The Legacy of Loving

Abstract

The Supreme Court sounded the death knell for anti-miscegenation laws in Loving v. Virginia in 1967. This essay, published in honor of Loving's fortieth anniversary, considers the personal, cultural, and legal legacy of the decision, which brought an abrupt end to the practice of outlawing interracial marriage. But since those laws were already on the way out at the time Loving was decided, its legacy must be constructed by looking more broadly at its impact on American law and society. That exploration reveals first a powerful personal legacy for Mildred and Richard Loving, who were permitted to return to Virginia after having been forced to abandon their home, family, and friends. And couples like the Lovings were immediately able to celebrate their own marriages, even in states that still had laws prohibiting them from doing so. But it is not clear that the decision in Loving did much to promote greater marital integration between races. States ceased being able to ban interracial marriage, but removal of that obstacle did little to spur more of it. Even today, tremendous social and cultural barriers to interracial marriage exist, particularly between whites and African-Americans. The cultural legacy of Loving was thus, like the law's power to transform societal norms more generally, limited. Loving did have a meaningful impact on American law, however. Loving was neither just about marriage, nor just about race. It was, instead, a case that left a three-fold doctrinal legacy. Loving was crucial to the development of due process protection for marriage and related privacy rights, the enforcement of federal constitutional limits on state regulation of domestic relations, and the insistence that the equal protection clause be used as a sword to eliminate racial classifications and other practices that perpetuate racial subordination. Loving, which shaped two substantive constitutional doctrines and recalibrated the balance of federal-state power over domestic relations, thus deserves the "landmark case" status it is so often given.

Keywords: Loving, miscegenation, and same-sex marriage