Assignment 2: The Statutes
Sara Barboza
Dr. Joseph McCue
PAD 525 Constitutional and Administrative Law
October 18, 2015

INTRODUCTION
The word miscegenation comes from the Latin words miscere (to mix) and genus (type, family, or descent) and has been used to refer to cohabitation or intermarriage between racial groups. Regulated by state law, miscegenation was illegal in many states for decades. However, interracial marriage in the United States has been fully legal in all U.S. states since the 1967 Supreme Court decision, Loving v. Virginia, that decreed all state antimiscegenation laws unconstitutional. Many states, of course, had chosen to legalize interracial marriage much earlier. According to a May 14, 2012, Huffington Post article entitled “Interracial Marriage Statistics: Pew Report Finds Mixed-Race Marriage Rates Rising,” the 1980 Census (the first to collect data on interracial marriage) reported that 3% of all married couples were from different races. The number had risen to 8.4% (one in twelve couples) by 2010. Looking at marriages recorded in the years between 2008 and 2010, we find that 22% of newly-married couples in Western states were of different races or ethnicities, compared to 14% in the South, 13% in the Northeast, and 11% in the Midwest.
QUESTION 1: Analyze and evaluate each case independently by providing the following (about two paragraphs per case):
LOVING V. VIRGINIA CASE. 1. Facts of the case: In 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The two had gone to the District of Columbia to obtain a marriage license and returned to their home state of Virginia afterward. The couple was then charged with and convicted of inter-racial marriage later on they were confronted by police at their home. The police found their marriage certificate and used it as evidence that they had violated the state’s law by getting married out of state.
The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years). They both served their time of one year in prison then moved to Washington DC after release. At trial, the state of Virginia argued that the law did not violate the equal protection clause because it applied the same penalties to African Americans and whites. The law itself only applied to marriage between a white person and any person of another race. Therefore, under the VA law, any minority could marry another minority of a separate class.
2. Issues: Does the VA law that prevents marriages between people solely on the basis of racial classifications violate the Equal Protection and Due Process Clauses of the 14th Amendment? Was rational basis the proper standard of review by which to evaluate the constitutionality of the statutes? Were the Virginia miscegenation statutes constitutional under the Equal Protection Clause?
The mere fact that a statute is one of equal application does not mean that the statute is exempt from strict scrutiny review. The statutes were clearly drawn upon race-based distinctions. The legality of certain behavior turned on the races of the people engaging in it. Equal Protection requires, at least, that classifications based on race be subject to the “most rigid scrutiny.”
The Equal Protection Clause of the United States Constitution (Constitution) prohibits classifications drawn by any statute that constitutes arbitrary and invidious discrimination. The fact that Virginia bans only interracial marriages involving whites is proof that the miscegenation statutes exist for no purposes independent of those based on arbitrary and invidious racial discrimination.
Concurrence. Justice Potter Stewart (J. Stewart) argued it is not possible for a state law to be valid, which makes the criminality of an act depend upon the race of the actor.
Discussion. The key to this case is articulated in J. Stewart’s concurrence. The miscegenation statute was improper because it made the legal consequences of an action turn on the races of the persons participating in it.
3. Rule: On this date in 1967, the U.S. Supreme Court decided Loving v. Virginia.
That same year, on April 10, Virginia's constitutional system was argued, which prevented marriages between persons solely based on racial classifications. This provision was held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In June 1958, two residents of Virginia, Mildred Jeter, a Black woman, and Richard Loving, a white man, were married in the District of Columbia, which did not violate D.C. laws. Shortly after their marriage, the Lovings returned to Virginia and established their married residence in Caroline County.
In October 1958, the Circuit Court of Caroline County Grand Jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the state and not return to Virginia together for 25 years. In a unanimous decision, the court held that distinctions drawn according to race were generally “odious to a free people” and were subject to “the most rigid scrutiny” under the Equal Protection Clause.
The Virginia law, the court found in 1967, had no legitimate purpose “independent of invidious racial discrimination.” The court rejected the state's argument that the statute was legitimate because it applied equally to both Blacks and Whites and found that racial classifications were not subject to a “rational purpose” test under the Fourteenth Amendment.
