ADF Legal Scholar on Why Loving v. Virginia Does Not Establish a Right to SSM


ADF Senior Vice President Jordan Lorence writes about his experience debating marriage at Stanford recently, and debunks a persistent false argument used to promote SSM:

Last week I participated in a discussion sponsored by the Federalist Society at Stanford Law School in California on redefining marriage to include same-sex couples, and its collision with the First Amendment rights of those who define marriage as one man and one woman only. We had a great discussion [... but] what I did not expect at Stanford was a debate on the relevancy of the 1967 Supreme Court decision striking down Virginia’s law banning interracial marriage, Loving v. Virginia.

Many who support redefining marriage to include same-sex couples are convinced that this case greatly supports their position. It does not. I have found that many people have not read the decision, or do not understand what the Supreme Court ruled in that case. The decision doesn’t help them. So it is a dreadfully flawed argument and a non sequitur to argue as many do that ”just as a ban on interracial marriage was unconstitutional, so a ban on same-sex marriage is unconstitutional.”

... The Virginia law only banned white people from having an interracial marriage. An African American man could marry a woman of Asian descent under the Virginia law struck down by the Supreme Court. That interracial marriage was OK because it did not include any white people. The obviously uneven application of the law based on race is why the Supreme Court struck it down. These despicable laws did not say, “whites can only marry whites, blacks can only marry blacks, Asians can only marry Asians,” etc., but many wrongly assume that is what those laws said.

... Race has not been a universally-accepted part of the definition of marriage. For example, not all states banned white people from having an interracial marriage. Some states, like Virginia, allowed whites to marry nonwhites for many decades before imposing a ban on whites marrying nonwhites. The existence of miscegenation laws is a sordid historical fact. The court decisions striking down those laws offer no principle of law that compels legalizing same-sex marriage.