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CIVICS LITERACY INITIATIVE

“STRING BEAN” AND RICHARD, JAMES AND JOHN:

CIVIL RIGHTS AND THE FREEDOM TO MARRY

CIVIL RIGHTS, THE 14TH AMENDMENT, AND THE FREEDOM TO MARRY

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“STRING BEAN” AND RICHARD, JAMES AND JOHN: CIVIL RIGHTS AND THE FREEDOM TO MARRY

This is “My Constitution,” a podcast from the Center for C-SPAN Scholarship & Engagement at Purdue University. In this episode, we’ll discuss civil rights, the Fourteenth Amendment, and the freedom to marry.

On April 10, 1967, Attorney Bernard Cohen stood before the justices of the Supreme Court in Washington, DC.

No matter how we articulate this, no matter which theory of the Due Process Clause, or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, “Mr. Cohen, tell the Court, I love my wife, and it is just unfair that I can't live with her in Virginia.”

Friendship grew into love for Richard Loving and Mildred Jeter. Residents of Caroline County, Virginia, they eventually decided to get married in Washington, DC, in June, 1958. Following their return to Virginia, they lived with Mildred’s parents, and hung their marriage license on their bedroom wall. A month later, the newly-married couple were in bed when a small group, led by the county sheriff, entered their home at two in the morning. Arrested for violating Virginia law, they were taken to the county jail in Bowling Green.

When they applied for a marriage license, Mildred used the term Indian to identify herself. Richard was listed as White. Virginia law prohibited interracial marriage, and their return to Virginia, as husband and wife, was enough to trigger their arrest. State law made it a felony for married interracial couples to reside together, even if they were married outside the state. The minimum penalty for violating the Virginia law was one year in the state penitentiary. The maximum was five years. Washington Post reporter Patricia Sullivan takes up our story:

They pled guilty to the charges, and were told that they could either spend a year in jail or, you know, get out of the state for 25 years.

More than fifty years later, another love story played out in Ohio. This time between a terminally ill man, John Arthur, and his partner, James Obergefell.

I, simply spur of the moment, asked him to marry me, and he was in at-home hospice care at that point, completely bedridden, and we made it happen. We couldn't marry at home in Ohio because of a constitutional amendment, so we chartered a medical jet and flew to Baltimore, where we got married on the tarmac.

John Arthur, who had been diagnosed with ALS, died three months later. Under Ohio law, Obergefell was not allowed to list himself as Arthur’s spouse on the death certificate. These two cases both made it to the Supreme Court.

The Loving’s case, almost a decade after they were married, is known as Loving v. Virginia. James Obergefell got his day in the nation’s highest court in 2015 in the case Obergefell v. Hodges.

Before we go further, let’s dip into our Constitution one more time, looking at the Fourteenth Amendment, which was ratified three years after the last shot had been fired in the Civil War. The Fourteenth Amendment is divided into five sections. The first two are most important to our story. Section 1 of the amendment is the best known. In declaring “All persons born or naturalized in the United States” to be citizens, it overturned the Supreme Court’s 1857 Dred Scott decision. That case declared that Blacks could not be citizens. In addition, Section 1 of the amendment restricts the ability of the states to interfere with civil liberties and civil rights. The second section of the Fourteenth Amendment uproots the Three-fifths Clause, which we discussed in the second podcast in this series. This part of the amendment also includes a provision that penalizes jurisdictions that restrict the voting rights of adult male citizens.

Let’s return to Section 1 of the Fourteenth Amendment, the Due Process Clause and the Equal Protection Clause. The Due Process Clause is an old friend to listeners of this series. Through a process called incorporation, the U.S. Supreme Court has applied most of the Bill of Rights to the states. The clause has also been used to protect what the Court sees as fundamental rights not explicitly mentioned in the Constitution, such as the right to marry.

The aim of the Equal Protection Clause is to address discrimination. Discrimination is defined as “the practice of unfairly treating a person or group differently from other people or groups of people.” But which persons or groups are covered by the Equal Protection Clause? One is discrimination based on race. Race, in this context, is broadly defined to include Blacks, Asians, Native Americans, Hispanics, and Whites. Two of the most famous Supreme Court cases on race are Plessy v. Ferguson in 1896 and Brown v. Board of Education decided by the Court in 1954.

