Justice Alito's Dissent in Loving v. Virginia

Abstract

The Supreme Court has played a critical role in advancing marriage equality. In 1967, in Loving v. Virginia, the Supreme Court unanimously struck down miscegenation statutes, which criminalized interracial marriage, as unconstitutional. In 2013, the Court in United States v. Windsor invalidated Section 3 of the so-called Defense of Marriage Act (“DOMA”), which precluded federal agencies from recognizing marriages between same-sex couples even if the marriages were legally valid in the couples’ home state.

While Loving was a unanimous decision, the Court in Windsor was closely divided. Almost half a century after Chief Justice Warren issued his unanimous Loving opinion, the Loving dissent has been written. Justice Alito authored it in Windsor. Justice Alito fashioned his dissent as upholding DOMA. But the rationales he employed were much more suited to the facts of Loving than the facts of Windsor.

Justice Alito advanced five arguments in his Windsor dissent for why the Court should not intervene and invalidate DOMA: (1) the issue of same-sex marriage is controversial; (2) the Constitution is silent on the matter of same-sex marriage; (3) decisions about the recognition of same-sex marriages should be left to states and elected officials; (4) the legal recognition of same-sex marriages is not deeply rooted in American tradition; and (5) the consequences of recognizing same-sex marriage are unknown. Justice Alito’s Windsor dissent is most striking for what it is missing from his list of arguments: a legitimate government interest in affirmatively denying federal recognition of valid state marriages between same-sex couples.

This Article explains how each of Justice Alito’s reasons for upholding DOMA applies equally or more strongly to miscegenation laws at the time of the Loving opinion than to DOMA in 2013. There is simply no internally consistent way to defend DOMA with Justice Alito’s arguments without also upholding the constitutionality of miscegenation laws. Thus, Justice Alito not only authored a dissent for the Windsor case; he effectively wrote a dissent in Loving nearly 50 years after the case was decided. His reasoning would require the upholding of Virginia’s miscegenation statute, as well as the criminal statutes in a dozen other states that in 1967 forbade interracial marriage. To the extent that the legal community now recognizes that the former anti-miscegenation regimes represent a shameful chapter of American history, the fact that the same arguments used to defend miscegenation laws are being invoked to justify bans on same-sex marriage suggests that such bans are inherently suspect and probably unconstitutional. Just as the arguments in favor of miscegenation laws proved unpersuasive – and often offensive – the arguments against same-sex marriage are correspondingly unconvincing.