The Supreme Court ruled unanimously today that states cannot outlaw marriages between whites and nonwhites. The opinion by Chief Justice Earl Warren was directed specifically at the antimiscegenation laws of Virginia, which had been challenged by Richard P. Loving, a white man, and his part-Negro, part-Indian wife, Mildred.
However, the wording was sufficiently broad and disapproving to leave no doubt that the antimiscegenation laws of 15 other states are also now void.
“We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race,” segregation laws to remain standing - those requiring separation of the races in marriage - Chief Justice Warren completed the process that he set in motion with his opinion in 1954 that declared segregation in public schools to be unconstitutional.
He rejected the argument by Virginia that the framers of the 14th Amendment had not intended to invalidate the many antimiscegenation laws in effect at that time. While history casts some light on the proper interpretation of the amendment, it is not conclusive, he said.
Chief Justice Warren rejected the reasoning that had prompted the Supreme Court to uphold antimiscegenation legislation once before, when it considered the Alabama statute in 1883. The Court held then that the law did not discriminate against Negroes, since whites could be equally punished for violating it.
In today's opinion the Court followed the theory of the earlier desegregation cases that racial classifications in state laws are constitutionally odious even if the punishments are even-handed. Virginia's “racial integrity law” was unusual in that it forbade whites to marry “colored persons,” but did not prohibit the union of Negroes and members of other races.
A “white person” was defined as one who “has no trace whatsoever of any blood other than Caucasian,” with the exception of a special saving clause for certain Indians, designed to protect the descendants of Pocahontas and John Rolfe.
In a footnote, Chief Justice Warren said that this quirk in the Virginia law does not save other antimiscengenation laws from being affected by today's ruling. The other states that have these laws are Alabama, Arkansas, Delaware, Florida, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and West Virginia.
MCLAUGHLIN V. FLORIDA CASE. 1. Facts of the case: In 1962, Dewey McLaughlin, a Miami Beach hotel porter originally from Honduras and Connie Hoffman, a Caucasian waitress, were an unmarried couple living together in a Miami Beach apartment located at 732 2nd Street. Their landlady, Dora Goodnick, had rented the apartment only to Hoffman and when she found out about McLaughlin, did not want the interracial unmarried couple living in the apartment. In an effort to get them out, Goodnick complained to the Miami Beach police that Hoffman's son was wandering the streets after midnight. Police investigated the matter and after the couple admitted they were unmarried and lived together, they was charged in Florida state court with the crime of a black man and a white woman habitually living in and occupying in the nighttime the same room. A jury trial resulted in a verdict of guilty, a sentence of thirty days in the county jail and a fine of $150 for each defendant.
Section 798.05 of Florida statutes read: "Any negro man and white woman, or any white man and negro woman, who are not married to each other, who shall habitually live in and occupy in the nighttime the same room shall each be punished by imprisonment not exceeding twelve months, or by fine not exceeding five hundred dollars."
This law was a part of the adultery and fornication laws of Florida. While all the other sections of this chapter required proof that sexual intercourse took place, sec 798.05 required only cohabitation. The law specifically prohibited a couple in which one is white and the other is black. It did not apply to any other racial groups or combinations. It was part of Florida's anti-miscegenation laws prohibiting marriage, cohabitation and extramarital sex between whites and blacks and only addressed relationships between whites and non-whites. Similar anti-miscegenation laws were enforced in many states into the 1960s, and by all Southern states until 1967, when all remaining state bans on interracial marriage between whites and non-whites were declared unconstitutional by the Supreme Court in Loving v. Virginia. 2. Issues: At issue in this case is the validity of a conviction under § 798.05 of the Florida statutes, F.S.A., providing that: “Any negro man and white woman, or any white man and negro woman, who are not married to each other, who shall habitually live in and occupy in the night-time the same room shall each be punished by imprisonment not exceeding twelve months, or by fine not exceeding five hundred dollars.”
Because the section applies only to a white person and a Negro who commit the specified acts, and because no couple other than one made up of a white and a Negro is subject to conviction upon proof of the elements comprising the offense it proscribes, we hold § 798.05 invalid as a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment.
