Mixed Race Studies

Deciding on Doctrine: Anti-Miscegenation Statutes and the Development of Equal Protection Analysis

Virginia Law Review
Number 95, Issue 3 (May 2009)
pages 627-665

Rebecca Schoff
University of Virginia School of Law

In 1967, the Justices of the Supreme Court of the United States were in complete agreement that the statutory scheme before them in Loving v. Virginia, which criminalized interracial marriage, should be invalidated. They did not, however, agree on which legal doctrines justified the invalidation. Eight Justices signed on to an opinion that carefully hedged the question with arguments related to both the equal protection and the due process clauses. Justice Potter Stewart authored a terse concurring opinion asserting that there could be no valid state law “which makes the criminality of an act depend upon the race of the actor.” Although no other member of the Court was willing to sign on to this concurrence, it gave voice to a doctrine that had been a central argument of civil rights litigation, articulated as early as Justice [John Marshall] Harlan’s famed dissent in Plessy v. Ferguson.

This Note will explore why the Warren Court chose the path it did to invalidate anti-miscegenation laws. More generally, it will analyze the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: assuming that Justices are in agreement as to which party should prevail, what factors, legal and non-legal, can influence the Court’s preference for one doctrine over another? In Loving, the decision to reject Justice Stewart’s rationale had far-reaching consequences. Had the Court followed Justice Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. It might be argued that the Court was simply seeking the narrowest grounds on which to decide the case and that Justice Stewart’s reasoning was simply too broad. Loving’s now-controversial place as a precedent supporting substantive due process analysis in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated, by Justice Stewart’s approach. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction be-tween equal protection, due process, and fundamental rights. Ultimately, this Note will argue that the Warren Court showed a preference for a less rule-like approach to equal protection analysis, in part because the conditions surrounding desegregation exacer-bated the difficulty of analyzing the scope of rules. Dissecting the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to under-stand how and why the Court resolves such problems in particular ways…

Read the entire article here.