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Episode 10 of the Constitutional podcast: ‘Love’


(Michelle Thompson for The Washington Post)

The words “marriage” and “love” appear nowhere in the U.S. Constitution. Yet 50 years ago, the Supreme Court ruled in Loving v. Virginia that state bans on interracial marriage were unconstitutional. The justices unanimously decided that such bans violated the due process clause and equal protection clause of the 14th Amendment, but the court also made a broader point: “Marriage is one of the basic civil rights of man,” Chief Justice Warren wrote in the court’s opinion, “fundamental to our very existence and survival.”

These same arguments would prevail in 2015, when the Supreme Court struck down state bans on same-sex marriage in the case Obergefell v. Hodges.

The 10th episode of The Washington’s Post “Constitutional” podcast explores the evolution of marriage as a right in America. This episode features the voices of Philip Hirschkop, a lawyer who argued the 1967 Loving v. Virginia case before the Supreme Court, and ACLU National Legal Director David Cole.

Listen to the episode here.

Check out the “Constitutional” Web page and subscribe to get new episodes free on Apple PodcastsStitcher or wherever you listen to podcasts. For updates about the series, you can also follow podcast host Lillian Cunningham on Twitter: @lily_cunningham

Transcript of “Episode 10: Love”

OBAMA: Good morning. Our nation was founded on a bedrock principle — that we are all created equal. The project of each generation is to bridge the meaning of those founding words with the realities of changing times — a never-ending quest to make sure those words ring true for every single American.

LILLIAN CUNNINGHAM: It was only a couple years ago, on a warm day in June 2015, that President Obama gave this address in the White House rose garden. Just hours earlier, people were crowded in front of the marble steps of the Supreme Court building, waiting for a decision to emerge from its hall.

OBAMA: Progress on this journey often comes in small increments, sometimes two steps forward, one step back; propelled by the persistent effort of dedicated citizens.

CUNNINGHAM: They were chanting “love is love” — waiting for the decision in the case Obergefell v. Hodges, which would determine whether state bans on same-sex marriage violate the Constitution. At 10 a.m., news staffers came bolting out of the doors, down the steps of the Supreme Court, waving the thick packet of the ruling.

OBAMA: And then sometimes there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.

[People cheering]

OBAMA: “The Supreme Court recognized that the Constitution guarantees marriage equality.”

CUNNINGHAM: This was the second major marriage decision the Supreme Court had ever handed down. The first was in 1967, when the court declared that interracial marriage was constitutional, in the landmark case of Loving v. Virginia.

That was a quieter case, decided in an age before social media — an age before the steps of the Supreme Court became a public square, filled with TV cameras and protests and celebrations.

Yet it was that case — argued nearly half a century before on essentially the same grounds, both literally and figuratively — it was that case that set the stage for the more recent same-sex marriage decision. The 1967 ruling had a profound impact on the evolution of a core personal liberty in America, but a liberty that’s not explicitly mentioned anywhere in the Constitution: love.

I’m Lillian Cunningham with The Washington Post, and this is Constitutional.

[Theme music]

When the framers wrote that they wanted the U.S. Constitution to “ensure domestic tranquility,” that’s generally taken to mean that they hoped the document would help promote peace among the states — keeping the country free from rebellion and violence.

But at the heart of a nation’s tranquility and stability are the hearts of its citizens. And so “ensuring domestic tranquility” in America has required not just preventing chaos in the streets, but also enabling the pursuit of happiness among its people.

And at the root of that happiness is often: love, family, partnership. Yet, there’s no language in the Constitution about any of these things.

For the past 230 years though, since the Constitution was written, it seems that people have wanted there to be. Since 1787, there have been about 95 amendments proposed that relate to marriage in the United States.

The first was in 1871 by Congressman Andrew King from Missouri. It was shortly after the Civil War had ended, and–in backlash against the new constitutional rights that African Americans were gaining — King proposed an amendment that would ban interracial marriage across the United States.

It didn’t get enough votes to pass, but that didn’t stop others after him from also trying to amend the Constitution to clarify marriage rights. There was one proposed amendment, for example, that would have given Congress explicit authority to create nationwide marriage and divorce laws. A version of that amendment was proposed over and over again throughout the late 1800s and early 1900s.

But none of these amendments ever passed. Instead, marriage and divorce laws continued to be made at the state level–resulting in a wide range of policies. This in turn sparked a kind of marriage and divorce tourism, where couples would sometimes drive to more lenient states (like Nevada) to either tie the knot or break it.

