an illiterate Negro”)

Morford v. United States, 339 U.S. 258 (decided April 10, 1950): Conviction for failing to produce “subversive” organization materials to House Un-American Activities Committee. Refusal to allow federal employees on jury to be questioned on whether their “Loyalty Oath” might influence their partiality was reversible error (somehow those jurors were not excused “for cause”).

Chicago, St. Paul, Minneapolis & Omaha Ry. Co. v. United States, 322 U.S. 1 (decided April 10, 1944): ICC can grant new railroad service to intermediate points not specifically applied for

Franks Bros. v. NLRB, 321 U.S. 702 (decided April 10, 1944): NLRB properly ordered company to bargain with union after unlawful refusal to bargain resulted in union losing its majority membership of workers

White Oak Transportation Co. v. Boston, Cape Cod & New York Canal Co., 258 U.S. 341 (decided April 10, 1922): cargo owner (2,393 tons of coal) can get full recovery from vessel owner even though damage partly caused by canal owner; vessel owner can seek contribution from canal owner later

Honda v. Clark, 386 U.S. 484 (decided April 10, 1967): claims by Japanese nationals whose accounts with American banks were seized after Pearl Harbor not bound by 60-day Trading with the Enemy Act deadline where they were not listed on schedule mailed out to proposed recipients

State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523 (decided April 10, 1967): federal interpleader brought by trucker’s liability insurer did not resolve underlying claims against insured, just the claims on the insurance proceeds (as insurers’ defense counsel I brought a federal interpleader action against some 20 claimants, but I was ethically bound to make sure they all agreed to discontinue their individual suits before I put the $ on the table)

Walling v. Reuter, 321 U.S. 671 (decided April 10, 1944): restoring district court order (which the circuit court had reversed) restraining corporation and related individuals from violating Fair Labor Standards Act, where corporation had dissolved after cert had been granted; order (which held that employees packing fruit for wholesaler were involved in interstate commerce and had to be paid minimum wage) still good against individuals and successor entities

Ferry v. Spokane, Portland & Seattle Ry. Co., 258 U.S. 314 (decided April 10, 1922): dower (there’s an old word!) is not a “privilege or immunity” subject to Equal Protection of Fourteenth Amendment; state can limit widow’s dower if she lives out of state

[Noscitur a sociis]

Pollock v. Williams, 322 U.S. 4 (decided April 10, 1944): invalidating statute providing that failure to perform paid-for work was prima facie evidence of fraud (i.e., no defenses allowed), which had been re-enacted by Florida legislature despite the Court invalidating similar statutes; prima facie presumption provision could not be severed from the rest of the statute, because its presence coerced guilty pleas (as it did in this case; defendant was “an illiterate Negro”)

This is not quite right:

providing that failure to perform paid-for work was prima facie evidence of fraud (i.e., no defenses allowed)

The evidentiary presumption didn’t mean that a defense couldn’t be offered; in fact, the court expressly noted that the fact that a defense was possible (by, e.g., a defendant testifying to a lack of fraudulent intent) wasn’t enough to save the statute.

provision could not be severed from the rest of the statute, because its presence coerced guilty pleas

The court found that the presence of the presumption affected the guilty plea here, making the case ripe for decision, but that wasn’t the basis for the holding. Rather, the court concluded that the statute operated to create a peonage system forbidden by federal law.

[Brett Bellmore]

Loving v Virginia was only necessary because of the Slaugherhouse Court perpetrating Pace v Alabama. Until they did that, states and lower courts had been falling in line with the 14th amendment on this topic.

Alabama, Arkansas, Florida, Louisiana, Mississippi, South Carolina, all repealed these statutes after the 14th amendment was ratified, and only reenacted them after Pace. In other states, while the statutes hadn't been repealed, the judiciary were not permitting their enforcement.

Most people fail to realize that the civil rights revolution really began with the ratification of the 14th amendment, and then was deliberately sabotaged by the Supreme court. The modern civil rights revolution was a long delayed and judicially distorted second act...

[apedad]

To be clear, the SC in Pace " . . . ruled that the criminalization of interracial sex did not violate the Equal Protection Clause of the Fourteenth Amendment because whites and non-whites were punished in equal measure for the offense of engaging in interracial sex. The Court did not (address) the constitutionality of the ban on interracial marriage." (wiki)

Loving was SPECIFICALLY about the constitutionality of the ban on interracial marriage and the Court decided, "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State."

[SRG2]

The county court judge. Leon Bazile, famously uttered this abominable piece of reasoning: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

Sadly he died before the SC ruled.

[Stupid Government Tricks]

That "reasoning" always annoys me. Maybe God did create the different races on separate continents for a reason. But He obviously changed his mind when He let whites emigrate to the Americas.

Saw an article the other day about a car wreck which surprisingly injured nobody, and a reaction "THANK GOD!" without any blame on God for causing the accident.

