Proponents of Gay Marriage Have No Legal Argument Under Loving v. Virginia
By Syreeta L. McNeal, CPA, JD
Recently, proponents of gay marriage in California are protesting the passage of California’s Proposition 8. California Proposition 8 amended the California Constitution to restrict the definition of marriage to a union between a man and a woman. Proponents of gay marriage have been making the argument that their struggle is equivalent to the struggle of African-Americans in seeking their civil rights in the 1960’s. One case that proponents of gay marriage readily equate their struggle to is Loving v. Virgina. This article is intended to debunk the legal argument purported by proponents of gay marriage and show that this case does not embrace recognition of gay marriage on a state level.
Overview of Loving v. Virginia
On June 12, 1967, the United States Supreme Court held that Virginia’s statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Processes Clauses of the Fourteenth Amendment. Listed below is the issue, relevant facts, relevant law and analysis by Chief Justice Warren in rendering his opinion:
- Whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment?
- In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. 
- Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County.
- At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. 
- On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years.
- Section 20-58 of the Virginia Code (1959): "Leaving State to evade law. If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage."
- Section 20-59 of the Virginia Code (1959): "Punishment for marriage. If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."
- U.S. Const. 14th Amend. Sec. 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Analysis by Supreme Court
Violates the Equal Protection Clause of the Fourteenth Amendment:
- There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race.
- The statutes proscribe generally accepted conduct if engaged in by members of different races.
- Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
- At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.
- There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.
- The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.
- We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race.
- There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
Violates the Due Process Clause of the Fourteenth Amendment:
- These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.
- The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
- Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888).
- To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.
- 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.
Differences between Loving v. Virginia and California Proposition 8
First, the California Constitutional Amendment to ban gay marriage does not violate Due Process Clause of the Fourteenth Amendment of the U. S. Constitution. In 1959, the Lovings were charged with a state crime and incarcerated for marrying interracially in the District of Columbia and moving back to Virginia to reside. A white heterosexual couple could marry in Virginia without violating the law in 1959. A black heterosexual couple could marry in Virginia without violating the law in 1959. Only an interracial heterosexual couple could not marry in Virginia without violating the law in 1959. As a result, the U. S. Supreme Court considered the Virginia miscegenation statutes a direct violation of the due process of law for interracial heterosexual couples to exercise a basic right to marry in 1959.
In contrast to what occurred to the Lovings in 1959 in Virginia, currently the law does not penalize or incarcerate California citizens who choose to engage in same sex marriage in other states. California Proposition 8 amended the California Constitution to not recognize gay marriage from another state. What California has done is replicate what 47 states have done in their state constitutions. They defined marriage as the union between a man and a woman. This is not a penalty to California citizens like what Virginia did in 1959 to the Lovings. If a California citizen chooses to go to Massachusetts and get married and come back to California to live, they would not be incarcerated for the act like the Lovings had happen to them in 1959. The California amendment banning gay marriage is similar to what 47 states have done to their constitution by not recognizing gay marriage.
Second, the California amendment banning gay marriage does not violate the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution. There are three levels of scrutiny that the court uses to review cases brought under the Fourteenth Amendment. Strict scrutiny is the highest level of constitutional review and it forbids state law from discriminating on the basis of race, ethnicity or natural origin. The second level of constitutional review is intermediate review which forbids state law from discriminating on the basis of gender. The last level of constitutional review is rational basis and a court will uphold a state law if it appears to be one that is reasonably related to the end of protecting the health, safety and welfare of its residents. In Loving, the Virginia miscegenation statutes in 1959 were scrutinized under strict scrutiny because the state law discriminated on the basis of race. In California, the constitutional amendment banning gay marriage is not discriminating on the basis of race. Also, it is not discriminating on the basis of gender either. All the amendment is doing is following what 47 states did to their constitution and define marriage as the union between a man and a woman. So, it is illogical that the argument purported by the proponents of gay marriage should equate their struggle in California to that of Loving v. Virginia. That is why I am proud that 70% of the African-American citizens in California as well as the other citizens in California who did not fall for the delusional argument advocated by proponents of gay marriage. If proponents of gay marriage want to equate their struggle to the cases of the civil rights movement in the 1960’s, they need to dig a little bit deeper because Loving v. Virginia is not applicable.
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 See Loving v. Virginia, 388 U.S. 1 (1967).
 Id. at 2.
 Id. at 3.
 Id. at 4.
 Id. at 11
 Id. at 12.
 Id. at 8.