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Celebrating Loving: The Fourteenth Amendment and the Right to Marry
On June 12, 1967 -- forty-four years ago this Sunday -- the Supreme Court decided Loving v. Virginia, unanimously striking down the laws of Virginia and fifteen other states that outlawed marriage between people of different races as a violation of the Fourteenth Amendment. Chief Justice Warren’s opinion explained that the denial of the “fundamental freedom” to marry “solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Virginia could not deny Richard Loving and Mildred Jeter the right to marry based on its belief that African Americans were inferior and should not be allowed to marry white persons. “The Fourteenth Amendment,” the Chief Justice wrote, “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.”
In striking down discriminatory marriage laws, the Court’s opinion in Loving called the right to marry a basic civil right of all persons, “one of the vital personal rights essential to the orderly pursuit of happiness,” and for good reason. The Framers of the Fourteenth Amendment recognized the right to marry the person of one’s choosing as a crucial component of freedom and liberty -- a right that had long been denied under the institution of slavery. (For a discussion of the Fourteenth Amendment’s protection of substantive fundamental rights, see The Gem of the Constitution). In the Fourteenth Amendment, the Framers sought to guarantee to the newly freed slaves the right to marry. “The attributes of a freeman according to the universal understanding of the American people,” Sen. Jacob Howard observed in 1866, included “the right of having a family, a wife, children, home.” Few rights were more precious to the former slaves than the right to marry and form a committed, loving relationship with the person of their choice. As one African American soldier put it in 1866, “I praise God for this day! I have been long praying for it. The Marriage Covenant is at the foundation of all of our rights. In slavery, we could not have legalized marriage; now we have it.” (For more discussion of this history, see CAC’s amicus brief in Perry v. Schwarzenegger).
Loving -- aptly -- is the foundation for judicial protection of the constitutional right of all persons to marriage equality --the equal right to marry the person of one’s choice. While Loving, of course, condemned racially discriminatory marriage laws, the text of the Fourteenth Amendment secures substantive fundamental rights and guarantees the equal protection of the laws to all persons. While the Framers were most concerned about racial discrimination, the text they drafted secures equal rights to all persons and prohibits all forms of invidious discrimination. Nearly 150 years after the Fourteenth Amendment was ratified, its text remains the most universal and sweeping guarantee of equality in our constitutional tradition, protecting all persons without exception.
Not surprisingly, Loving’s most enduring lesson -- more than four decades later -- is that the right to marry is a fundamental right that the Fourteenth Amendment guarantees to all persons free from discrimination. Today, the constitutional issues surrounding marriage discrimination are playing out in cases involving state laws that strip gay men and lesbians of the right to marry the person of their choice. In Perry v. Schwarzenegger, a federal district court last year held that such a law in California -- the state’s infamous Proposition 8 -- violated the Fourteenth Amendment. That ruling is now on appeal. It is quite possible that Perry, or another case challenging marriage discrimination against gay men and lesbians, will reach the Supreme Court in the near future. If and when that happens, if the Court is faithful to Loving and the constitutional principles that undergird that decision, it will strike down these discriminatory state laws.
There is no better way to pay tribute to the decision in Loving 44 years ago than to make sure that the Fourteenth Amendment’s guarantee of the equal and fundamental right to marry is truly enjoyed by all persons, whether black or white, rich or poor, gay or straight. As Mildred Loving put it in 2007, reflecting on the ruling to which she and her husband gave their name, “[N]ot a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. . . . That’s what Loving and loving, are all about.”