Sunday, June 11, 2017

50th Anniversary of Loving v Virginia

by Guest Blogger David Sloss 

June 12, 2017, is the fiftieth anniversary of the Supreme Court decision in Loving v. Virginia. In Loving, the Court held that state laws prohibiting inter-racial marriage are unconstitutional. Many legal scholars would say that Loving was part of a constitutional revolution that occurred under the leadership of Chief Justice Earl Warren. I don’t disagree, but I want to offer a slightly different perspective. I think Loving can be explained as part of a process in which the United States aligned federal law with the human rights principles articulated in the Universal Declaration of Human Rights.

The Declaration of Independence says that all men are endowed by their creator with certain unalienable rights. Similarly, the Image1 Universal Declaration of Human Rights proclaims “the equal and inalienable rights of all members of the human family.” The two documents are similar in that respect. However, the men who wrote the U.S. Constitution assumed that it was the responsibility of state governments, not the federal government, to protect the inalienable rights of their citizens. Although the Bill of Rights was adopted in 1791, the consensus view for more than 150 years was that the Bill of Rights protected human rights against the federal government, but it did not protect human rights from infringement by state governments.

Under this view, each state government was free to decide for itself which human rights are “inalienable,” and therefore which rights are protected against infringement by the state. Before the Supreme Court decided Loving in 1967, 34 states allowed inter-racial marriage and 16 states prohibited inter-racial marriage. Under the traditional view, marriage was governed entirely by state law, not federal law.

The idea that human rights protection is governed by state law in the United States began to change in the late 1940s, at about the same time that the United Nations adopted the Universal Declaration. In 1947, in Adamson v. California, Justice Hugo Black argued in a dissenting opinion that the Fourteenth Amendment made the Bill of Rights binding on state governments, and gave the Supreme Court the responsibility to ensure that state governments did not violate the rights codified in the Bill of Rights. Justice Black lost in Adamson. However, his view became more influential over the next 20 years. By the time the Supreme Court decided Loving in 1967, virtually every Justice agreed that the Court had the power to strike down state laws that violated fundamental human rights.

Under Supreme Court doctrine, as it developed in the 1950s and 1960s, if a right was classified as “fundamental,” the Court would strike down state laws violating that right. But if a right was deemed to be “not fundamental,” states were free to make their own rules. Under Supreme Court doctrine, some of the rights included in the Bill of Rights qualified as “fundamental,” but others did not. Moreover, some rights qualified as “fundamental,” even though they were not included in the Bill of Rights.

As I explain in more detail in a recent publication, the result of Supreme Court decisions between about 1948 and 1971 can be summarized briefly as follows: civil and political rights codified in the Universal Declaration of Human Rights qualified as “fundamental rights,” but rights that were not included in the Universal Declaration were not deemed to be “fundamental.” The Supreme Court did not cite the Universal Declaration as part of its rationale for deciding that a particular right should be classified as “fundamental.” But the actual results of Supreme Court decisions aligned more closely with the civil and political rights listed in the Universal Declaration than they did with the rights codified in the U.S. Bill of Rights.

Loving v. Virginia illustrates this point. The Supreme Court said explicitly in Loving that marriage is a fundamental right. However, the U.S. Bill of Rights does not mention a right to marry whomever one chooses. In contrast, the Universal Declaration of Human Rights says: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry.” Therefore, Loving should be understood as one of a series of Supreme Court decisions between about 1948 and 1971 in which the Court gradually aligned U.S. constitutional law with the human rights norms codified in the Universal Declaration.

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