Also of general application, proscribes fornication and authorizes a three-month jail sentence. The fourth section of the chapter, 798.04, makes criminal a white person and a Negro's living together in adultery or fornication. A one-year prison sentence is authorized. The conduct it reaches appears to be the same as is proscribed under the first two sections of the chapter.
Section 798.05, the section at issue in this case, applies only to a white person and a Negro who habitually occupy the same room at night-time. This offense, however, is distinguishable from the other sections of the chapter in that it is the only one which does not require proof of intercourse along with the other elements of the crime.
Appellants were charged with a violation of § 798.05. The elements of the offense as described by the trial judge are the (1) habitual occupation of a room at night, (2) by a Negro and a white person (3) who are not married. The State presented evidence going to each factor, appellants' constitutional contentions were overruled and the jury returned a verdict of guilty. Solely on the authority of Pace v. Alabama, 106 U. S. 583, the Florida Supreme Court affirmed and sustained the validity of § 798.05 as against appellants' claims that the section denied them equal protection of the laws guaranteed by the Fourteenth Amendment. We noted probable jurisdiction, 377 U. S. 914. We deal with the single issue of equal protection and on this basis set aside these convictions.
It is important to mention that issues involves a classification based on race and embodied in a criminal statute. In its analysis, the Court noted that classifications based on race are constitutionally suspect and subject to the most rigid scrutiny. Such classifications will only be upheld if they are necessary to the accomplishment of a legitimate state policy. Although each member of the interracial couple was subject to the same penalty under the law, the Court looked to whether or not the classifications drawn in the statute were reasonable in light of its purpose. The state argued that the purpose of the statute was to prevent breaches of basic concepts of sexual decency (that is, pre- or extramarital promiscuity). 3. Rule: In a unanimous 9-0 ruling, the Court struck down 798.05 on grounds that it violates the Fourteenth Amendment.
The Court also potentially opened the door to full legalization of interracial marriage by remarking that the 1883 Pace v. Alabama represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.
Justice Harlan's Concurrence: Justice Marshall Harlan concurred with the unanimous ruling, but expressed some frustration with the fact that Florida's blatantly discriminatory law banning interracial marriage was not directly addressed.
Justice Stewart's Concurrence: Justice Potter Stewart, joined by Justice William O. Douglas, joined in the 9-0 ruling but expressed firm disagreement in principle with its implicit statement that racially discriminatory laws might be constitutional under certain circumstances if they serve “some overriding statutory purpose.” “I think it is simply not possible,” Justice Stewart wrote, “for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.”
In a majority opinion authored by Justice Byron White, the U.S. Supreme Court ruled that a Florida law that punished interracial cohabitation more severely than cohabitation by individuals of the same race violated the Fourteenth Amendment equal protection clause. Appellants were convicted, fined, and imprisoned for violating this statute. The statute proscribed the following conduct: habitual occupation of a room at night by a Negro and a white person who are not married. No couple other than an interracial one (that is, black and white) could have been convicted under this statue. Moreover, there were no other statutory provisions that proscribed this sort of conduct for individuals of the same race. In fact, the appellants’ conduct would not have been illegal if they had both been white or both been black.
QUESTION 2: Compare and contrast both cases in regards to the Anti-Miscegenation Statutes.
As we mentioned, McLaughlin was the Supreme Court’s 1964 case that invalidated laws criminalizing interracial sex on equal protection grounds. In an article Ariela Dubler reminded us of the importance and significance of McLaughlin, pointing out that McLaughlin has been neglected in our collective memories of the Court’s jurisprudence of racial and sexual equality. It was not viewed as having its own significance, but rather was regarded as an intermediate step toward the invalidation of laws criminalizing or prohibiting interracial marriage. Loving was what the stakes were all about, and McLaughlin was merely a pit stop along the way. This understanding of McLaughlin is wrong, Dubler argues, because the case was really about the legitimate bounds of regulation of non-marital sex, and we do it a disservice if we understand it as only having had instrumental value as a stepping stone toward another goal: setting the legitimate bounds of the regulation of marriage.