In Plessy, the Court upheld the right to allow railway carriages to be segregated. By a vote of 7 to 1, the justices declared that “separate but equal” facilities did not violate the Constitution. The lone dissenter, Justice John Marshall Harlan, took the position that Louisiana’s law violated the Equal Protection Clause. For Justice Harlan, a tobacco-chewing former slave-owner from Kentucky, the intent of the Louisiana law was crystal clear—that it wasn’t to exclude White people from railroad cars occupied by Blacks, but to exclude Blacks from cars that were occupied by Whites. Most famously, his dissent included this phrase, “Our Constitution is color blind and neither knows nor tolerates classes among citizens.”

Fifty-eight years later, the Court, led by former California Governor Earl Warren, reversed course in Brown v. Board of Education. Utilizing the Fourteenth Amendment’s Equal Protection Clause, the Court struck down the “separate but equal” doctrine in the area of public education. For a unanimous Court, Chief Justice Warren held that, “Separate educational facilities are inherently unequal.” In addition to race, the Equal Protection Clause also covers discrimination based on other categories—an individual’s immigration status, their gender and sexual orientation, national origin, and whether an individual’s parents were married.

A case that illustrates the Court’s work in addressing the issue of gender discrimination is United States v. Virginia from 1996. Here’s the story. In response to a decision by a lower court, the state-run, male-only, Virginia Military Institute, or VMI, established a female version of itself. It was called the Virginia Women’s Institute for Leadership, or VWIL, and it was based at nearby Mary Baldwin College. In a blow to supporters of single-sex education at VMI, the U.S. Supreme Court held that Virginia had violated the Equal Protection Clause. Here’s Justice Ruth Bader Ginsburg reading the opinion from the bench:

But overall the lower courts’ concluding—the schools were sufficiently comparable to meet the demand of equal protection. We reverse that determination.

Justice Ginsburg was joined by the Court’s liberals and a number of conservative justices, including Justice Sandra Day O’Connor, who was the first woman appointed to the Court. Now, back to Richard and Mildred and James and John.

Early in the Loving’s journey up the judicial ladder, Caroline County Circuit Court judge, Leon Bazile discussed interracial marriage in these terms. Here he is quoted by Virginia Tech history Professor Peter Wallenstein:

‘Almighty God created the races white, black, yellow, red and Malay, and he placed them on separate continents. And but for the interference with his arrangements, there could be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.’

On a number of occasions in this series, notably the eighth and ninth podcasts, we have introduced you to oral argument at the U.S. Supreme Court. The Loving’s case was in April, 1967. R.D. McIlwaine argued the case for the State of Virginia:

It is clear from the most recent available evidence on the psycho-sociological aspect of this question, that inter-married families are subjected to much greater pressures and problems than are those of the intra-married, and that the state’s prohibition of interracial marriage, for this reason, stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage, or the prescription of minimum ages at which people may marry, and the prevention of the marriage of people who are mentally incompetent.

In contrast, Bernard Cohen, one of the attorneys arguing on behalf of the Lovings, told the justices that if the writers of the Fourteenth Amendment wanted to restrict marriage, they would have made it clear.

The language was broad, the language was sweeping, the language meant to include equal protection for Negroes, that was at the very heart of it, and that equal protection included the right to marry, as any other human being had the right to marry subject to only the same limitations.

Two months later, the Court issued its decision. It said that Virginia’s law was rooted in simple racial discrimination, and that it violated both the Fourteenth Amendment’s Due Process and Equal Protection clauses. Chief Justice Earl Warren wrote, “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state.” Again, here’s Professor Wallenstein:

When the court handed down that ruling, 15 states plus Virginia still had such laws on the books. It was still a crime, by some definition of interracial marriage, in every one of those states. Now, suddenly, when the Court rules, it's no longer a crime anywhere. It's just, not just the Lovings who are free to come home, it's any other couple, no matter what their racial identities, no matter where they live, they can now get married; they can now live anywhere; they can now move anywhere. But it's not just the crime that goes away. It's more than that. The Court went further and threw out all the related laws. Now Virginia had to recognize their marriage. Of course, they were married. Now all the couples who had sought marriage licenses but had been turned away could go back.

