Loving v. Virginia

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Part of the series on
U.S. Discrimination Law
Standards of Review

Rational basis review
Intermediate scrutiny
Strict scrutiny

Other Legal Theories

Substantive due process
State action doctrine

Defining Moments in Law

The 14th Amendment
Plessy v. Ferguson
Brown v. Board of Education
Loving v. Virginia
U.S. v. Virginia
Romer v. Evans
Lawrence v. Texas

Modalities of Constitutional Law


Loving v. Virginia was a Supreme Court Case dealing with interracial marriage.

Miscegenation Laws, and the Facts of the Case

Laws against interracial marriage were still in effect in sixteen US states as recently as 1967. Similar laws in other states had been repealed by then.

Richard and Mildred Loving were married in 1958. He was a white man, and she was a woman of mixed black and American Indian heritage. They got married in Washington D.C. because in their home state of Virginia the law still forbade interracial marriages, known in those days as 'miscegenation'. After their marriage, they lived together in Caroline County, Virginia. In 1959 they were found guilty of violating the law and both were sentenced to one year in jail, although they were promised a suspended sentence if they left the state and did not return for 25 years.[1]

Mr. and Mrs. Loving returned to Washington D.C. and in 1963 they brought a lawsuit that challenged the constitutional basis of Virginia's anti-miscegenation law. The Virginia Supreme Court upheld the law in March 1966, but in June 1967 the U.S. Supreme Court unanimously ruled it unconstitutional. Because of this, all the states which still had such laws could not enforce them.

Holding of the Court

The Court invalidated the ban on interracial marriages, and compelled Virginia to recognize interracial marriages, on equal protection grounds. Virginia argued that the ban was one of equal application - that is, blacks cannot marry whites and whites cannot marry blacks - and therefore not "discriminatory" under the Fourteenth Amendment, since the law did not classify on the basis of race per se. The Court found this formalist appeal unpersuasive, recognizing that a facially sound classification may have an invidious discriminatory intent. In other words, the Court would inquire not just as to formal soundness, but as to subordinative or racist effect as well, to vindicate the intent of the framers of the Fourteenth Amendment. This functionalist reading of the Fourteenth Amendment is characteristic of the functionalist zeitgeist, following Brown v. Board of Education, and the Court's continued insistence to this day that statutory equal application is not a saving grace if it is subordinative.

Importantly, the Court also noted that the long tradition of anti-miscegenation laws would not save it from constitutional scrutiny. In other words, a measure's long tradition is not a guarantee of its justice.

Finally, the Court made an overture to substantive due process in the closing notes of the case, stating that a fundamental right to marry may have been implicated by the ban on miscegenation. Rather than revive substantive due process, though, the Court merely noted its willingness to consider such a plan of attack on discriminatory measures in the future. This was perhaps an attempt at "tipping off" civil rights lawyers as to another way to attack facially equal-application, yet discriminatory, measures.

Significance of the Case

The case is partly significant because it is about how the United States defined people in terms of their race. The Virginia law, as well as prohibiting marriages between people of different races, also categorized multiracial people according to a set of arbitrary definitions of their 'race'. A white person was defined as someone who had only "Caucasian blood", excepting only people who had no more than one great-grandparent Native American ancestry and no other non-white ancestry. This exception was to make allowance for a long-established group of descendants of John Rolfe and Pocahontas. A person was defined as black if they had any "negro" ancestry, as the people of that time expressed it. A person with at least one Native American grandparent, or one Native American grandparent and one "Negro" great-grandparent and who was also a member of an Indian tribe, was defined as "American Indian".[2]

The case is also significant because it is about how the United States defined marriage. Before 1967, a legal marriage could not be contracted in states with anti-miscegenation laws if the partners were of different races. Thus the case redefined what constituted a marriage. Some proponents of homosexual rights have cited this case in support of a right to marriage,[3][4] although opponents argue that this is not viable as the 'Loving' marriage was still between a man and a woman.

Here is an alternate view from a Catholic writer:

The definition of marriage was not at stake in Loving. Everyone agreed that interracial marriages were marriages. Racists just wanted to ban them as part of the evil regime of white supremacy that the equal protection clause was designed to destroy.[5]

Original Intent

Loving v. Virginia was a living constitutionalist decision, which codified the moral views of nine lawyers on the Supreme Court into U.S. constitutional law. The decision focused on the Fourteenth Amendment, yet those who ratified that amendment did not intend to legalize interracial marriage, and instead leave it up to the people of each state. While the result may fit in with modern sensibilities, the way the Court arrived at it, and the precedent it set, set the groundwork for the Court's later recognition of a constitutional right to same-sex "marriage".

Text of the Supreme Court decision: Loving v. Virginia



388 U.S. 1

June 12, 1967, Decided

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents a constitutional question never addressed by this Court: 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. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with 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. He stated in an opinion that:

"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." After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment.... The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 20-58 of the Virginia Code:

"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, which defines the penalty for miscegenation, provides:

"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."

Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all marriages between "a white person and a colored person" without any judicial proceeding, and §§ 20-54 and 1-14 which, respectively, define "white persons" and "colored persons and Indians" for purposes of the statutory prohibitions. The Lovings have never disputed in the course of this litigation that Mrs. Loving is a "colored person" or that Mr. Loving is a "white person" within the meanings given those terms by the Virginia statutes.

Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person," a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants' statements as to their race are correct, certificates of "racial composition" to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage.


In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

The State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so. Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse. In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[at] best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect." We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished....

The Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

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 "distinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." 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 (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. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense."

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.


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. 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.

These convictions must be reversed.

MR. JUSTICE STEWART, concurring.

I have previously expressed the belief that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor." Because I adhere to that belief, I concur in the judgment of the Court.


I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.—Letter by Mildred Loving, December, 2007.[6]


  1. http://www-personal.umich.edu/~kdown/loving.html
  2. http://www.ameasite.org/loving.asp
  3. Coolidge, David O, Playing the Loving Card: Same-Sex Marriage and the Politics of Analogy, BYU Journal of Public Law, 1998, 12 BYU.
  4. Pamela S. Karlan, "Loving Lawrence", Stanford Law School.
  5. [1]
  6. Mildred Loving's Statement