By limiting the analytical category to race, Justice Stewart focuses the reader's attention on the rule of decision in race cases. In his view, the applicable rule of decision was stated in McLaughlin v. Florida. McLaughlin involved an appeal from a conviction under a Florida statute that made it a crime for “a white person and a Negro [to] habitually occupy the same room at nighttime.” Insofar as the state law was concerned, the Florida law involved in McLaughlin was identical to the Virginia law at issue in Loving. Both “ma[de] the criminality of an act depend upon the race of the actor.” The facts of the two cases, however, were different. The defendants in the Florida case, Mr. McLaughlin and Ms. Hoffman, were not husband and wife. The Lovings were married. For the majority in Loving, this distinction was important enough to warrant recognition of a separate analytical category: “the right to marry.” For Justice Stewart in Loving, the marital status of the parties was irrelevant, given his categorization of the case as a race-based equal protection claim. This raises an important question: What factors influenced the Court's characterization of the legal questions presented in Loving? The answer appears to reside in an ongoing debate within the Court concerning the appropriate standard of review for cases alleging discrimination “on the basis of race.” Unlike Justice Stewart, the majority in Loving was unwilling to hold that the Equal Protection Clause operates as a categorical negative on race-based laws. Following its traditional approach, the majority opinion by Chief Justice Warren stated that statutes containing racial classifications are subject to a “very heavy burden of justification.” Balancing is more like grocer's work (or Justice's) than characterization - the judge's job is to place competing rights and interests on a scale and weigh them against each other. Here the outcome is not determined at the outset, but depends on the relative strength of a multitude of factors. The Court thus entertained at least the theoretical possibility that a State might, in some future case, be able to make such a showing. Justice Stewart took a dim view of the Court's “balancing” approach, and castigated the majority for attempting to maintain flexibility on matter where he believed that there should have been a categorical rule.
In Loving, the Court's characterization has two primary effects. The most obvious one is that the “strength” of the right to marry weighs heavily in the “balance” struck against anti-miscegenation laws. Whatever interest a state might have been able to assert would pale in significance when compared to one of our most basic social institutions. The second effect was precedential. By recognizing a “right to marry” as an aspect of liberty under the Due Process Clause, the Court also made a jurisdictional point about family law. Henceforth, the Court would be willing, at least in theory, to develop substantive federal constraints on the family law powers of the States. Both of these effects illustrate another basic point about characterization: as a rational process, it necessarily involves consideration of the implications of the judicial task. Categorization is often balancing; it requires deciding which category to put things in, and that is often done by noticing the consequences and deciding (often subconsciously) if they are tolerable, better, or worse than certain alternatives. In Loving, the majority used both characterization and balancing as explicit devices to make several points about American constitutional law, the legal and moral repugnance of racial discrimination, and the importance of the marriage relationship. Those points have become the legacy of Loving.
On the surface, Loving and McLaughlin v. Florida appear to have much in common with Griswold and Eisenstadt v. Baird. Both Loving and Griswold involved married couples. Like Eisenstadt, McLaughlin was a case involving unmarried persons. But the grim reality of racial politics made it clear that the purpose of both statutes was to criminalize conduct that would increase the likelihood of a sexual relationship. Sexual contact was not a necessary element of the “crimes” alleged to have been committed in either Loving or McLaughlin. Neither case would, therefore, seem to add much weight to the Griswold-Eisenstadt line of precedent.
McLaughlin essentially rejected the court’s previous ruling in Pace v. Alabama, 106 U.S. 583 (1883), which had upheld a statute prohibiting adultery between mixed-race couples. The court ruled in McLaughlin that “Pace represents a limited view of the Equal Protection Clause… Judicial inquiry under the Equal Protection Clause…does not end with a showing of equal application among the members of the class defined by the legislation.” Loving “reject[ed] the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of invidious racial discriminations.” Because these cases dealing with racial discrimination rejected equal application as an adequate means to justify racial classifications under Equal Protection doctrine and as Gay and Lesbian Advocates and Defenders (GLAD) argued, equal application must also be rejected as an adequate means to justify classifications based on gender or sexual orientation under Equal Protection doctrine.
