Earlier this week, the Supreme Court heard two cases concerning the government’s ability to prohibit same-sex marriages. In Hollingsworth v. Perry, the Court considered the state of California’s ability to prohibit same-sex marriages under Proposition 8. In U.S. v. Windsor, the Court examined the federal government’s ability to act in a similar fashion, through the Defense of Marriage Act.
After reading through the parties’ briefs and the transcripts of the oral arguments for Perry and Windsor, however, I started wondering about the arguments that were advanced in Loving v. Virginia in support of anti-miscegenation laws. How exactly did the attorneys for Virginia try to defend the constitutionality of their doomed cause? The statutes at issue in Loving — criminal anti miscegenation statutes that had originally been legislated through an Act with the familiar-sounding title of “A Bill to Preserve the Integrity of the White Race” — seem indefensible in today’s world.
It turns out that the arguments made by the anti-miscegenation side in Loving were far more similar to the arguments made by the anti-gay marriage side in Perry and Windsor than I had expected, even given the cases’ obvious parallels. But the overlap is striking.
In the the Commonwealth Virginia’s Brief in Loving v. Virginia, and in the arguments advanced in the transcripts of the oral arguments before the Supreme Court, the Commonwealth did everything it could to distance itself from the anti-miscegenation law’s racist origins, and appealed to the Court to adhere to traditional notions of the separation of powers. Interracial marriage, the Commonwealth argued, is not a settled science, and the United States’ centuries-long history of permitting only intraracial marriages precluded the Court from establishing a new constitutional right to interracial marriages.
Below, I’ve included excerpts of the Commonwealth’s arguments in Loving, albeit with slight modifications to place the arguments in the modern context:
That there is a rational classification, setting so far as the [Californian] population is concerned, for preventing marriages between [two individual of the same sex], and that this is supported by the prevailing climate of scientific opinion.
We take the position that while there is evidence on both sides of this question, when such a situation exist it is for the legislature to draw its conclusions and that these conclusions are entitled to wait and unless it can be clearly said that there is no debatable question that a statute of this type cannot be declared unconstitutional.
We start with the proposition, on this connection, that it is the family which constitutes the structural element of society and that marriage is the legal basis upon which families are formed.
Consequently, this Court has held, in a numerous decisions over the years, that society is structured on the institution of marriage that it has more to do with a welfare and civilizations of the people that any other institutions and that out of the fruits of marriage spring relationships and responsibilities with which the state is necessarily required the deal.
Text writers and judicial writers agree that the state has a natural direct and vital interest in maximizing the number of successful marriages, which lead to stable homes and families and in minimizing those which do not.
So: given the existence of (1) scientific uncertainty; (2) historical traditions; and (3) the state’s vital interest in stable marriages, then the state necessarily is entitled to prohibit marriage between certain classes of citizens. This passage could have been transplanted, almost verbatim, into the briefs of Prop 8’s defenders.
[I]f the statute equally forbade [women] to marry [women], and [men] to marry [men], then in the opinion of the Framers that that was not a violation of equal protection or due process. In other words, the classification itself was not a violation.
To do the same with a similar passage from Plaintiff’s trial brief in Perry: “Because the [antimiscegenation laws] do not treat [whites] and [Negroes] differently, every federal court, and nearly every state court to address the issue has determined that this definition does not discriminate on the basis of [race].” Each race and sex has equal but opposite rights — so the classification based on race or sex is not a violation.
[H]istorically, the regulation of marital relationship was within the States and it was no intent on the Fourteenth Amendment to have any effect at all upon the States’ power over marriage. …
No one has been found who has analyzed this problem, who has suggested that it was the intention of the Framers of the Fourteenth Amendment or the understanding of the legislatures which ratified it that the Fourteenth Amendment affected to any degree the power of the States to forbid [same-sex] marriages. … Our reading of the legislative history is sufficient to lead us to believe that if anybody had suggested that it would have that affect, the entire first section of the Fourteenth Amendment would have been lost. No one, the proponents would never have suggested that the Fourteenth Amendment was going to abolish the power of the States to forbid [same-sex] marriage.
Won’t someone think of the originalists? As Justice Scalia phrased this same argument on Tuesday: “I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted? Some time after Baker, where we said it didn’t even raise a substantial Federal 8 question? When did the law become this?” If wasn’t unlawful in 1791 or 1868, how could the Court find it unlawful now?
It is clear from the most recent available evidence on the psycho-sociological aspect of this question that [same-sex] marriages are subjected to much greater pressures and problems then those of [traditional] marriages, and that the state’s prohibition on [same-sex] marriage for this reason stands on the same footing as the prohibition of polygamous marriage or incestuous marriage, the prescription of minimum ages at which people may marry, and the prevention of the marriage of people who are mentally incompetent.