He sure does move in mysterious ways. What bugs me the most is that these idiots are the loudest. The quiet ones, the real Christians, don't waste their time puzzling over such nonsense.

/rant

[David Nieporent]

Not as crazy as the people who purport to believe that "God" saved Trump from the shooter in Pennsylvania. Like, okay, if "God" wanted the guy to miss, fine, I suppose who can argue with that… but why did "God" want a retired firefighter to die? Why not just cause the gun to malfunction, or the bullet to miss everyone?

[Stupid Government Tricks]

He moves in mysterious ways.

[ducksalad]

We don't know what sins the firefighter may have had hidden deep in his heart. Perhaps he was ripe for smiting.

[Michael Ejercito]

See also Perez v. Sharp, 32 Cal.2d 711 (1948) "We are not required by the facts of this case to discuss the reasoning of Pace v. Alabama except to state that adultery and nonmarital intercourse are not, like marriage, a basic right, but are offenses subject to various degrees of punishment." Perez, 32 Cal.2d at 726

[Thought about __ all my life]

NO, you undercut your own argument by taking the legal view of 'who is a Black?" Who defined Homer Plessy (as white as a person could be) as a BLACK ---- it was government !!
Until we get to race-neutral things like Loving are ridiculous. NOW we have men marrying me, now there is perversion.

[Brett Bellmore]

I don't take any legal view of who is black. (I don't capitalize "black", either, unless it's the first word in a sentence.) I'm just noting that Loving v Virginia was only necessary because of the Court's earlier perfidy; As I say, most people aren't aware that 'anti-miscigenation' laws were on their way out during Reconstruction, until the Supreme court revived them as part of it's quest to end Reconstruction.

I think that's part of what is today distorting civil rights jurisprudence, the Court's reluctance to admit that the cases spiking the 14th amendment back then were wrong when decided, and should have been directly overturned, not worked around using vague oxymorons like 'substantive due process'.

[Brett Bellmore]

But, of course, the vague oxymorons allowed the Court to just wing it, instead of wham, incorporating the whole Bill of Rights in one fell swoop. And the Court really wanted the power to pick and chose among our rights which were "fundamental", and maybe invent a few new ones along the way.

[apedad]

14A was ratified in 1868 and Loving was decided in 1967.

Hardly a display of "'anti-miscigenation' laws were on their way out during Reconstruction . . . . "

Virginia had 100 years to correct their problem and wasn't going to until the Lovings (and the rest of the US), prevailed.

Oh and clap-clap-clap on your moral purity.

[Brett Bellmore]

Anti-miscegenation laws in the United States

"Arkansas, Florida, Louisiana, Mississippi, Texas, South Carolina, and Alabama legalized interracial marriage for some years during the Reconstruction period. Anti-miscegenation laws rested unenforced, were overturned by courts or repealed by the state government (in Arkansas and Louisiana). However, after white Democrats took power in the South during "Redemption", anti-miscegenation laws were re-enacted and once more enforced, and in addition Jim Crow laws were enacted in the South which also enforced other forms of racial segregation."

I repeat: They were on their way out during Reconstruction. But the Court put an end to Reconstruction, if you've somehow forgotten.

Jim Crow happened after Reconstruction, but it doesn't change that Reconstruction actually did happen, even if it later got undone.

[The Margrave of Azilia]

Acknowledging that Reconstructed states, including their courts, let people marry interracially based on the 14th Amendment would harm the progressive narrative.

Progressives want us to believe that the 14A right to interracial marriage was an unheard-of constitutional innovation - like same-sex marriage! To acknowledge that the right to marry interracially was secured by the 14A until the Court's retrogression in the Pace case would confirm that interracial marriage actually has a firmer basis in history and tradition than the same-sex stuff.

[Thought about __ all my life]

Well that died under Clarence's hammering
https://claremontreviewofbooks.com/restoring-the-constitution-2/

[Frank Drackman]

Virginia is for Loving!

[Brett Bellmore]

You've got to wonder how many earlier test cases that could have reversed Pace got passed up, waiting for a plaintiff with that name.

[JoeFromtheBronx]

The lawyer for the state noted during oral argument that interracial marriages could be banned just as incestual and polygamous marriages could be. These common tropes in same sex marriage debates were not novel to that context.

William M. Marutani, for the Japanese American Citizens League, as amicus curiae, urging reversal, was given some argument time during the Loving oral argument.

Naim v. Naim, an earlier case the Supreme Court avoided substantively deciding, involved a ban on white-Asian marriages.

Marutani was interned in an American concentration camp during WWII. He later became a state judge.

[Brett Bellmore]

You can kind of justify bans on incestual marriage, on the basis of public health, and that such bans are traditional, but polygamy is a widespread traditional form of marriage, and it's suppression in the US, though probably a good idea from a social stability viewpoint, appears to have been a gross violation of the establishment clause.

[ducksalad]

What you say made sense under the old definition of marriage as a government license to have heterosexual intercourse and reproduce.