QUESTION 3: Analyze how this statute could have influenced Brown v. Board of Education, 347 U.S. 483 (1954) and the Fourteenth Amendment.
In recent years the fourteenth amendment has been given ever widening application in decisions of the United States Supreme Court. In areas once deemed the private preserves of the state legislatures, the court has found violations of the sacred precepts of “equal protection” and “due process”. The most widely known decision and that having had the widest repercussions, of course, was the case of Brown v. Board of Education, in which the public schools which had been governed solely by the states were ordered desegregated. In this decision the “separate but equal” test of Plessy v. Ferguson was rejected, Mr. Chief Justice Warren stating that separate but equal facilities in public schools could not in fact exist.
The Court victories leading to Brown posed a barrier because Southerners viewed the erosion of segregated education as a path to interracial intimacy. Southerners interviewed by a Los Angeles Times reporter in 1961 expressed their “deep-rooted fear” of interracial marriage as the source of their objection to integration. According to a New Orleans businessman, it was fine for blacks to use public accommodations, “[b]ut as soon as they start going to school with white children they’ll start breaking in socially. Kids don’t know any better. First thing you know they’ll be fooling around and then intermarrying and eventually you’ll have amalgamation of the races.”
The Brown opinion relied on the influential 1944 study of race relations in America, An American Dilemma, by economist Gunnar Myrdal, for social scientific evidence of the injuries segregated education inflicted on black children.
The Loving decision was an extension of Brown in the sense that both struck down anti-miscegenation laws that helped to maintain white supremacy.
Courts distinguished anti-miscegenation statutes from other Jim Crow provisions by asserting the “equal application” theory, which held that antimiscegenation laws were not discriminatory because both whites and Negroes were prevented from intermarrying. This language from the 1883 Supreme Court case of Pace v. Alabama was theoretically consistent not only with Plessy, but even with Brown v. Board of Education, since it technically applied the same prohibitions and penalties to whites as it did to other races. Moreover, the courts could legitimately argue that, even after enacting the Fourteenth Amendment, the drafters probably intended to allow states to ban interracial marriages. Such strategically deployed arguments allowed defenders of these statutes effectively to prevent consensual interracial unions, despite successful constitutional challenges to other forms of Jim Crow discrimination (e.g., school and public facility segregation).
However, understanding Brown solely as a case dealing with race and racial segregation obscures the fact that racial segregation in public schools has always been about both race and gender. As a system of legal subordination, racial segregation concerns the regulation of gender relations as much as it concerns the regulation of race relations.
The landmark decision not only overruled the infamous 1896 Plessy v. Ferguson case, which held that state-imposed racial segregation was constitutionally permissible state action, but also helped to catalyze the civil rights movement. However, while today we laud Brown as a seminal and foundational equal protection decision, in 1954 it sparked enormous legal and political controversy. Southern states fiercely resisted the racial integration of its schools. The intensity of that resistance was ultimately attributable to the fact that Southerners knew Brown’s implications would extend far beyond the context of schooling and education. They understood Brown could deeply transform the realm of intimate relations between whites and blacks. As one of the most important twentieth century Supreme Court decisions, Brown has been heavily analyzed by legal commentators.