DAVID COLE: As long as the Constitution didn’t speak to it or had not been interpreted to speak to it, it was left to the states.

CUNNINGHAM: This is David Cole, national legal director of the ACLU.

COLE: And so states could choose to recognize marriage between people of different races or different faiths or same sex, or they could choose not to.

CUNNINGHAM: By the mid 20th century, a number of Southern states still didn’t permit interracial marriages; and no states at the time recognized same-sex marriages.

Because, as we said, nowhere in the Constitution did it decree that all citizens have the right–the personal freedom–to marry whomever they love.

Then again, when a Bill of Rights was first proposed, James Madison worried that the very act of enumerating certain rights would give the false impression that any rights not listed weren’t protected. And maybe this — marriage — was one of those unenumerated rights that, though not explicitly named, nevertheless sits implicitly, quietly at the core of our fundamental sense of liberty.

COLE: The Constitution doesn’t talk about marriage, doesn’t talk about love, doesn’t talk about commitment…

CUNNINGHAM: But…

COLE: but it does talk about due process and it does talk about equal protection.

CUNNINGHAM: So, maybe the right to love was buried somewhere in the Constitution after all.

Loving was his last name. His first name was Richard. He was white, and he was born in Virginia in 1933. By the 1950s, he had fallen in love with Mildred Jeter, a fellow Virginian, who was African American with some Native American ancestry.

Their love story would lead to a case that eventually went to the Supreme Court. And a young civil rights lawyer named Philip Hirschkop would end up arguing on their behalf. Richard and Mildred have since passed away, but their lawyer Philip is still alive. He’s 81-years old, lives in Virginia, and I went to his home to talk about his memories of the Lovings.

PHILIP HIRSCHKOP: They met. He raced cars with her brothers; and they they met socially and wanted to get married, very much in love, but could not under the laws of Virginia.

CUNNINGHAM: They both grew up in Virginia’s Caroline County, close to Richmond.

HIRSCHKOP: And the county back then in the 1950s was very mixed between African-Americans, Native Americans and white people. It was segregated. The schools were segregated. But the people really lived together, got along.

CUNNINGHAM: But Virginia was one of those states that still didn’t permit interracial marriage. Not only did it not officially recognize interracial marriage; the state actually treated it as a crime.

In 1924, it had passed something called the Racial Integrity Act, which required that every Virginian at birth be classified as either white or “colored” — that was the state’s official term. And it was defined as anyone who had “one drop” of non-white ancestry. The law then criminalized any marriage between white and non-white people, punishable by jail.

HIRSCHKOP: The racial laws in Virginia, enacted then when the Klan was probably at the height of its development in this country, right at the end of the first world war. In the southern states, a number of states in the mid 20s passed these type of laws.

CUNNINGHAM: By the end of the 1950s, around when Mildred Jeter and Richard Loving wanted to get married, Virginia was still one of about 20 states that had laws in place banning interracial marriage.

There had been a progressive case, back in 1948 in California — called Perez v. Sharp — in which California had ruled that its own state ban on interracial marriage was unconstitutional. But instead of that setting an immediate precedent for the nation to follow, it was sort of put on a shelf — not yet ready to spark a major change throughout the country as a whole. Certainly not in Virginia, or at the level of the Supreme Court. That decision in California seemed just a world away from Richard and Mildred’s reality.

They were living through the civil rights movement, watching laws and institutions change around them; but not marriage.

COLE: The entire civil rights movement was about erasing official racial distinctions.

CUNNINGHAM: David Cole of the ACLU again.

COLE: But groups like the NAACP Legal Defense Fund, which was really the leader in the effort to dismantle explicit racial laws and racial segregation, made a choice that: We aren’t going to go after marriage first, because marriage raises a whole host of issues that are difficult — because it was an intimate relation between the races.

CUNNINGHAM: The bigger push started instead with education. The country had recently witnessed major civil rights victories, like the 1954 decision in Brown v. Board of Education — the landmark Supreme Court case that desegregated school systems across the country.

COLE: Once they won that, they then sought to expand this principle against segregation beyond the educational context to a host of other municipal facilities, whether they be parks or swimming pools or you know prisons, the like.

CUNNINGHAM: But by 1958, Richard and Mildred still couldn’t get married in their home state of Virginia, so they drove to a courthouse in Washington, D.C.

HIRSCHKOP: Which was still a felony in Virginia — to avoid the Virginia laws. They were arrested for it.

CUNNINGHAM: That is, once they had returned to Virginia and were living there as a married couple.

A sheriff, perhaps tipped off by someone, showed up at their home early one morning–while they were still in bed–and arrested them for breaking Virginia law — just for being married to each other, even though the marriage was performed out of state.

