On June 12, 1967, Chief Justice Earl Warren famously declared „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,“ a pivotal statement that, 58 years ago today, forever changed American lives. The Supreme Court case of Loving v. Virginia sought to challenge the Racial Integrity Act of 1924, a law that legalized segregation and the mistreatment of African Americans, and specifically in the case of Mildred and Richard Loving, legalized the ability to discredit their marriage.
On June 2, 1958, Mildred Jeter, a Black and Native American woman, and Richard Loving, a white man, traveled to Washington D.C. to get married, an area where it was legal to do so. When they returned to their home in Central Point, Virginia, their happiness was shattered. In July 1958, police stormed into their bedroom and arrested them for having violated Virginia law, which prohibited a white and colored person from marrying out-of-state and returning to Virginia, a law that was ultimately rooted in Virginia’s Act to Preserve Racial Integrity.
In January 1959, Mildred and Richard Loving pleaded guilty to the charges, believing it was their right to choose whom to love. They were ultimately given a choice: be sentenced to one year in jail or leave the state of Virginia and not enter as a married couple for 25 years. With their decision to leave, they began the process of appealing their conviction, eventually taking their case all the way to the Supreme Court. After months of appeals, the Supreme Court unanimously ruled that under the 14th Amendment’s Due Process Clause they were entitled to substantive due process. This ultimately meant that their fundamental rights were to be protected, even if they are not specifically enumerated elsewhere in the Constitution.
Loving v. Virginia was monumental in helping end segregation, but its effects and impact were seen far beyond than the Lovings could even imagine, laying the groundwork and setting further precedent for other landmark cases to be fought and won under the same clause. Cases such as Roe v. Wade recognized the right to abortions based on a fundamental right to privacy; Obergefell v. Hodges and Lawrence v. Texas ultimately affirmed the fundamental right to intimacy and marriage with anyone you choose; and Griswold v. Connecticut established the right to contraceptives as a private right. These cases, and many others, were all rooted in the idea of substantive due process.
Although these cases are now widely considered a human right in every aspect of American lives, their constitutionality has been brought into question during recent events. The 14th Amendment’s Due Process Clause has historically discussed it is up to ”the U.S. Supreme Court to define and safeguard fundamental rights, including personal liberties and privacy.” This framework allowed for the recognition of rights and liberties to be made legal based on the public’s beliefs and interests, reflecting the evolution of society’s understandings. Despite knowing this, many Americans refuse to believe there’s a possibility interracial marriage will become illegal again, but with the recent overturning of Roe v. Wade in 2022, the American public is now starting to understand there is a potential threat, now understanding how fragile unenumerated rights truly are.
With Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, the Supreme Court has introduced new standards in determining whether or not the 14th Amendment is a suitable argument for past and future cases. In the majority decision by Justice Samuel Alito, he argues that for unenumerated rights to be worth respecting and defending under the Due Process Clause, they must be “deeply rooted in our Nation’s history.” By stating this, Alito reasoned that since abortion was not a part of American history and legal tradition, it would no longer be considered a constitutional right.
Along with abortion rights, substantive due process has rationalized and provided the constitutional basis for other human rights such as intimate relationships (Lawrence), access to contraception (Griswold), and same-sex marriage equality (Obergefell), and it was the reasoning for the decision behind Loving v. Virginia legalizing interracial marriage. By changing the standards for which the 14th Amendment applies, all of these rights are now being called into question, with some being explicitly targeted.
Following the overturning of Roe v. Wade, many Democratic politicians warned that overturning one decision could lead to the reversal of other similar court cases. Soon after the decision was revealed, the longest-serving justice of the Supreme Court, Clarence Thomas shared his opinion stating the justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Before the Dobbs ruling, many Democratic politicians had repeatedly warned the public of the broader implications this ruling could have. During this time, President Joe Biden shared his concerns, stating, “If the rationale of the decision as released were to be sustained, a whole range of rights are in question. A whole range of rights. And the idea [that] we’re letting the states make those decisions, localities make those decisions, would be a fundamental shift in what we’ve done.” In addition to this, the Supreme Court’s liberal wing, including Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, shared their dissenting opinion saying “no one should be confident that this majority is done with its work.” In this statement, the justices went on to explain how the constitutional right to an abortion “does not stand alone,” emphasizing this one decision threatens other cases “protecting autonomous decision making over the most personal of life decisions,” such as Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, are now in danger because they “are all part of the same constitutional fabric.”
Although Justice Samuel Alito, writing for the court’s majority opinion, maintains that the decision to overturn Roe v. Wade poses no threat to other precedents, Justice Thomas’s call to consider other substantive due process cases has left the liberal wing unsatisfied with this assurance. In their dissent, the liberal wing went on to state “The first problem with the majority’s account comes from [Thomas’s] concurrence — which makes clear he is not with the program,” adding, “At least one Justice is planning to use the ticket of today’s decision again and again and again.”
Reiterating this sentiment, President Biden went on to share his thoughts even further, stating, “Roe recognized the fundamental right to privacy that has served as a basis for so many more rights that we’ve come to take for granted, that are ingrained in the fabric of this country: The right to make the best decisions for your health. The right to use birth control. A married couple in the privacy of their bedroom, for God’s sake. The right to marry the person you love.” With this, President Biden emphasised the potential threat this one decision posed for the American people, ultimately declaring it an “extreme and dangerous path the court is now taking us on.”
Although Loving v. Virginia was not explicitly mentioned in Justice Thomas’s call to reconsider substantive due process precedents, its foundational principles are undeniably intertwined with the very cases he targeted. Specifically in the Supreme Court’s decision in Obergefell v. Hodges (same-sex marriage), directly cited Loving as a crucial precedent, establishing a shared constitutional reasoning for personal liberty and the right to marry.
The Dobbs decision has deeply reshaped public perception of the Supreme Court, signaling the beginning of public distrust. Even with widespread public opinion favoring the constitutional right to abortion, the Court still chose not to listen to the public’s will. This now shows the start of a dangerous shift: cultural and political popularity is no longer the basis for these rulings or protecting these unenumerated rights. The Dobbs ruling fundamentally rejects that this notion can serve as a basis for judicial protection, a principle that arguably allowed Mildred and Richard Loving to win their groundbreaking case. This new judicial standard, requiring rights to be „deeply rooted in our Nation’s history and tradition,“ creates a direct and unsettling threat to established liberties that have evolved with the nation’s understanding of equality and privacy.
Loving v. Virginia was not only a landmark decision that fought for marriage equality, but rather a decision that fought for privacy, freedom and equality. While many once believed the ruling in Loving v. Virginia was untouchable and “safe,” the very foundation of this landmark decision has now been publicly and legally called into question.
It’s important to remember that it was not long ago that marrying the person you loved was illegal if you weren’t the same race, a discriminatory sentiment that feels disturbingly less like the past and more like our future. This fundamental right, along with many others, rests on the 14th Amendment’s substantive due process clause, a rationale the Supreme Court is actively dismantling.
This makes the 58th anniversary of Loving v. Virginia more significant than ever. It’s a powerful reminder that basic human rights cannot be taken for granted. They must be fought for every day, continuously, honoring and extending the battle Mildred and Richard Loving so bravely began.
Rafaella Esparza Tello is an undergraduate student at Boston University with a focus on Political Science and Business Administration. She’s an Institute for Liberal Studies intern.
