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Loving and Constitutional Traditionalism

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In light of the passing of Mildred Loving, it’s useful to return to standard set out by Antonin Scalia to apply the equal protection clause in cases that don’t involve installing a political ally in the White House:

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that “equal protection” our society has always accorded in the past [sic]. But in my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.

Under this standard, I think Loving is clearly wrongly decided. Bans on interracial marriage are not unambiguously prohibited by the Constitution, and there was an unbroken tradition of such bans in 1967. With Brown, at least, the traditionalist (while on exceedingly shaky ground) might be able to claim that apartheid was a minority, sectional tradition rather than a truly national one. But bans on interracial marriage existed in many states North and South, and in Gallup surveys taken in the 50s were supported by huge national majorities. If traditionalism is the right way of interpreting ambiguous constitutional traditions, Loving is wrong.

The point here, of course, if not that there’s any chance that Scalia would vote to uphold such a ban today, but rather that the idea that traditions of discrimination are self-justifying is a singularly unappealing way of reading the Constitution. The idea that we can’t consider inviduous gender distinctions (for example) an equal protection problem because they weren’t considered problematic in 1865 is unpersuasive in the extreme.

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  • CJColucci

    And what would an “originalist” like Clarence Thomas have to say about Loving? Will he and his wife be turning themselves over to the Virginia authorities tonight?

  • howard

    CJ, i thought about the same thing!
    that said, scott, for once, i don’t think you’re harsh enough: what scalia is proposing here has nothing to do with reading the constitution at all. he is simply voting his prefernce for the status quo, which is, of course, what social conservatism is all about at any period of time (which is why prof delong periodically reminds us what national review had to say about martin luther king and the southern civil rights movement), but which is completely unmoored to constitutional reading at all.

  • Uh, what’s the grounds for thinking that scalia wouldn’t vote to uphold such a ban today? Its pretty clear from bush v gore that he’d go the limit if he could on any and everything.
    aimai

  • howard

    aimai, thomas’ marriage makes accepting interracial marriage part of society’s values to be preserved, at least as far as scalia would go.

  • greennotGreen

    Having just read the Loving decision, it strikes me that with that case as a precedent, it’s really hard to deny same-sex marriage. Of course, one of the arguments in Loving was that the anti-miscegenation law in Virginia only targeted Negroes marrying Whites (to use the quaint capitalization rules of the day) and not Negroes marrying other races. But I suppose anti-gay marriage laws only prohibit gay men from marrying other men, and not from marrying women, so it’s still targeted at one group of people. Heterosexuals can marry heterosexuals, and heterosexuals can marry homosexuals, but homosexuals can’t marry homosexuals. Seems like there’s an equal protection case there, but IANAL.

  • Mark S.

    I love that, in the paragraph cited, all of the Scalia’s supporting citations are from his own dissents. In other words, he isn’t even bothering to argue that the Court is misapplying its own precedents; he’s just bitching that it never adopted his warped reading of the 14th Amendment.
    I really wonder how future legal scholars will treat Scalia. I think Rehnquist and even Thomas will have their defenders, but Scalia will be dismissed as the partisan hack he is.

  • And of course, Scalia also is an advocate of originalism, but the people who wrote the 14th amendment had no intention of it overturning anti-miscegenation laws–as Virginia argued.

    Bans on interracial marriage are not unambiguously prohibited by the Constitution, and there was an unbroken tradition of such bans in 1967.

    Um, what do you mean by “an unbroken tradition of such bans”? That there had been an anti-miscegenation law in some states for a long time before 1967? That none of them had ever been struck down? What?

    Of course, one of the arguments in Loving was that the anti-miscegenation law in Virginia only targeted Negroes marrying Whites (to use the quaint capitalization rules of the day) and not Negroes marrying other races.

    That’s true, but if one were to say that anti-miscegenation laws were unacceptable because they singled out blacks, it would be easy to get around that by writing a law that says “No-one may marry anyone outside of their own race” (and the fact that no-one tried this after Loving was decided is, I think, indicative of the fact that no-one in their right mind would interpret Loving that way). Maryland’s law was close to that–it prevented whites, blacks, and Malays all from marrying someone from the other two groups.

  • phil

    The Due Process clause is tradition-looking. The Equal Protection clause is anti-tradition-looking. This isn’t rocket scaliary.

  • Snarki, child of Loki

    Skemono:
    “…Maryland’s law was close to that–it prevented whites, blacks, and Malays all from marrying someone from the other two groups.”
    What did Maryland have against Malaysians? Were Indonesians okay? Phillipines? Polynesians? Samoans?

  • What did Maryland have against Malaysians? Were Indonesians okay? Phillipines? Polynesians? Samoans?

    Actually, the law was overturned in part because of a white/Samoan marriage–Jo Ann Kovacs was prevented from marrying Meki Toalepai, this made the newspapers, and people started thinking “Y’know, this is a really stupid law.”

  • joel

    “what scalia is proposing here has nothing to do with reading the constitution at all. he is simply voting his prefernce for the status quo, which is, of course, what social conservatism is all about at any period of time ”
    I would suggest that social conservatism is more concerned with the status quo ante.

  • SIG357

    “The idea that we can’t consider inviduous gender distinctions (for example) an equal protection problem because they weren’t considered problematic in 1865 is unpersuasive in the extreme.”
    That’s a religious or political argument, but most assuredly not a lawerly one. The law is not supposed to flow like wax with the mere passage of time. It is supposed to be constant. If it needs to be altered there are clearly defined mechanisms for doing so. Judges deciding it’s time for a change is not one of them.

  • flenser

    “I suppose anti-gay marriage laws only prohibit gay men from marrying other men, and not from marrying women, so it’s still targeted at one group of people.”
    Yes. Of course, all laws target one group of people. Laws against speeding single out speeders, for instance. It’s pretty much the definition of a law.

  • Mark S.

    Yes. Of course, all laws target one group of people. Laws against speeding single out speeders, for instance. It’s pretty much the definition of a law.
    That’s why there are different levels of review. As for:
    That’s a religious or political argument, but most assuredly not a lawerly one.
    Here’s an argument SIG357 might find more lawyerly:
    The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.
    I guess, according to SIG357, this should have remained the law of the land until an amendment had passed saying “Equal Protection includes women.”

  • Vincent

    Having just read the Loving decision, it strikes me that with that case as a precedent, it’s really hard to deny same-sex marriage.
    It’s not that hard at all. Or so claim many of the courts in the country. Many judges will simply say that gays are not a protected class like race is so Loving is not binding precedent. Frankly, I don’t see why sexual orientation shouldn’t be a protected class under federal law (immutable trait, long history of discrimination, lack of political access, etc) but that’s how judges have gotten around this argument.

  • Vincent, but wouldn’t the argument be not that sexual orientation is protected, but that gender is? Anti-miscegenation laws don’t prevent individuals of any particular race from marrying at all, but they do prevent two people from marrying each other based on their respective races. Same-sex marriage bans don’t prevent individuals of any particular gender from marrying at all, but they do prevent two people from marrying each other based on their respective genders. So in that way the cases seem parallel with respect to protected classes.
    One difference is that the anti-miscegenation laws worked against pairs of people of different races and the same-sex marriage bans work against pairs of people of the same gender, but I’m not sure that that should cut any ice (I’d have to look at Loving and know more about the law).

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