They were sentenced to one year in jail and were banished from Virginia for 25 years, ordered not to return together ever again. So, once more, Richard and Mildred packed up and drove to Washington, DC. But this time to start a new life.

HIRSCHKOP: They had three children in the District of Columbia, but they really hated living away from their family. They were rural people, and D.C. was terrible for them.

CUNNINGHAM: They were aching to move back home.

HIRSCHKOP: Mrs. Loving was encouraged by her family to write someone to do something about it. And so she wrote to Attorney General Robert Kennedy. He referred her to the American Civil Liberties Union. She wrote to the ACLU, and they said they would look into it. And in 1963 a petition was filed on their behalf. That’s how the case got started.

CUNNINGHAM: The way Philip Hirschkop here got involved was: He was just a couple years out of law school, working as a civil rights lawyer, when his former constitutional law professor put him in touch with another former student, Bernard Cohen. Cohen was looking for help working on this case he had.

HIRSCHKOP: And so in 1964 I met him in July. I went to work for his firm in September. In October, we filed the federal lawsuit on behalf of the Lovings.

CUNNINGHAM: Hirschkop met with Mildred and Richard Loving in person a few times as he took up their case.

HIRSCHKOP: He was very reserved, very quiet, barely spoke. It’s just the way he was. He hated the idea of being involved in a lawsuit, having publicity. He just wanted to be with his wife and kids and fix racing cars and go out to the local dirt track and be with the local people, his family in Caroline County.

When I first met him, I’d been deeply involved in civil rights in Mississippi. He struck me visually as the red neck I was facing, but he was anything but. He stuck with his wife. They could have moved anywhere and stayed together, other than the Deep South. Or they could have not been married and he could have enjoyed whatever relationship he’d have, not for marriage. But he wouldn’t do that. He wanted to make the sacrifice of all the chances the lawsuit brought and criminal prosecution brought. But I’d say he was very quiet and seemed devoted to the kids.

Mrs. Loving was instantly likable. She was a very warm person, but very shy. So when you’re around her, she didn’t volunteer anything, she didn’t speak a lot. She was very articulate, she wrote beautifully, had a great cursive hand when she wrote the letters to the attorney general, the ACLU, to Mr. Cohen, to me. But a very warm, likable, shy woman.

She wasn’t looking to be a hero or to upset any laws. She just wanted to live in Virginia. When the ACLU first looked at it, it was treated as a criminal case. No one was looking at it as a great constitutional endeavor.

CUNNINGHAM: But by the time it was appealed all the way to the Supreme Court, the stakes had definitely changed. The Lovings’ case suddenly looked poised to be the next major civil rights turning point.

After decades of effort to integrate schools and other public spaces, the civil rights movement might finally have in its hands a case that could integrate the private institution of marriage.

HIRSCHKOP: Remember what was going on. In the 60s, early 60s, we had the freedom riders. One bus they tried burning it in Alabama with all the riders on it. They were going to burn up 20 some young people, with a big crowd of white people cheering. And in ‘63, you had Medgar Evers murder. You had President Kennedy’s assassination. You had the four girls were blown up in the Birmingham church. In ‘64, you had the three boys killed in Mississippi. You had the passage of the Civil Rights Act. And during this whole period, you had governors standing in schoolhouse doors in Alabama, in Arkansas and Mississippi. So it was it was a very, very hot time in the United States. Would the Supreme Court, in light of all of that, take this next step? Was the country so in upheaval at that time that they wouldn’t do it?

CUNNINGHAM: A state like California had been ready 20 years earlier, but not the nation as a whole. So the question now in 1967 — before Philip Hirschkop, and before Mildred and Richard Loving — was: Has enough changed? Is the Supreme Court now ready to take one of the remaining major steps toward civil rights, by declaring interracial marriage constitutional across the land?

COLE: I don’t think the justices are sitting there thinking, “Well you know, is the nation ready? No, let’s wait 20 years.” The justices don’t think that way. They deal with the cases before them. They look at the legal arguments that are made. But they see those legal arguments — they understand those legal arguments — as people who live in the world. And the world changes over time. So the world in 1948, that’s before Brown versus Board of Education. Jim Crow segregation is the law of the land in half the country. The world in 1968 is a very different world, and so you see the arguments differently. And the same thing was true with respect to marriage equality. The world with respect to gay rights in 1972 and 2015 — it was two different worlds.

[Archival tape from the Loving v. Virginia oral arguments]

CUNNINGHAM: This is archival tape from the oral arguments.

