Gay Marriage Ruling Evokes Memories Of Loving V. Virginia
MELISSA BLOCK, HOST:
The Supreme Court's decision not to rule on same-sex marriage cases has led many to think back to a monumental Supreme Court ruling on matrimony from 1967. That was the year the justices struck down state bans on interracial marriage, in the case Loving vs. Virginia. It was named for the interracial couple who brought the case, Mildred and Richard Loving. To explore the history then and now, I'm joined by Walter Dellinger. He's former acting solicitor general in the Clinton administration and was a Supreme Court law clerk to Justice Hugo Black, the year after the Loving decision. Walter Dellinger, welcome to the program.
WALTER DELLINGER: Thank you.
BLOCK: Let's talk about where the country was in 1967, on interracial marriage in terms of state laws. How many states allowed for interracial marriage and how many didn't?
DELLINGER: Well, by 1967, when the Court decided Loving, only 16 states still banned interracial marriage. What is interesting is that at the time the court decided Brown versus the Board of Education in 1954, ending the system of Jim Crow public education, the majority of states banned interracial marriage. And similar to what the court has done with gay marriage, the court then was unwilling to take on the question of interracial marriage when it first came before the court, two years after Brown, while it was struggling over the implementation of Brown. So it was only 13 years after the Brown decision that the court was willing, in 1967, to take on interracial marriage in the Loving case.
BLOCK: It's interesting, though, because if you look at the states that did allow interracial marriage in 1967, most of those had done so for many decades. In some cases, they had never had any laws against it. This was not a fresh issue for a lot of those states.
DELLINGER: That is true. That is true. The lines had hardened. A number of states, you know, of the 30 states that had bans on interracial marriage at the beginning of the 1950s, half of them had gotten rid of those. But others had sort of reaffirmed their prohibitions on interracial marriage. And so by 1967, when that case came up before the Supreme Court at that time, they had no choice and were prepared to take on the issue.
BLOCK: Well, that's an interesting point. It was clear, at that time, that the justices did want to take this question of interracial marriage on?
DELLINGER: Well, you know, they had wanted to delay it until the issue of Brown and school desegregation had run its course. And by 1967, we had had the passage of the '64 Civil Rights Act. And the '65 Voting Rights Act. And we were down to 16 states banning interracial marriage. And then the court was willing to act even though the outcome, legally, was inevitable after the Brown decision, a dozen years earlier. And I think you see the same pattern here, that really the gay marriage case was decided as a matter of logic a dozen years ago, in 2003, when the Supreme Court in Lawrence against Texas struck down the laws that made homosexual acts a crime. The court took that on when 13 states still criminalized that activity but they were unwilling to take on gay marriage, even as recently as 2013, when more than 40 states still banned gay marriage. But now it's moving so fast that by the time the Supreme Court revisits the issue of gay marriage you will have a majority of states, and a clear majority of the people of the United States, living in states that permit gay marriage.
BLOCK: Does that accelerated pace play a role here? In other words, the states that do allow same-sex marriage - the oldest state, Massachusetts, it's only allowed same-sex marriage for the last decade. So would the court be less likely to rule on an issue that is so fresh?
DELLINGER: You know, this issue may seem fresh but it's moved so fast. There's a concept called the normative power of the actual. That is, what is seems right. And, I think, what the court is doing is letting more and more of the country get accustomed to the idea of gay marriage. The court knows where it's going on gay marriage and, in some senses, known it for a dozen years. It's a question of timing. By waiting until more of the country has experienced their friends and neighbors being married and nothing bad happened, the less the court would provoke a backlash. And I think it does, and not inappropriately, influence the court.
BLOCK: Walter Dellinger. He's former acting solicitor general in the Clinton administration. Mr. Dellinger, thanks so much.
DELLINGER: Thank you.
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