The Case Named Loving

Mildred Jeter and Richard Loving grew up in the same rural county in Virginia, married in Washington in June 1958 because they could not marry at home, and returned to Central Point to live. Weeks later the county sheriff entered their bedroom at night with a warrant and arrested them.

Their crime was their marriage. Virginia's Racial Integrity Act of 1924 made marriage between a white person and a person of colour a felony, and had closed the obvious escape by also criminalising leaving the state to marry and coming back. They pleaded guilty in January 1959 and were sentenced to a year in prison, suspended on the condition that they leave Virginia and not return together for twenty-five years.

They moved to Washington, and hated it. In 1963 Mildred wrote to the Attorney General, who referred her to the American Civil Liberties Union, and the case began its climb.

The trial judge's reasoning, written when he denied their later motion, is the quotation everybody remembers, and it is worth knowing that the Supreme Court itself quoted it: that Almighty God created the races and placed them on separate continents, and that the arrangement of those continents showed He did not intend for the races to mix. The state's lawyers did not rest on that. They had something they thought was stronger.

Virginia argued that its law was not discriminatory because it applied equally to everybody.

The structure of the argument deserves attention, because it is the most durable move in the history of defending a classification. The statute, Virginia said, forbade a white person from marrying a black person and a black person from marrying a white person, imposing the identical penalty on each. No race was treated worse than another. There was therefore no unequal protection of the law, merely a rule about pairings that fell symmetrically on all.

On 12 June 1967 a unanimous Supreme Court rejected it. The holding was that a classification drawn by race is subject to the heaviest scrutiny whatever its symmetry, and that this one had no purpose other than maintaining white supremacy. Sixteen states still had such laws. All sixteen became unenforceable that day.

Then comes the part that is easy to skip and shouldn't be.

Having lost its force in 1967, Alabama's constitutional ban stayed in the state constitution. Not as live law, since no clerk could refuse a licence and no prosecutor could charge, but as text. It was finally removed by a referendum in November 2000, which passed with about fifty-nine and a half per cent in favour. Twenty-five of the state's sixty-seven counties voted against removal.

The forty per cent who voted to keep a dead letter is the number to sit with, because it measures something the 1967 ruling could not reach. A court can make a rule unenforceable in an afternoon. The opinion behind the rule moves on its own schedule, and a referendum thirty-three years later is one of the few instruments that ever takes its temperature.

Two things to carry forward.

The first is that dead-letter law is normal. Repealing a symbol costs political capital and delivers no practical change, so symbols stay on the books long after they stop operating, which means the contents of a statute book are a poor guide to what a state actually does.

The second is the equal-application argument, which you will meet again in completely different contexts. Whenever a rule sorts people into categories and then treats the categories alike, somebody will argue that symmetry disposes of the objection. Loving is the cleanest available answer: the question is not whether the burden falls evenly, but what the category exists in order to do.