December 7, 2012
One needs look no further than the results of this year’s election, which saw the legalization of same-sex marriage in three states and the defeat of a ballot measure banning same-sex marriage in another, all through the popular vote.
Compared to eight years ago, when all eleven of the states that had constitutional same-sex marriage bans on the ballot enacted them, 2012’s election results represent a huge shift in public opinion.
This increase in general support for LGBT rights has many drawing parallels between today’s movement and the civil rights movement for racial equality in the 1950s and 1960s.
One of the closest parallels between the two movements involves marriage.
Specifically, many LGBT rights advocates point to the 1967 Supreme Court ruling Loving v. Virginia that struck down anti-miscegenation laws – laws that prohibit interracial marriage – in drawing parallels between interracial marriage and same-sex marriage.
This comparison is presumably made in an effort to show their cause as being on the “right side of history;” that is to say, that the average person will look back 35 years from now with disbelief that same-sex marriage was actually illegal – much in the same way that people today look back on anti-miscegenation laws.
What may be even more incredible to people today than anti-miscegenation are laws that banned interracial cohabitation.
Yes, these laws actually existed, and were struck down by the Supreme Court in McLaughlin v. Florida, a ruling announced 48 years ago today, on December 7, 1964.
The challengers of the Florida law were Dewey McLaughlin and Connie Hoffman, a black man and white woman, respectively.
The pair was involved in a romantic relationship, but since the two were legally not able to get married due to the aforementioned anti-miscegenation laws that existed in Florida at the time, they decided to just cohabitate (just as same-sex couples do today for largely the same reasons).
Unfortunately for the couple, Florida law forbade “[a]ny negro man and white woman, or any white man and negro woman, who are not married to each other” from “habitually liv[ing] in and occupy[ing] in the nighttime the same room.”
Of course, not only was interracial cohabitation a crime, but so, too, was interracial “fornication.”
The two were convicted under the statute, and their conviction was upheld by the Florida Supreme Court, which, citing the U.S. Supreme Court’s 1883 ruling Pace v. Alabama (which upheld state anti-miscegenation laws effectively under the “separate but equal” doctrine established by Plessy v. Ferguson), upheld the constitutionality of the Florida law under which the couple was convicted.
The Florida high court noted, interestingly, that the “defendants hope that, in the light of supposed social and political advances, they may find legal endorsement of their ambitions” [with the U.S. Supreme Court].
The Supreme Court did endorse the “ambitions” of the defendants – and did so unanimously.
Specifically, the Court held that the Florida law prohibiting interracial cohabitation was a violation of the Fourteenth Amendment’s Equal Protection clause, since it treated “the interracial couple made up of a white person and a Negro differently than it does any other couple.”
For this same reason, the Court struck down Florida’s law criminalizing interracial fornication.
Although that last bit may seem like McLaughlin is the racial civil rights movement’s version of 2003’s Lawrence v. Texas (which struck down laws criminalizing sodomy), there is at least one key difference between the two: McLaughlin cited to equal protection in striking down Florida’s discriminatory laws, where Lawrence invoked the substantive due process fundamental right to privacy.
Because of McLaughlin’s reliance on the Equal Protection clause, anti-miscegenation laws were declared unconstitutional two and a half years later in Loving – which explicitly relied on McLaughlin in holding that an interracial couple may not be treated any differently under the law than a couple of the same race.
If Lawrence had made an analogous declaration – that same-sex couples may not be treated any differently under the law than opposite-sex couples – it’s quite likely that same-sex marriage would be legal today.
It’s likely, however, that 2003’s Supreme Court foresaw such consequences arising from an equal protection rationale, and consciously chose to avoid it (except for Justice O’Connor’s concurrence).
Perhaps the Court was waiting for more substantial “social and political advances” before issuing a “legal endorsement” of same-sex marriage.
If so, the high court’s wait may be over with the 2012 election results.
And with so many same-sex rights cases seeking review before the Supreme Court this term, whether the Court was actually waiting for said “social and political advances” will be known by the end of its current term.