Loving and the Legacy of Unintended Consequences

Loving and the Legacy of Unintended Consequences

Wisconsin Law Review
2007,  Number 2
Pages 241-281

Rachel F. Moran, Michael J. Connell Distinguished Professor of Law
University of California, Los Angeles

Table of Contents

  • I. Introduction
  • II. Making History Rest on Traditional Assumptions
    • A. The Significance of Race
    • B. The Meaning of Marriage
    • C. A Domestic Paradigm of Race and Intimacy
  • III. Undoing Traditional Assumptions: The Unintended Consequences of Loving
    • A. New Frontiers in Race: Multiracialism and Colorblind Segregation
      • 1. The Mixed Promise of Multiracialism
      • 2. The Rise of Colorblind Segregation
    • B. New Paradigms of Intimacy: Same-Sex Marriage Advocacy and the Rise of Marriage-Minded Singlehood
      • 1. The Same-Sex Marriage Movement
      • 2. Marriage-Minded Singlehood
    • C. From the Color Line to the International Border
  • IV. Conclusion


If it can take a decade for a person to appreciate the implications of a major life event, it can take even longer to realize the significance of a turning point in the history of a nation. Perhaps for that reason, we hold commemorative events like this one.  An anniversary is an opportunity to reflect on a pivotal moment with distance and detachment and to weigh the consequences more fully than was possible at the time. On this fortieth anniversary of Loving v. Virginia, perhaps what is most striking is that a case deemed pathbreaking in its day now seems to have taken so much for granted.  Because the United States Supreme Court interrogated the meaning of neither race nor marriage, Loving has been invoked in a number of later struggles in ways that might have taken the Justices by surprise. This result, of course, is part of the law of unintended consequences: the more that is left unexamined, the more likely that a fresh look will reveal implications beyond those originally contemplated.

Here, I will explore Loving’s unintended consequences by considering why the Court took so much for granted and how the opinion later was deployed in unexpected ways. After briefly examining the facts and holdings in the case, I will show that the Justices accepted monoracial categories as a given, despite evidence of multiracial complexity. The Court’s treatment of race reflected the need to implement desegregation orders that turned on clearcut racial distinctions. The Justices also regarded marriage as a longstanding tradition. Already under attack for conjuring up unenumerated rights that did not appear in the Constitution, the Court was loath to suggest that marriage was anything other than an uncontroversial historical institution.

Ironically, the Court’s assumptions about race and marriage have been directly subverted by those who most openly lay claim to Loving’s legacy. Proponents of multiracialism and advocates of same-sex marriage argue that their reform proposals are a natural outgrowth of the Court’s conceptualization of freedom and equality. At the same time, Loving’s subtler consequences have gone largely unaddressed. The case arguably ushered in a jurisprudential philosophy that treats colorblindness and ongoing segregation as compatible. In addition, the decision entrenched the primacy of marriage in the law’s recognition of close personal relationships. Finally, Loving acquiesced in the presumption that romance happens only among Americans and so the decision has been of little import in dignifying and protecting the intimate attachments of noncitizens. Such a complex legacy demonstrates why a perfectly factual account of Loving simply will not do, and so it may take some time to appreciate the consequences.

Read the entire article here.

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