On April 10, 1967, Philip Hirschkop entered the Supreme Court building thinking, hoping, that the winds of change were blowing at his back. He and Cohen were going to deliver the two oral arguments on behalf of the Lovings.

HIRSCHKOP: He did the backup argument on due process. I did the lead argument on equal protection.

[Archival tape from oral arguments]

First, there’s a due process argument, which is: There’s no fair procedure. The law is based on any drop of negro blood. Well, how would you measure any drop of negro blood? How could you enforce this law? How could you test it? It had no fair procedures, nor did it give the people subject to it fair procedures in the prosecution. So as a due process matter, the laws were just terrible, they’re unconstitutional.

[Archival tape from oral arguments]

The more important argument to me, and the argument I made in the U.S. Supreme Court, was the equal protection argument — that it’s just a racially based statute and that it denies your constitutional rights, because it just discriminates on the basis of race. So it’s a 14th Amendment equal protection denial.

[Archival tape from oral arguments]

I had never been before the Supreme Court. I was only two years and a little over two years out of law school. Mr. Cohen was only four years out of law school and he’d never been before an appellate court.

It was a buzzing exciting day, you know my first Supreme Court argument in a case of such moment.

And the courtroom was packed. There was a lot of press. The Lovings had declined to come there. They did not like public appearances. I still have the letters with them about it. I’d written Mrs. Loving, and she said: If you don’t need us, we’d prefer not to be there. You can tell us what happened.

My parents were there. So I remember the day so well. After the argument, Bernie Cohen took a picture of my father and I on the steps the U.S. Supreme Court. That picture sat on my desk now for 50 years.

CUNNINGHAM: It was about two months before the Supreme Court released its opinion, on June 12, 1967. The court ruled unanimously in favor of the Lovings. And with that, all interracial marriage bans across the United States were immediately struck down.

In Chief Justice Earl Warren’s opinion, he affirmed: Yes, the due process and equal protection arguments are valid and they render these interracial bans unconstitutional. But Warren also made a bigger point:

HIRSCHKOP: The Supreme Court went beyond that in saying that it was a fundamental right. The U.S. Constitution has two kinds of rights. One is created by the U.S. Constitution — so you have the Bill of Rights, which guarantees free speech, freedom of the press, freedom of religion, freedom from search and seizure, a right to bear arms, right to counsel, a whole number of things. But they are created by the written document of the Constitution itself.

CUNNINGHAM: The other kind of rights are the ones James Madison had talked about–the unenumerated rights. These were ones that weren’t listed in the Constitution, but that are nevertheless innate and indisputable.

HIRSCHKOP: There are certain other rights which are so fundamental that you’re born with them by virtue of being a citizen of this country. Certain inalienable rights: life, liberty and pursuit of happiness. And so the Supreme Court has rarely but occasionally enunciated such a right.

But the Supreme Court found that the right to marriage was a fundamental right. If you’re born into a democratic society, you have a right to choose the mate you’re going to live with, the person you want to spend your life with and raise a family with.

CUNNINGHAM: And so in the Loving v. Virginia decision, it was confirmed: Marriage is a fundamental right so embedded in the very essence of the Constitution–and in the concept of liberty–that it need not be mentioned to be protected.

As one excerpt from Chief Justice Warren’s opinion states: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.”

That sentiment would be echoed nearly 50 years later, when the case of Obergefell v. Hodges was decided in the same marble building.

Like the civil rights movement, the gay rights movement had slowly and somewhat systematically been building toward a Supreme Court marriage case, but only after amassing decade after decade of other victories and social changes.

COLE: The Constitution is meant to stand firm over time. It’s not meant to be easily changed. It does develop over time, but it doesn’t develop in revolutionary ways, it develops in incremental ways. And so you need to think strategically about what are the small steps that you can take that will eventually make a big step, like recognizing marriage equality in 2015, possible.

CUNNINGHAM: Only five years after the Loving’s case had been decided by the Supreme Court, and state bans on interracial marriage had been declared unconstitutional, the gay rights movement tested the waters with its own marriage case.

An ACLU attorney brought forward a case in Minnesota in 1972 on behalf of a gay couple who claimed they had a constitutional right to marry. The lawyer used the same argument as had been used in the Loving case — basically, that a ban on same-sex marriage also violated the due process clause and the equal protection clause.

COLE: The Minnesota Supreme Court had so little sympathy for the argument that they didn’t ask the lawyer representing the gay couple a single question. And one of the justices on the court was so offended that this argument was even made that he turned his back on the lawyer for the gay couple for the entirety of the argument. They then issued a decision shortly thereafter, a very brief decision rejecting this claim and citing the Book of Genesis as a source of authority — not usually a source of authority for interpreting the Constitution.

