Glucksberg, Lawrence, and the Decline of Loving's Marriage Precedent

36 Pages Posted: 6 Aug 2012 Last revised: 20 Nov 2012

Date Written: May 1, 2012


In the debate over the constitutionality of laws banning same-sex marriage, both sides look to Loving v. Virginia, the seminal 1967 Supreme Court case which struck down a Virginia statute banning interracial marriage. Proponents of same-sex marriage claim that a ban on same-sex marriage violates the fundamental right to marriage as acknowledged by Loving, and discriminates on the basis of sexual orientation. Opponents of same-sex marriage argue that race and sexual orientation are not legal equivalents in an attempt to distinguish Loving. Both sides, however, fail to recognize that Loving is distinguishable on the basis of what rights are at issue, rather than what parties are allowed to marry. Specifically, at the time of Loving, marriage was the only context in which there was a right to cohabit and a right to sexual intimacy. In contrast, those core rights of marriage that the Court found to be fundamental in 1967 have been recognized outside of the institution of marriage by legal developments in the intervening years. Consequently, changes in laws banning cohabitation and fornication affect any marriage precedent that assumes the existence of those laws.

This note examines how those legal developments have affected the precedential value of Loving in particular, rather than marriage case law in general. It then applies the Supreme Court’s methodology for defining fundamental rights as outlined in Washington v. Glucksberg, which requires a court to consider the specific conduct prohibited by the statute in question before determining if it is a fundamental right. Developments in the law, culminating in Lawrence v. Texas, have recognized the right to cohabit and the right to consensual sexual intimacy, and in so doing have deprived marriage of its status as the exclusive domain where those rights can legally be exercised. The combination of Glucksberg’s methodology and the elimination of laws banning cohabitation and fornication renders Loving’s substantive due process holding irrelevant to the debate. In current same-sex marriage cases, both sides, as well as the courts, will be unable to rely on it as precedent.

Suggested Citation

Egger, Jeremiah, Glucksberg, Lawrence, and the Decline of Loving's Marriage Precedent (May 1, 2012). 98 Va. L. Rev. 1825, Available at SSRN:

Jeremiah Egger (Contact Author)

University of Virginia ( email )

1400 University Ave
Charlottesville, VA 22903
United States

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