Well-established views hold that Brown is a case about: (1) how segregation of public schools denied equal educational opportunity to segregated black schoolchildren, by (2) stigmatizing them and treating them as racially inferior to white schoolchildren. In Brown, black public schoolchildren filed suit challenging their racially segregated schools and seeking to be admitted into schools on a “nonsegregated basis.” The plaintiffs’ primary obstacle in challenging the constitutionality of racially segregated public schools was the Court’s decision in Plessy v. Ferguson. Plessy upheld state racial segregation laws as long as they provided for separate but equal treatment of the races. Thus, under Plessy’s separate but equal doctrine, racially segregated schools were constitutional as long as white and black schools were equal in terms of physical facilities and other tangible factors. In Brown, however, the Court rejected the application of the Plessy doctrine. It reasoned that schools with equal tangible factors may not truly be equal for purposes of equal protection: There are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors. A decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of these cases. We must look instead to the effects of segregation on public education. The Court then concluded that, even if black and white schools had equal tangible factors, racial segregation still impeded the learning of black schoolchildren. It therefore held that laws requiring or permitting racial segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment.18 In declaring racial segregation in public schools unconstitutional, the Court’s opinion focused narrowly on the relationship between racial segregation and equal educational opportunity. Throughout its opinion, the Court emphasized the importance of education in modern society. It associated a sound system of public education with citizenship and democracy. Education, the Court asserted, “is the very foundation of good citizenship. Today it is a principle instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.” The Court then hinted at the fundamental nature of the right to education, declaring that once a state has provided for public education, access to that education “must be made available to all on equal terms.” The Court then asked whether the “segregation of children in public schools solely on the basis of race . . . deprive[d] the children of the minority group of equal educational opportunities?” The Court affirmatively answered its own question: “We believe that it does.” Once the Brown Court framed the issue as equal educational opportunity, it devoted the remainder of its opinion to examining how racial segregation in public schools denied black schoolchildren this equal opportunity. That argument focused on the harmful psychological effects of racial segregation on segregated black schoolchildren. Specifically, the Court emphasized the stigmatic harm that undermined their learning and education. The Court quoted at length a district court decision that found that racial segregation had a detrimental psychological impact on black schoolchildren. Then, in a famous passage, the Court asserted that, “[t]o separate [black children] from others of similar age and qualifications solely because of their race generates 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.” Based on its analysis of the severe stigmatic harm racial segregation inflicted on black schoolchildren, the Court concluded that “in the field of public education the doctrine of ‘separate but equal’ has no place.” “Separate educational facilities are inherently unequal,” and, therefore, “segregation is a denial of equal protection of the laws.” The Court’s narrow focus on segregation’s effects on equal educational opportunity has profoundly shaped the subsequent legal discourse on Brown’s meaning. To this day, debates over Brown’s substance focus on the soundness of the Court’s reasoning regarding the harmful educational effects of racial segregation on black schoolchildren. Brown’s critics question whether racial segregation causes such psychological harm and whether integrated schools in fact provide black students with better educational opportunities. Justice Clarence Thomas, for example, has questioned whether integration actually promotes black schoolchildren’s learning. He suggests that there is an underlying assumption of black inferiority in the integrationist belief that they must to sit next to white children in order to become better students. Critical race theorist Derrick Bell has even suggested that black children might have been better served had the Court required the equalization of school resources, rather than racial integration. Thus, the focus on Brown’s educational and pedagogical implications narrows our understanding of racial segregation. It diverts our attention away from how racial segregation in public schools concerns more than just education and race. In particular, Brown’s narrow focus on race and education prevents us from understanding racial segregation as antimiscegenation.
QUESTION 4: Explain the significance of this statute to the Defense of Marriage Act (DOM).
DoMA was signed into law under President Bill Clinton on September 21, 1996. It mandated unequal treatment of legally married same-sex couples, selectively depriving them of more than 1,138 protections and responsibilities that marriage triggers at the federal level. Under DoMA, married same-sex couples were denied a long list of important protections and responsibilities, including Social Security survivor benefits, immigration rights, family and medical leave, and unfair taxation when pooling resources as a family.
In 2004, President George W. Bush endorsed a proposed constitutional amendment to restrict marriage to opposite-sex couples because he thought DoMA vulnerable: “After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity.” (“Bush calls for ban on same-sex marriages” - CNN, February 25, 2004). In January 2005, however, he said he would not lobby on its behalf, since too many U.S. senators thought DOMA would survive a constitutional challenge.
In February 2011, the Obama administration instructed the Department of Justice to stop defending DoMA in court. He called for heightened scrutiny in federal lawsuits. In response to the Obama administration’s decision, the Bipartisan Legal Advisory Group (BLAG) convened to defend DoMA in place of the Department of Justice.
On June 26, 2013, the United States Supreme Court ruled in Windsor v. United States that Section 3 of DoMA was unconstitutional. The decision opened access for married same-sex couples living in states with the freedom to marry to the more than 1,138 protections that marriage provides. Now, work is underway to fully overturn DoMA and end federal marriage discrimination once and for all.
