Justice Alito’s Dissent in Loving v. Virginia

INTRODUCTIONMarriage is an institution both sacred and civil. Couples decide to get married for a variety of reasons. Some marry as a religious sacrament. Others get married to secure the bundle of rights conferred upon married couples by federal, state, local, and foreign governments. Some couples get married because of the social acceptance afforded by friends, family, and community to married couples. Some couples get married to express their love and commitment to each other. Most couples get married for multiple reasons, including some or all of the above.1 Whatever the reason or reasons, the marriage proposal, its acceptance, and the ceremony itself are generally joyous events.A couple's decision to marry becomes less joyous when government officials prohibit the marriage or refuse to recognize its legitimacy. State governments regulate who may marry whom as a civil matter. They enact restrictions, for example, setting minimum age requirements. Historically, most states imposed race restrictions, generally criminalizing interracial marriage.2 In 1883, in Pace v. Alabama, the U.S. Supreme Court held that such laws did not violate the Equal Protection Clause because neither black people nor white people could marry across racial boundaries and, thus, both races were treated equally. As of this writing, many states impose gender restrictions, refusing to allow or recognize same-sex marriages as valid civil marriages.In the context of race and gender restrictions, courts have played a critical role in bringing greater equality to America's marriage laws. The stories of three couples-Sylvester Davis and Andrea Perez; Richard Loving and Mildred Jeter; and Edith Windsor and Thea Spyer-illustrate this phenomenon. Los Angeles residents Sylvester Davis andAndrea Perez were in love and sought to make their relationship permanent through marriage. Unfortunately, in the 1940s California maintained an intricate anti-miscegenation regime that proscribed marriages across defined racial lines.3 Because the State classified Sylvester Davis as "a Negro male" and Andrea Perez as "a white female," their marriage was illegal.4 Although their Catholic church did not prohibit their marriage, the State did. Dan Marshall, a lawyer and the President of the Catholic Interracial Council in Los Angeles, believed that the couple would make excellent plaintiffs to challenge California's miscegenation law.5Against the advice and admonitions of the Catholic Church hierarchy,6 Marshall persevered in the legal challenge. In its 1948 opinion in Perez v. Sharp, the California Supreme Court became the first state high court since Reconstruction to strike down an anti-miscegenation law as unconstitutional.7Anarrowly divided court held-in a 4-to-3 opinion-that California's law violated the Fourteenth Amendment to the U.S. Constitution. Writing for the majority, Justice Traynor concluded that marriage "is a fundamental right of free men" and the miscegenation laws impermissibly impinge the "liberty to marry."8Although the California ruling represented a sea change, it did little to benefit interracial couples living in states that continued to maintain miscegenation statutes, like the states of the former confederacy.9 In 1958, Richard Loving and Mildred Jeter lived in Virginia, a state whose supreme court had upheld its miscegenation law in 1955 and 1956.10 Because Richard was white and Mildred black, they had to leave their home state to get married. Upon returning from Washington, D.C. as a married couple, a grand jury indicted the Lovings for violating Virginia's miscegenation law.11 After pleading guilty, the Lovings were sentenced to one year in jail, which the trial judge suspended, conditioned upon the Lovings not returning to Virginia together for 25 years.12 The Lovings chal- lenged the constitutionality of the miscegenation law.13 In 1967, the U.S. Supreme Court in Loving v. Virginia unanimously rejected the 1883 equaltreatment reasoning of Pace v. …