If Obergefell vs Hodges Falls, Loving vs Virginia could be next

The two cases are largely based on the same idea that the 14th amendment guarantees the right to marriage and equal treatment

In Loving v. Virginia, the Supreme Court held that marriage is a fundamental constitutional right. At the time, the state of Virginia enforced an “Anti-Miscegenation” law, which denied the right to marry to couples on the basis of race. Virginia argued that “equal application” applied, meaning that a black person was “equal” because they could marry another black person, and the same for a white person, and claimed there was no unequal treatment because both black and white people faced the same penalties for an illegal interracial marriage.

The Court rejected this reasoning, finding that because race was the determining factor in whether a marriage was legal, the law violated the Equal Protection Clause of the Fourteenth Amendment. The Court also held that denying a fundamental right on the arbitrary basis of race violated the Due Process Clause of the Fourteenth Amendment.

Obergefell v. Hodges is a closely related ruling, except the question was discrimination based on sex rather than race. In fact, the Court in Obergefell noted that it would be impossible to uphold same-sex marriage bans without disregarding Loving v. Virginia entirely. Any ruling overturning Obergefell would therefore put Loving itself at risk.

The dissents in Obergefell are worth examining. There are four, one from each dissenting justice, each advancing different arguments. Justice Clarence Thomas disputes the concept of substantive due process, the same legal principle applied in Loving v. Virginia. Under his reasoning, it could be constitutionally permissible for a state to ban his own interracial marriage.

Justice Samuel Alito, in his dissent, argues that the Due Process Clause should protect only those rights “deeply rooted in this Nation’s history.” Was interracial marriage “deeply rooted” in 1967, when Loving was decided? Given the Court’s recent fixation on “historical balancing,” it’s difficult to imagine them objectively concluding that Loving is constitutional under such logic.

Any decision that narrows Obergefell inevitably jeopardizes Loving as well. For that reason, the Supreme Court should deny certiorari in Kim Davis’s request to overturn Obergefell.

Article Photo By Ted Eytan - https://www.flickr.com/photos/taedc/18588276403/, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=41256464