THE RIGHT TO MARRY: CIVIL RIGHTS LAWYERING’S INFLUENCE IN LOVING V. VIRGINIA (1967) AND THE QUESTION OF JUDICIAL ACTIVISM
Peters, Brooke O.
Peters, Brooke O.
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Abstract
Loving v. Virginia (1967) is a civil rights era Supreme Court case that made anti-miscegenation (anti-interracial marriage) laws unconstitutional across the United States. Laws that sound inconceivable to many modern Americans were once common state statutes for over 150 years. As laws and opinions surrounding civil rights changed over the 19th and 20th centuries, some states abandoned their anti-miscegenation statutes. However, at the time of the Supreme Court’s ruling in Loving, almost one-third of US states still had some form of anti-miscegenation laws on their books. Despite many states repealing their anti-miscegenation statutes without judicial intervention, there was certainly no consensus on whether interracial marriage was socially acceptable across the country. However, the Supreme Court’s unanimous decision in Loving was an important step toward establishing a broader right to marriage – setting up the 2015 landmark case that legalized same-sex marriage.
The Supreme Court is, by nature, the most passive of the United States’ three branches of government. The nation’s founders created the Court in such a way that it would avoid the prejudices of ever-changing politics; the Justices serve lifetime appointments, they undergo a strenuous bipartisan confirmation process by the Senate, and they are loyal to the Constitution itself, not to a political party. Throughout its history, however, the Court has been accused of judicial activism – using court cases to bypass the other, democratically elected, branches to create new policy. The question of whether the Court engages in judicial policymaking, and, if so, in what ways it does so, is an ongoing debate. In “The Right to Marry,” I assess how the Loving decision was decided among a changing legal environment and how and why, taken together with similar cases that expanded the scope of the Fourteenth Amendment, the case brought charges of judicial activism.
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Submitted to the Department of History of the University of Kansas in partial fulfillment of the requirements for departmental honors
Date
2025-04-24
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Department of History, University of Kansas