But now marriage is defined as a license to file joint tax returns, put someone on your insurance, and inherit without hassles. There's little justification to ban siblings from filing a joint tax return, and a woman marrying her sister puts no more burden on insurance or social security than marrying someone else.

On the other hand, now there are some rational reasons to ban polygamy. You could have one person buying an insurance policy and then "marrying" 87 uninsured people in return for a cut of the savings on premiums. And then get sick and have 87 people demanding the right to hospital visitation. And then die and have 87 people different demanding to inherit by default. But I guess countries with polygamy have figured how to handle this stuff.

[Thought about __ all my life]

Brett, you are having a very illogical day.

THe Justice in Reynolds v United States faults you for being illogical, not knowing your history, and making the law the servant of immorality and morality

"the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. . ."

[Noscitur a sociis]

appears to have been a gross violation of the establishment clause

How so? I can see a free exercise argument, maybe.

[John F. Carr]

I think Loving is cousin to Shelley v. Kraemer (banning enforcement of restrictive covenants). In both cases the prohibited conduct didn't fit well into the classes of acts banned by the 14th Amendment. The court decided racial classification was bad enough to stretch constitutional principles to fit. The cases are distinguishable because the prohibition in Loving really was state action.

[JoeFromtheBronx]

"didn't fit well into the classes of acts banned by the 14th Amendment"

The law was based on the idea that black people intermixing white people tainted the white race. It fit pretty well.

A strict originalist version might have held that social legislation was not covered. Brown v. Bd alone showed such a version was no longer good law by then.

Banning racial discrimination in contracts, including of real estate, was a concern in the Civil Rights Act of 1866* & was a logical application of the 14A. Enforcing contracts is state action.

==

* All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

[JoeFromtheBronx]

Progressives want us to believe that the 14A right to interracial marriage was an unheard-of constitutional innovation

They want us to look at the evidence, which shows that the median position was the interracial marriage was not protected. Two members of the House wrote a minority report saying women had the right to vote. Didn't make it the median position.

A few Reconstruction courts akin to the Fifth Circuit today suggests possibilities but there was a broad understanding that social equality was not protected by the 14A. And marriage included social equality. The 14A was a civil rights measure, which was understood more narrowly originally. After all, to make it clear, a new amendment even was necessary for voting. John Marshall Harlan signed on to Pace.

Nor do they deny that "interracial marriage actually has a firmer basis in history and tradition than the same-sex stuff." They argue that both have developed over time. The median legal position for both was that they were not protected. Anti-racism has the firmest basis. Other types of anti-discrimination are still warranted. And, that includes fighting sex and sexual orientation discrimation including same sex marriage bans.

The principles of the amendment as understood over time warrants that both -- as Mildred Loving said near the end of her life -- should be protected.

[The Margrave of Azilia]

"as Mildred Loving said near the end of her life"

Have you checked out what the "Roe" of Roe v. Wade said near the end of *her* life?

Some Supreme Court plaintiffs are more worth citing than others, I guess.

The fact remains - back in the day, if Bilbo (Theodore, not Baggins) had compared interracial marriage to sodomy, he would have been denounced as a hatemonger for even suggesting parallels.

"A few Reconstruction courts akin to the Fifth Circuit today"

I don't even know what you're doing - I know the Fifth Circuit is supposed to be evil, but that's because they're right-wing, and surely you're not suggesting that the courts which affirmed the right to interracial marriage were right-wing?

"the median position was the interracial marriage was not protected"

It was protected in most states by 1967, just not in the Jim Crow states which had overthrown the pro-intermarriage Reconstruction regimes.

The denial of interracial marriage was a redefinition of the institution - a fundamental redefinition. Can you think of similar fundamental redefinitions?

[A Japanese Student]

Sorry for late post.

Contempt of Court Case (First Petty Bench, decided April 10, 1976): Appeal of contempt of court (and resulting detention) mooted by release of appellant (Japan's contempt law only applies to disorderly conduct inside a courtroom ("direct contempt"))

Robbery Causing Injury Case (First Petty Bench, decided April 10, 1976): Mandatory minimum of seven years for robbery resulting in injury is within legislative discretion (Penal Code was later amended to reduce it to six years; this matters, because the judge has discretion to halve the mandatory minimum and sentence the defendant to probation if the resulting term is three years or less)
Theft Case (Third Petty Bench, decided April 10, 1987): Golf balls sunk under ponds are owned by the owner of golf course (not a lost property)

Choe Seon-ae Case (Second Petty Bench, decided April 10, 1998): Noncitizens must remain in Japan while seeking judicial review of re-entry permit denial; case dismissed as moot because petitioner lost legal status upon exiting

Choe Seon-ae Case (Second Petty Bench, decided April 10, 1998): Not abuse of discretion to strip Korean citizen born in Japan of permanent residence for failure to submit fingerprints (which many opposed as invasion of privacy); the Government eventually gave up and repealed the fingerprinting requirement (cross-appeal by the government)