And just as it had in the Loving case, the Court held that the Fourteenth Amendment protected the right of same-sex couples to marry in Obergefell v. Hodges in 2015. In that case, Justice Anthony Kennedy described marriage as a fundamental right. His opinion, which included a reference to the Loving case, was anchored in the Fourteenth Amendment’s Due Process and Equal Protection clauses. The Court’s decision was announced on June 26, 2015. Hundreds of activists swarmed in front of the Court across the street from the Capitol. (singing) and James Obergefell addressed the crowd.

I know in my heart that John is with me today. That man cared for and loved me for 21 years, through thick and thin. Today's ruling from the Supreme Court affirms what millions across this country already know to be true in our hearts: Our love is equal. That the four words etched onto the front of the Supreme Court, “Equal Justice Under Law,” apply to us, too.

Not everyone was happy with the Court’s decision. Here, attorney Kellie Fiedorek of the Alliance Defending Freedom highlights her perspective that the Court should have left this decision to the political process:

We know that the freedom to democratically address the most pressing issues of our day is the heart of liberty. And today, five justices stole that freedom, the freedom to democratically debate and discuss the most pressing social issues of our time. They stole that from every single one of us.

In response to this argument, Justice Kennedy invoked the words of Justice Robert Jackson, “Fundamental rights may not be submitted to a vote; they depend on the outcome of no election.”

Before we close, let’s return to Caroline County, Virginia. Our childhood tales often end in the words, “And they lived happily ever after.” For the Lovings, “ever after” was only eight more years. Richard Loving died in 1975, killed by a drunk driver. Mildred died many years later, in 2008. She never remarried.

Further information on some of the issues discussed in this program, including questions to ponder, our sources, and additional clips from the C-SPAN Archives, can be found on the website of the Center for C-SPAN Scholarship & Engagement. The address is cla.purdue.edu/cspan. The Center is affiliated with the Brian Lamb School of Communication at Purdue University.

PODCAST GOAL

To acquaint the student with civil rights.

Note

In the podcast, we focused on the first two sections of the Fourteenth Amendment. The other sections of this important amendment address the following issues: Section 3 declares that those who swore an oath to the United States, yet sided with the Southern States, were not allowed to serve in government or the military without the approval of two-thirds of both houses of Congress. The payment of Confederate debts, and claims for reimbursement by owners of emancipated slaves, were declared illegal in Section 4. Section 5 gave Congress the “power to enforce” the “provisions” of the amendment.



 

QUESTIONS TO PONDER

  1. The Declaration of Independence, discussed in the first podcast in this series, includes the phrase “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Do you think Jefferson’s words have any relevance for cases such as the Lovings' and James Obergefell’s?
  1. In this podcast, we spend some time discussing the Fourteenth Amendment. The Fourteenth Amendment also plays an important role in a number of the other podcasts in this series. After you’ve completed this series, describe the role the Fourteenth Amendment has played in protecting civil liberties and civil rights in the United States? Additional information on this topic can be found in the “Additional Materials" section of this document. 
  1. What is your reaction to the Court’s decision in United States v. Virginia? What arguments can be made in favor of single-sex education? Additional information on this topic can be found in the “Supreme Court Cases” section of this document. See, in particular, the dissent written by Justice Antonin Scalia. 
  1. In his opinion for the Court in Obergefell v. Hodges, Justice Anthony Kennedy invoked the words of Justice Robert Jackson.  That part of Jackson’s opinion in West Virginia State Board of Education v. Barnette (1943) reads as follows: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted.”  What do you think of Jackson’s argument? 

OUR SOURCES

The 14th Amendment of the U.S. Constitution. (n.d.). National Constitution Center. https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv

Belpedio, J. R. (n.d.). John Marshall Harlan I. The Free Speech Center. https://www.mtsu.edu/first-amendment/article/1335/john-marshall-harlan-i

Benedict, M. L. (2018, July). History milestone: 150 years of the Fourteenth Amendment. Origins: Current Events in Historical Perspective. http://origins.osu.edu/milestones/july-2018-150-years-fourteenth-amendment

Brown v. Board: When the Supreme Court ruled against segregation. (2019, May 17). National Constitution Center. https://constitutioncenter.org/blog/on-this-day-the-supreme-court-rules-against-segregation

