Tuesday, October 07, 2014

“I Love My Husband”/”I Love My Wife”: The Legacy of Loving v. Virginia – by Way of Windsor

Linda McClain

Media coverage of the immediate aftermath of the U.S. Supreme Court’s orders denying review of federal appellate court rulings striking down laws in Indiana, Oklahoma, Utah, Virginia, and Wisconsin barring marriage by same-sex couples and the recognition of such out-of-state marriages included a remarkable photo of newly-married couples at a rally in Salt Lake City, Utah. One man held a sign, "I love my husband." A woman held a sign, "I love my wife." These signs brought to mind Richard Loving’s poignant plea to his attorney, Bernard Cohen, who repeated it in his oral argument before the Supreme Court: "Mr. Cohen, tell the Court I love my wife, and it is just unfair that I can’t live with her in Virginia." The federal district court opinion striking down Virginia’s restrictive marriage opened with a lengthy quote from Mildred Loving, affirming the right to marry regardless of race, sex, or sexual orientation, and speaking of generational changes as "the older generation’s fears and prejudices have given way." What struck me initially about United States v. Windsor was how Romer v. Evans and Lawrence v. Texas provided the template for Justice Kennedy’s majority opinion, completing a significant trio of landmark opinions about the liberty and equality of gay men and lesbians. Given the deployment of Loving v. Virginia in the cascade of post-Windsor federal district and appellate court cases striking down state marriage laws, I now believe that perhaps the most significant line in Justice Kennedy’s majority opinion for those post-Windsor developments is his caveat, citing Loving  that: "State laws defining and regulating marriage, of course, must respect the constitutional rights of persons," a caveat characterized by many lower federal courts as a "disclaimer of enormous proportion." 

In post-Windsor federal litigation, Loving features prominently as a core precedent for the fundamental right to marry. It also features as an analogous example of why state appeals to history and tradition do not suffice, since, as Justice Posner wrote in Baskin v. Bogan, tradition can be "good" or "bad," and "[t]radition per se . . . cannot be a lawful ground for discrimination – regardless of the age of the tradition."

Loving also supports the theme of moral progress, or evolving understanding of constitutional guarantees, familiar from Kennedy’s own opinions (Lawrence and Planned Parenthood v. Casey). The federal district court in Virginia cited Loving in observing: "Justice has often been forged from fires of indignities and prejudices suffered." In affirming, the Fourth Circuit reiterated Windsor’s invocation of Loving. It observed that "[c]ivil marriage is one of the cornerstones of our way of life" and "allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security." It concluded that "[d]enying same-sex couples" the choice of "whether and whom to marry" "prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance."
The Fourth Circuit’s closing words came to mind when I observed the joy in the faces of the newly-wed couples at the Utah rally – and their proclaiming "I love my husband" and "I love my wife" – and the many other depictions of happiness experienced by couples no longer excluded from marriage in Virginia and the other states affected by Monday’s Supreme Court orders.

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