Recently the Supreme Court struck down, in a 5-4 decision, Section 3 of the Federal Defense of Marriage Act, known as DOMA, which act defined and recognized marriages only as contracted between a man and a woman. It did so on the basis that Section 3 of DOMA created a two tiered system under Federal law, under which valid same-sex marriages were denied validity under Federal laws. In the United States, marriage is recognized and defined state by state. Currently, only twelve states and the District of Columbia permit same-sex marriages.
The court reasoned because states traditionally have the right to determine the validity of a marriage, once they’ve done so it is unconstitutional for the Federal government to deny recognition of those marriages. What is less clear is what this ruling will mean for states, like Colorado, who have their own DOMA laws. It must be kept in mind that while there are constitutional limits on the right to determine marriage rights – for example, anti-miscegenation laws (prohibiting mixed race marriages) have been struck down as unconstitutional, the court did not declare discrimination on the basis of sexual orientation unconstitutional. DOMA was struck down because it differentiated between two types of valid, legal marriages, not because prohibiting same-sex marriage was unconstitutional. States still will have a right to disregard each other’s marriages so long as the basis for doing so is not unconstitutional. Because the question regarding whether discrimination against sexual orientation is constitutional remains unanswered, parties who are legally married in one state will still face stiff hurdles in states that do not recognize same-sex marriages.

References
African American Registry. (2013). Supreme Court Rules on Loving v. Virginia. Retrieved from http://www.aaregistry.org/historic_events/view/supreme-court-rules-loving-v-virginia
Case Brief Summary. (2012). Loving v. Virgnia. Retrieved from http://www.casebriefsummary.com/loving-v-virginia/
Case Brief LLC. (2015). Loving v. Virginia. Retrieved from http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-stone/equality-and-the-constitution/loving-v-virginia-4/2/ Destro, R. (1998). Law and the Politics of Marriage: Loving v. Virginia after 30 Years Introduction. Retrieved from http://scholarship.law.edu/cgi/viewcontent.cgi?article=1465&context=lawreview
Duke Bar Journal. (2013). Anti-Miscegenation Laws In The United States. Retrieved from http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1544&context=dlj
Franke, K. (2008). Longing for Loving. Retrieved from http://lsr.nellco.org/cgi/viewcontent.cgi?article=1037&context=columbia_pllt
Head, T. (2012). McLaughlin v. State of Florida (1964): Can States Ban Interracial Relationships? Retrieved from http://civilliberty.about.com/od/raceequalopportunity/p/mclaughlin_v_fl.htm
Laws. (2015). Loving v. Virginia. Retrieved from http://kids.laws.com/loving-v-virginia
Newbeck, P. (2015). Loving v. Virginia. Retrieved from http://www.encyclopediavirginia.org/loving_v_virginia_1967#start_entry
Oh, R. (2006). Interracial Marriage in the Shadows of Jim Crow: Racial Segregation as a System of Racial and Gender Subordination. Retrieved from http://lawreview.law.ucdavis.edu/issues/39/3/defining-voices-critical-race-feminism/DavisVol39No3_OH.pdf
Partners Task Force for Gay & Lesbian Couples. (2015). Defense of Marriage Act. Retrieved from http://buddybuddy.com/doma.html
Roberts, D. (2014). Loving v. Virginia as a Civil Rights Decision. Retrieved from http://www.nylslawreview.com/wp-content/uploads/sites/16/2015/02/Volume-59-1.Roberts.pdf
Schoff, R. (2009). Deciding On Doctrine: Anti-Miscegenation Statutes And The Development Of Equal Protection Analysis. Retrieved from http://www.virginialawreview.org/sites/virginialawreview.org/files/627.pdf
Sussle. (2012). McLaughlin v. Florida. Retrieved from http://sussle.org/t/McLaughlin_v._Florida
Tennessee Government. (2012). Miscegenation. Retrieved from http://www.tn.gov/tsla/exhibits/blackhistory/pdfs/Miscegenation%20laws.pdf
Tokarev, S. (2012). McLaughlin v. Florida, 379 U.S. 184 (1964). Retrieved from
http://uscivilliberties.org/cases/4125-mclaughlin-v-florida-379-us-184-1964.html