Chapman, N. S., & Yoshino, K. (n.d.). The Fourteenth Amendment Due Process Clause. National Constitution Center. https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701

Chappell, B. (2015, June 26). Supreme Court declares same-sex marriage legal in all 50 states. NPR. https://www.npr.org/sections/thetwo-way/2015/06/26/417717613/supreme-court-rules-all-states-must-allow-same-sex-marriages

Epps, G. (2018, July 10). The struggle over the meaning of the 14th Amendment continues. The Atlantic. https://www.theatlantic.com/ideas/archive/2018/07/the-struggle-over-the-meaning-of-the-14th-amendment-continues/564722/

Family relationships. (n.d.). Legal Information Institute. https://www.law.cornell.edu/constiution-conan/amendment-14/section-1/family-relationships

Fiorina, M. P., Peterson P. E., Johnson, B., & Mayer, W. G. (2011). The new American democracy (7th ed., pp. 494-524). New York City, NY: Pearson.

Fitzpatrick, B.T., & Shaw, T.M. (n.d.). The Equal Protection Clause. National Constitution Center.

https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/702

History of law: The Fourteenth Amendment. (n.d.). Tulane University Law School. https://employment.law.tulane.edu/articles/history-of-law-the-fourteenth-amendment

Jacobs, S. (2017, June 11). 50 years later, the couple at the heart of Loving v. Virginia still stirs controversy. WGBH. https://www.wgbh.org/news/2017/06/11/news/50-years-later-couple-heart-loving-v-virginia-still-stirs-controversy

John M. Harlan. (n.d.). Oyez. https://www.oyez.org/justices/john_m_harlan

Klein, L. A. (2017, May 03). The importance of law day and the 14th Amendment. ABA American Bar Association. https://www.americanbar.org/news/abanews/aba-news-archives/2017/05/the_importance_ofla/

Landmark legislation: Thirteenth, Fourteenth, & Fifteenth Amendments. (n.d.). United States Senate. https://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm

Linder, D. (2000). Justice John Marshall Harlan. Exploring Constitutional Law. http://law2.umkc.edu/faculty/projects/ftrials/shipp/harlan.html

Loving v. Virginia, 388 U.S. 1 (1967). (n.d.). JUSTIA US Supreme Court. https://supreme.justia.com/cases/federal/us/388/1/#tab-opinion-1946731

Loving v. Virginia. (n.d.). Oyez. https://www.oyez.org/cases/1966/395

McBride, A. (2016, December). The Supreme Court. The first hundred years. Landmark cases. Plessy v. Ferguson (1896). PBS. https://www.thirteen.org/wnet/supremecourt/antebellum/landmark_plessy.html

Monk, L. R. (2013). Dred Scott v. Sanford. Constitution USA with Peter Sagal. https://www.pbs.org/tpt/constitution-usa-peter-sagal/equality/dred-scott-v-sandford/

Obergefell v. Hodges. (n.d.). Oyez. https://www.oyez.org/cases/2014/14-556

O'Brien, D. M. (2017). Constitutional law and politics: Civil rights and civil liberties (10th ed.). New York City, NY: W. W. Norton & Company.

On this day: Supreme Court rejects anti-interracial marriage laws. (2019, June 12). National Constitution Center. https://constitutioncenter.org/blog/today-in-supreme-court-history-loving-v-virginia

Peralta, E. (2013, June 26). Court overturns DOMA, sidesteps broad gay marriage ruling. NPR. https://www.npr.org/sections/thetwo-way/2013/06/26/195857796/supreme-court-strikes-down-defense-of-marriage-act

Peñaloza, M. (2017, June 12). 'Illicit cohabitation': Listen to 6 stunning moments from Loving V. Virginia. NPR. https://www.npr.org/2017/06/12/532123349/illicit-cohabitation-listen-to-6-stunning-moments-from-loving-v-virginia

Pinsker, M. (2017, June 14). The history behind Loving v. Virginia. National Constitution Center. https://constitutioncenter.org/blog/the-history-behind-loving-v.-virginia

Primary documents in American history. (2018, June 27). Library of Congress. https://www.loc.gov/rr//program/bib/ourdocs/14thamendment.html

