Loving v. Virginia: Interracial Marriage (06/12/1967)


Loving v. Virginia

Did Virginia‘s antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment?

See Fourteenth Amendment for more.  

Argued: 04/10/1967

Decision Date: 06/12/1967

Decision Record: 9-0; yes

Justices in Favor: John Harlan, Hugo Black, William Douglas, Potter Stewart, William Brennan, Byron White, Earl Warren, Tom Clark, Abe Fortas

Justices Dissenting: None


Effect of the Decision

This case abolished Virginia’s antimiscegenation law, which prohibited inter-racial marriage, because it violated the Fourteenth Amendment.


In Favor

In the side of the affirmation, representing the Lovings, attorney Philip J. Hirschkop argued, “You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law.

We referred to the law itself — oh at first, I’d like to bring the Court’s attention, there are some discrepancy in the briefs between us and the common law especially as to which laws are in essence.

They have particularly said that Section 20-58 and 20-59 of the Virginia Code are the only things for consideration by this Court, and those two Sections, of course, are the criminal section, making a criminal penalty for Negro and white to intermarry in the State of Virginia.

20-58 is the evasion section under which this case particularly arose which makes it a criminal act to people who go outside the State to avoid the laws of Virginia to get married.

We contend, however, Your Honors that there is much more in essence here.

That there’s actually one simple issue, and the issue is, may a State proscribe a marriage between two adult consenting individuals because of their race and this would take in much more in the Virginia statutes.

Sections 20-54 and 20-57 void such marriages and if they void such marriages, you would only decide on 20-58 and 20-59, these people, whether they go back to Virginia and they are in Virginia now, will be subject to immediate arrest under the fornest — fornication statute, and the lewd and lascivious cohabitation statute and more than that, there are many, many other problems with this.

Their children would be declared bastards under many Virginia decisions.

They themselves would lose their rights for insurance, social security and numerous other things to which they’re entitled.

So we strongly urge the Court considering this to consider this basic question, may the state proscribe a marriage between such individuals because of their race and their race alone.”


In the opposition, represented by attorney Bernard S. Cohen, he claimed, “While there is no doubt in our minds that these statutes are unconstitutional and have run afoul of the Equal Protection Clause of the Fourteenth Amendment, we urge with equal strength that the statutes also run afoul of the Due Process Clause of the Fourteenth Amendment.

Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko versus Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Myer versus Nebraska and Skinner versus Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment.”


The majority decision for Loving was unanimous. Justice Earl Warren wrote the opinion slip. He wrote, “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.”

My Opinion:

In this case, I agree with the majority opinion. The Fourteenth Amendment clearly expresses that each individual has equal rights, no matter their race. Everyone has the right to marriage. Interracial marriage is just two people of different races exercising their individual rights. The Equal Protection Clause holds that “no states shall deny to any person within its jurisdiction ‘the equal protection of the laws.'” The antimiscegenation law completely contravenes the Equal Protection Clause, because it forbids marriage of different races, when the Clause states that everyone has their own rights, despite their skin color.

Virginia’s antimiscegenation law strongly violates the constitutional right to the Fourteenth Amendment, and so therefore, I affirm the majority opinion.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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