From Loving to Obergefell: Elevating the Significance of Discriminatory Effects

15 Pages Posted: 26 Jun 2018 Last revised: 21 Feb 2019

See all articles by Holning Lau

Holning Lau

University of North Carolina School of Law

Date Written: June 21, 2018

Abstract

Loving v. Virginia and Obergefell v. Hodges are both landmark Supreme Court cases that advanced marriage equality. In Obergefell, the Court invalidated bans on same-sex marriage by building upon precedent it set nearly five decades earlier in Loving, which declared antimiscegenation laws unconstitutional. Indeed, commentators often describe Loving as an important precursor to Obergefell. Yet Obergefell’s reasoning deviated from that of Loving. The differences between the two cases are all too often overlooked. This Essay thus seeks to address this blind spot by drawing attention to a critical distinction: Loving and Obergefell differ in their conceptualization of discrimination.

When Loving evaluated whether Virginia’s antimiscegenation law was discriminatory, it focused on the law’s facial race-based classifications and on the government’s intent behind the law. Obergefell took a different approach. Its analysis focused on same-sex marriage bans’ deleterious effects on people’s lived experiences. Obergefell’s conceptualization of discrimination thus deviated from Loving because Loving’s approach centered on facial classifications and intentions, whereas Obergefell’s approach centered on effects.

This Essay proceeds in two Parts. Part I elaborates on Loving’s and Obergefell’s contrasting conceptualizations of discrimination. Part II then explains that Obergefell’s departure from Loving — elevating the analytical significance of discriminatory effects — was a remarkable development that should be celebrated and should help guide the development of equal protection doctrine.

Keywords: equal protection, equality, discrimination, Loving, Obergefell, disparate impact

Suggested Citation

Lau, Holning, From Loving to Obergefell: Elevating the Significance of Discriminatory Effects (June 21, 2018). 25 Virginia Journal of Social Policy and the Law 317 (2018), UNC Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3200809

Holning Lau (Contact Author)

University of North Carolina School of Law ( email )

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Chapel Hill, NC 27599-3380
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