Interracial and same-sex marriages are just like marriages in which parties lack the capacity to consent? This argument didn’t work in 1967, but the proponents of DOMA and Proposition 8 aren’t quitters — they’ll keep trying to make it stick.
It is a statistical study of over 5000 marriages which was aided by the computers of the Harvard Laboratory of Social Relations and the MIT Computation Center. This book has been given statistical form and basis to the proposition that from the psycho-sociological point of view, [same-sex] marriages are detrimental to the individual, to the family, and to society.
I do not say that the author of this book would advocate the prohibition of such marriages by law but we do say that he personally and clearly expresses his view as a social scientist that [same-sex] marriages are definitely undesirable that they hold no promise for a bright and happy future for mankind.
And that [same-sex] marriages bequeath to the progeny of those marriages, more psychological problems than parents have a right to bequeath to them.
As I say, it was published in 1964 and some of the statements which made in it based upon the statistical and demonstrable greater ratio of divorces and annulments in [same-sex] marriages than in [opposite] sex marriages.
Computers at Harvard, people. You can’t argue with this kind of compelling science.
[Counsel for Appellee]: [This scientist] has stated it as his opinion, and it is my conviction, that [same-sex marriages] are definitely wrong because they are most frequently, if not solely, entered into under the present day circumstances by people who have a rebellious attitude towards society, and who are statistically more likely to have a high degree of self-hatred, neurotic tendencies, immaturity and other detrimental psychological factors.
Justice : You don’t know what is causing and what is affecting, assuming the validity of these statics, I suppose one could be argued that one reason that [same-sex] marriages are sometimes unsuccessful is the existence of the kind of laws that are in issue here and the — and the societal stigma that these laws reflect, is that correct?
[Counsel for Appellee]: I think it is more the latter, that these inherent characteristics of [same-sex] marriages are reflected by the legislature’s decision to enact the laws we have.
The state’s interest in restricting marriage to the union of [one man and one woman] is born from centuries of tradition, and the collective experience of prior generations demonstrates that the best family environment for a child is to have one mother and one father.
[When a child is deprived of a mother and a father, and instead is raised by two members of the same sex,] it causes a child to have almost insuperable difficulties in identification, and that the problems which a child of [gay parents] faces are those which no child can come through without damage to himself.
Now if the state has an interest in marriage, if it has an interest in maximizing the number of stable marriages and in protecting the progeny of same-sex marriages from these problems, then clearly, there is scientific evidence available that this is so. It is not infrequent that the children of [same-sex] parents are referred to not merely as the children of [same-sex] parents, but as the victims of [gay] parents, as the mascots of [same-sex] parents.
Marriage is a vital human institution. And that’s why the government gets to decide which of its citizens are worthy to enter into such a union. Everyone knows gay people have Issues, so the government has every right to discourage them from acting out on their antisocial tendencies.
It’s not bigotry, it’s science.
And we have pointed out in further appendices to our brief … the recent statements of Professor Engel, professor of physiology at Chicago University in which he cautions against [same-sex] marriages on the ground, not of any specific finding of his own, but on the grounds that there has not been sufficient scientific investigation of this matter for a physiologist at least to determine the true effects, physiologically speaking of [same-sex] marriage, and therefore cautions against it.
And it is perfectly clear that the libraries are filled with criticisms and research studies of the cautionary nature which advised against it on a biological and genetic point of view.
Until the question is so firmly settled that no disagreement exists from any academic sources, then societal prejudices can be enshrined in the law. That’s how it is in America. We didn’t prohibit racial discrimination in our laws until there were no longer any racists in our universities.
And on that point, we have said that a — this Court has clearly said that a statute is not unconstitutional simply because it does not reach every facet of the evil with which it might conceivably deal. Would a statute, which did not undertake to regulate marriages between [infertile couples] or [couples that chose not to have children] be unconstitutional, simply because it didn’t regulate a relationship which [does not implicate the state’s primary interest in the marital relationship]? Now, the fact that there are only few [heterosexual marriages] who does not, you cannot inflate this minority group into constitutional significance when you’re talking about the Legislature dealing with the problems with which is it likely to be faced. The statute doesn’t have to apply with mathematical precision. It is sufficient if it reasonably deals with what the Legislature can reasonably apprehend to be an evil and with 99% of the population in [California], the danger of [same-sex] marriages so far as [California] is concerned is the danger of [heterosexual couples who choose not to get married], not the danger of the marriage of either [infertile heterosexual couples] or [heterosexual couples which do not intend to have children], which for all intents and purposes hardly exist, as one of the text writers which they have cited in their brief.
Look, the fact that we only banned gay marriages, but didn’t ban all those straight marriages that can’t produce children, is totally a coincidence, all right? It is too much work to ban all those other infertile couples, that’s all. It was a rational decision. It’s not because we think any less of gays or anything.
