In honor of Valentine’s Day, HBO airs a must-see documentary tonight about the triumph of right over wrong and the loving commitment of an interracial couple, Mildred and Richard Loving.
Mildred Loving died of pneumonia in 2008 at her home in Central Point, Virginia. As reporter Jocelyn Stewart wrote in an obituary in the Los Angeles Times, "For marrying the only man she loved, Mildred Loving paid a price: she was arrested, convicted and banished from her home state."
She and her now-deceased husband were the couple involved in the United States Supreme Court's 1967 decision, Loving v. The Commonwealth of Virginia. In that case, the court ruled unanimously that Virginia's 1924 law banning interracial marriage was unconstitutional.
Yet I will argue here that it is not far-fetched to wonder whether the current Supreme Court would reach the same conclusion in Loving were it on the court's docket anytime soon.
During the tenure of the Warren Court, the justices—for the first time—made the promise of America available to minorities, especially African-Americans. It did so in a litany of cases affirming desegregation plans and basic voting rights. The Burger and Rehnquist Courts whittled away at some of these broad decisions, but the tide really turned with the ascension of John Roberts as Chief Justice. Since he ascended to the Court, it has begun to pull the plug on the basic idea of equal opportunity for all. Two cases, one decided in 2007 and another decided in 2008, are prime examples of this trend.
In the waning days of the Court's 2007 term, the Court blew a hole through the very idea that children of different races might share the same classroom in the United States. That was the vision enunciated by Earl Warren in 1954 in Brown v. Board of Education. By a 5-4 vote in Community Schools v. Seattle School District Number 1, Chief Justice Roberts turned Brown on its head by electing to see the 14th Amendment's Equal Protection Clause—which was adopted for the express purpose of integrating Blacks more fully into society—as a tool for protecting white students from integration. He literally used the mantra of a color-blind Constitution to strike down voluntary school integration plans in Seattle and Louisville, Kentucky.
By interpreting Brown simply as forbidding government classification and separation on the grounds of race, Roberts paid scant attention to the shameful history of slavery. That history, in turn, gave rise to the marginalization and mistreatment of African Americans. This racial schism did not end with the stroke of a pen when the Court ruled in Brown that "separate educational facilities are inherently unequal." In his dissent in Community Schools, Justice Steven Breyer called Robert's reliance on Brown a "cruel distortion of history." So in the name of abiding by the 1954 landmark ruling, the Court effectively made a mockery of its spirit.
The second case is Crawford versus Marion County Election Board, decided in 2008. First, a little background. It's important to recall that the Warren Court in the 1950's and 1960's struck down literacy tests and poll taxes meant to deny blacks the chance to cast ballots in southern states.
This court is now moving in the opposite direction. By a 6-3 margin, the court upheld Indiana's voter ID law, which requires voters to present a government-issued photo identification at the polls. For those without a driver's license —mostly poor and minority members—the burden is considerable. The Indiana law's rationale was to prevent people from impersonating others at the polls, but even the majority opinion recognized that "the record contains no evidence of any such fraud actually occurring in Indiana at any time in its history." The more likely reason the law was enacted was that the Republican legislature sought a way to disenfranchise those who lean Democratic. In summary, then, the law risks putting a major barrier between voters—particularly minorities—and the ballot box to solve a problem that doesn't actually exist.
Why do I say that? The kind of fraud the Indiana Legislature was attempting to prevent involves an exceedingly irrational way to attempt to influence the outcome of an election. In order to impersonate even one voter, someone would have to know that a particular voter isn't planning to vote. Moreover, the impersonator would have to risk being identified as an impersonator by any of the poll workers who might know the absent voter. Add to the mix the fact that voter impersonation is a felony. Now why would any sane person risk going to prison to influence an election by one vote? In order to have any meaningful impact, the process here would have to be repeated over and over again. No wonder there's a little evidence of the existence of voter fraud.
With this background in mind, I ask you, "Is it completely irrational to consider the possibility that Virginia's anti-miscegenation statute might pass constitutional muster by a bare majority the current members of the nation's highest court?" Well, in truth, the answer is probably "Yes."
Still—unlike the case in 1967, when the vote was unanimous—it is conceivable that the Virginia law would be upheld by a few members of the Court. Ironically, I would hazard a guess that Clarence Thomas, usually a solid supporter of such state laws, wouldn't be one of those in support. The reason is that Justice Thomas is a direct beneficiary of Loving v. Virginia. He happens to be married to a Caucasian woman.
Roy Ulrich is a lecturer at the Goldman School of Public Policy at University of California at Berkeley.