Schemmer, C. (2017, June 09). Historic marker on Loving case to be dedicated Monday. Fredericksburg.com. https://www.fredericksburg.com/news/local/historic-marker-on-loving-case-to-be-dedicated-monday/article_dc5bcd8e-ff75-5e3a-b474-33103a0c3abf.html

Totenberg, N. (2015, June 27). In same-sex marriage decision, Supreme Court bitterly divided. NPR. https://www.npr.org/2015/06/27/418011737/in-same-sex-marriage-decision-supreme-court-bitterly-divided

Tupponce, J. (2016, November 14). The arc of Loving. Richmondmag https://richmondmagazine.com/news/features/the-arc-of-loving/

United States v. Virginia, 518 U.S. 515 (1996). (n.d.). JUSTIA US Supreme Court. https://supreme.justia.com/cases/federal/us/518/515/

United States v. Virginia. (n.d.). Oyez. https://www.oyez.org/cases/1995/94-1941

United States v. Windsor. (n.d.). Oyez. https://www.oyez.org/cases/2012/12-307

Wallenfeldt, J. (2009, April 14). Fourteenth Amendment. Encyclopaedia Britannica https://www.britannica.com/topic/Fourteenth-Amendment

Wallenstein, P. (2014). Race, sex, and the freedom to marry: Loving v. Virginia (pp. 75-154). Lawrence, KS, KS: University Press of Kansas.

UNITED STATES SUPREME COURT CASES

Brown v. Board of Education of Topeka (1954) -- https://www.oyez.org/cases/1940-1955/347us483. This famous school de-segregation case overturned the “separate but equal” doctrine in public education. This link will take you to a discussion of the case and to Chief Justice Earl Warren’s unanimous opinion.

Craig v. Boren (1976) -- https://www.oyez.org/cases/1976/75-628. Craig focused on a claim that an Oklahoma law prohibiting the sale of 3.2% beer to men under twenty-one, while allowing the sale of the same beer to women as young as eighteen, was unconstitutional. The link will take you to the Court’s opinions, a discussion of the case, and to Justice William J. Brennan Jr.’s brief bench announcement.

Dred Scott v. Sandford (1857) – https://www.oyez.org/cases/1850-1900/60us393. In declaring “All persons born or naturalized in the United States” to be citizens, the Fourteenth Amendment overturned the Supreme Court’s 1857 decision in this notable case. In Dred Scott, the Court declared that blacks could not be citizens.

Loving v. Virginia (1967) -- https://www.oyez.org/cases/1966/395. One of the cases at the heart of this podcast, the Court took the position that Virginia’s law against interracial-marriage violated both the Fourteenth Amendment’s Due Process and Equal Protection clauses. In addition to reading a little about the case, the Oyez website will take you inside the Court for oral argument, and to the Court’s opinion penned by Chief Justice Warren.

Obergefell v. Hodges (2015) --- https://www.oyez.org/cases/2014/14-556. This link includes a discussion of the case, the legal questions before the Court, oral argument, announcements from the bench, and the Court’s written opinions.

Plessy v. Ferguson (1896) -- https://www.oyez.org/cases/1850-1900/163us537. In Plessy, the Court in a 7-1 decision upheld the constitutionality of segregated railway carriages on the grounds that “separate but equal” facilities did not violate the Constitution. The link takes you to a discussion of the case and to the Court’s opinions. The most famous opinion in the case is Justice Harlan’s dissenting opinion that includes the sentence, “Our Constitution is color blind and neither knows nor tolerates classes among citizens.”

United States v. Virginia (1996) -- https://www.oyez.org/cases/1995/94-1941. This case focuses on single-sex education and the admission of women to the Virginia Military Institute. The Oyez link will take you to an analysis of the case, the oral argument, announcement from the bench, and the Court’s opinions.

United States v. Windsor (2013) -- https://www.oyez.org/cases/2012/12-307. Another case involving same-sex marriage, Windsor focuses on the federal Defense of Marriage Act (DOMA). The link will take you into the Court to hear oral argument and to hear bench announcements from Justice Anthony Kennedy and Justice Antonin Scalia. A description of the case, and the Court’s opinions, can also be found if you click on the above link.

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