It will suffice to indicate by a brief survey of the materials that there are may arguably be sufficient evidence on both sides of the controversy to afford some basis for a legislature to take either side. [A] large number of studies and research projects have concluded that [same-sex marriage] is undesirable. [A dissenting opinion in a prior case considering this question] ha[s] cited to 10 authorities, one of which itself cited 10 additional authorities which would support a legislative finding that [same-sex marriage] is inimical to the public welfare.
[This opinion] says that these studies were frequently made by notable scientists and it reached that conclusion.
[The judge] then goes on and says the authorities’ finding that [same-sex parenting] has no harmful effects are also quite numerous and he considers that authorities available on that point, including the UNESCO statement and he concluded, “Nonetheless, there is still a considerable debate in comparatively recent studies as the desirability of [same-sex parenting]. Thus, even today, a legislature can find some scientific support for the position that [same-sex parenting] should be banned.” He then goes on to say that of course the sociological evidence is even more persuasive in support of a policy against [same-sex marriages].
And in the later portion of the article, he takes the position that even if the presumption of the validity of the statute should be reversed and the State were required to carry the burden of justifying the statute as a piece of social legislation, he says that the social harm argument would present a closer case.
He said, “But again, it is not likely that the State could prove that the social difficulties of the children of [same-sex] couples are exceptional enough to overcome a presumption against [gender] categorization.”
He is assuming here that the presumption is against the State.
Concrete evidence of the effect upon such children would be difficult to obtain particular since [same-sex marriage] is not widespread. The State then could not present any definite estimate of the potential of the evil it is attempting to prevent.
The State then could not present any definite estimate of the potential of the evil it is attempting to prevent. A State might produce a strong case by investing in research, but that would involve considerable time and expense
The reason the petitioners in Perry couldn’t produce any evidence to support their claims was simply because it is too expensive for the state to do this kind of research, and anyway there aren’t enough gays for the scientists to get a big enough sample size to study. And also, gay marriage is too new — newer than cellphones and the internet, even — so we shouldn’t force states to spend money on science just to prove what we already know from tradition.
If the presumption in favor of the legislation is permitted to prevail, then there is arguable evidence on both sides of this question and the Court is not justified in overturning the legislative determination on this point. If the presumption is against us, we say that despite the fact that this article would seem to indicate that the State couldn’t carry the burden, he said the particular difficulty would be in the absence of evidence of a sociological nature which we say is now at hand and which clearly shows that the State has a justifiable and overriding interest in preventing [same-sex] marriages.
Of course, we go fundamentally to the proposition that for over hundred [and fifty] years since the Fourteenth Amendment was adopted,  the majority of the States  have been exercising this power without any question being raised as to the authority of the States to exercise this power.
So you can’t reach the conclusion that this statute infringes, a right under the Fourteenth Amendment without examining evidence on behalf of the State to show that the infringement is a reasonable one, just as reasonable as far as we can determine, as far more evidence of the reasonableness of a ban against [same-sex] marriage than there is against polygamous or incest marriages so far as the scientific proposition is concern.
But I cannot conceive to this Court striking down the polygamy or incest statute on the basis of scientific evidence, and I submit that it would be no more appropriate for this Court to invalidate the [Proposition 8] on that basis.
As Scalia would put it: “there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.” (Or as Johnnie Cochran would put it: “if the sociologists do not all agree, then gay marriage can be prohibited constitutionally.”)
If Your Honor please, there are several decisions handed out by States which again point out the [animus against homosexuals] concerning these laws.
The Missouri laws bottomed on State v. Jackson which basically held that if the progeny of a [same-sex] marriage, married the progeny of a [same-sex] marriage, there’d be no further progeny. That’s a fundamentally ridiculous statement.
Maybe it wasn’t for those men in that day and age, but it certainly is now, and Georgia has an equally ridiculous basis for the laws. In Scott v. Georgia, they held that from the daily observances, they see that the offspring of such [same-sex] marriages are feminine.
So, let me see if I have this straight: (1) Interracial marriage will lead to the destruction of society because the children of such unions will be mules who are unable to reproduce, and also the children of such unions are feminine, and (2) Gay marriage will lead to the destruction of society because the children of such unions will all be gay and unable to naturally reproduce, and also the children of such unions are feminine.
As we view the matter, marriage is a status controlled by the states, and statutes prohibiting [same-sex marriage] or [same-sex parenting] in no way violate the Equal Protection clauses of the state and federal Constitutions. A state statute which prohibits intermarriage or cohabitation between members of [the same sex] we think falls squarely within the police power of the state, which has an interest in maintaining [marriage as a traditional institution] and in preventing the propagation of  children [by same-sex parents]. Such children have difficulty in being accepted by society, and there is no doubt that children in such a situation are burdened, as has been said in another connection, with ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ …
Inasmuch as we have already noted the higher rate of divorce among the intermarried, it is not proper to ask, ‘Shall we then add to the number of children who become the victims of their [same-sex] parents?’ If there is any possibility that this is likely to occur — and the evidence certainly points in that direction — it would seem that our obligation to children should tend to reduce the number of such marriages.
Because discrimination is okay when it protects children.
This judicial position has given rise to the of-repeated mandate that the courts can have no concern as to the expediency, the wisdom, or the necessity for the enactment of laws. As has been said, the courts do not sit to review the wisdom of legislative acts. It is not for the court to decide whether a law is needed and advisable in the general government of the people. Where the legislative purpose has been declared in plain and unmistakable language, it is not within the province of the court to interpose contrary views of what the public need demands, although as individuals the members of the court may hold convictions contrary to those of the legislature.
The basic principle already mentioned applies here with full force. The constitutionality of legislative acts is to be determined solely by reference to the limits imposed by the Constitution. The only question for the courts to decide is one of power, not of expediency or wisdom; and statutes will not be declared void simply because, in the opinion of the court, they are unwise.
For protection against unwise legislation within the limits of recognized legislative power, the people must look to the polls and not to the courts. It is very important to discern constantly that the scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.
Tl;dr, who cares if we can’t prove if there is a good reason for banning gay marriage or interracial marriage? Judicial activism is wrong.
Just as no individual needs to explain his desire to live, so it would seem to me that neither races of man nor religious or ethnic groups need offer apologies for their desire to perpetuate their [long-standing traditions and moral convictions]. I believe that the tendency to classify all persons who oppose [same-sex] marriage as ‘prejudiced’ is, in itself, a prejudice.
That’s right, it’s the supporters of marriage equality who are the true bigots.
It is my conviction that same-sex marriage is definitely inadvisable. It places a greater stress and strain upon marriage than is ordinarily true when persons of similar religious views are married. We need not guess about this. In every case of interfaith marriage that we have examined, the facts about the greater strains involved have come to the fore. The fact that divorce an separation rates are higher in these interfaith marriages serves also to support this view.
The statistical evidence incorporated in this study makes it clear that the ‘odds’ do not favor same-sex marriages, in that almost two to four times as many same-sex marriages as traditional marriages end in divorce, separation, or annulment. This is a highly significant fact. It is objective and utterly free from emotion-inducing factors. It ought, therefore, to be considered and weighed most carefully.
‘Objective and utterly free from emotion-inducing factors.’ I do not think those words mean what you think they mean.
It is difficult to comprehend how any other conclusion could have been reached. Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature. Upon it society may be said to be built, and out of its fruit spring social relations and social obligations and duties, with which government is necessarily required to deal. Moreover, under the Constitution the regulation and control of marital and family relationships are reserved to the State, and the regulation of the incidents of the marital relation involves the exercise by the States of powers of the most vital importance. The [California] statute here under attack reflects a policy which has been the law of those land for well over two centuries, and which is still the law in [forty-one] states. These laws have stood, compatibly, with the Fourteenth Amendment, though expressly attacked thereunder since that Amendment was adopted. Under such circumstances, it is clear that the challenged enactments infringe no constitutional right of the appellee. Counsel for appellee submit therefore that [Proposition 8] is not violative of the Fourteenth Amendment to the Constitution of the United States and that the judgment of the Supreme Court of [California] in the case at bar should be [reversed].
This is not about civil rights, or equality, or discrimination. This is about mawwiage, the most important relationship in life, which has more to do with the morals and civilization of a people than any other institution. And the gays don’t understand these kinds of things, that’s all.
In light of this uncertainty [regarding the desirability of same-sex unions], there are reasonable grounds for concern that [permitting same-sex marriages] would necessarily entail a significant risk of adverse consequences over time to the institution of marriage and the interests it has always served. Indeed, a large group of prominent scholars from all relevant academic fields recently expressed “deep concerns about the institutional consequences of [same-sex marriage] for marriage itself.” …
[Proposition 8] seeks to channel  procreative conduct into stable, enduring relationships, where that conduct is likely to further, rather than harm, society’s vital interests in responsible procreation and childrearing… [Proposition 8] thus plainly bears a close and direct relationship to society’s interest in increasing the likelihood that children will be born to and raised by… stable and enduring family units.
Oh wait, my bad. That one wasn’t from Loving, it’s from Perry.
And last, but not least:
[In debating the enactment of the Civil Rights Act of 1866,] Hon. L. H. Rousseau of Kentucky expressed the fear that under the proposal a minister might be arrested for refusing to solemnize marriages between whites and negroes.
Marriage equality: threatening religious freedoms since 1866.