The ACLU lawyer then appealed that to the U.S. Supreme Court and said, “You should review this.” And the Supreme Court rejected that petition in a single sentence, saying it doesn’t even raise a substantial federal question. So that was 1972, and it shows that, at that time, the notion that the Constitution protected people of the same sex to get married was essentially unthinkable.

Fast forward to 2015 when the Supreme Court heard the Obergefell decision. At that point, it was essentially inevitable that the court would recognize same-sex marriage, that the writing was on the wall. Did the arguments change? No, the constitutional claims that were made in 2015 were the same constitutional claims. They were based on the due process clause, protecting privacy and dignity, and the equal protection clause. Did the court change? To some degree the court changed. But if anything, the Supreme Court in 2015 is more conservative than the court in 1972 — which was sort of the tail end of the Warren court era, the most liberal court in American history. What changed was the world changed. And because the world changed, the court was able to recognize something in 2015 that it didn’t even see as presenting a serious federal question in 1972.

CUNNINGHAM: After that 1972 same-sex marriage case that went nowhere in Minnesota, progress came in a sort of two-steps-forward-one-step-back kind of way over the next 40-plus years. Decisions happened on a state level in Hawaii, Vermont, Massachusetts, California. By the time the case of Obergefell v. Hodges appeared and went to the Supreme Court, the argument it presented echoed that of Loving v. Virginia. It was:

COLE: This is not just a policy question for each state. This is actually a fundamental aspect of personal dignity, protected by the due process clause and a fundamental aspect of equal protection.

CUNNINGHAM: On June 26, 2015, the Supreme Court officially agreed. Justice Anthony Kennedy, who wrote the court’s opinion, said:

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

COLE: With the Loving decision, I think the heart of the decision was: Even though a law that says that white people can’t marry black people and black people can’t marry white people, is neutral in terms of it treats white people the same as it treats black people; the real message, the real driving force, was to maintain racial subordination and to maintain white supremacy. And that was why the court found that it was a violation of the Equal Protection clause.

In the Obergefell decision in 2015, I think what Justice Kennedy really said was: Look, we have recognized under the due process clause a set of privacy rights, which we define as the right of of human beings to make really critically important decisions that affect themselves in intimate, personal ways. How your children are going to be educated were some of the first decisions that the court recognized as constitutionally protected, the rights of a married couple to decide when and whether to have children by using contraception was another, the right ultimately of a woman to decide whether to terminate a pregnancy — the abortion decision — was another. And Justice Kennedy said the right of two people to decide to come together in a union is similar.

So it was a combination of the dignity and privacy elements of making an intimate decision about the way you’re going to live your life, coupled with an equality norm that says: If you’re going to do it for some, you have to do it for others who are similarly situated.

CUNNINGHAM: There is still no amendment that puts language about marriage and love into the Constitution. But these two cases did almost the same work — they cemented new interpretations of the Constitution. They breathed even greater life into those core rights of privacy and equality. They advanced the country’s definition of marriage, but they did so by making the case that a person’s choice to love — and whom to love — is fundamentally embedded in our freedom and our equality as human beings.

Kennedy expressed it this way in his opinion:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

COLE: There’s a lot of debate about the Constitution and how it should be interpreted and should it be read in light of the fact that it was written 200 years ago? Or should we understand it as a more flexible document, a living document that reflects our fundamental commitments today, framed by the original understandings but recognizing that there is substantial development?

But I think that when you actually look at how a constitution develops and changes over time, it’s not so much the rational workings of Supreme Court justices. But it is much more the work of citizens coming together around fundamental commitments, who then engage in a campaign over time to bring the country along to a different vision of the Constitution. And that’s how the Constitution lives. It lives in us, as much as it lives in the opinions of the Supreme Court.

CUNNINGHAM: In 2015, as the Obergefell decision came down, the crowds outside the Supreme Court building were animated by the Constitution. It was a loud, vibrant, public display of how the will of the people can bring change and new meaning to the contours of American democracy.

In 1967, the scene was so different. No crowds on the marble steps. No parades.

HIRSCHKOP: It was a very pivotal case, in a very quiet way.

CUNNINGHAM: Mostly because it was a different era. But maybe there was also something fitting about that. It captured the feeling that privacy, intimacy, our connection to another being, our expression of self–is beyond the touch of the outside world.

HIRSCHKOP: People have asked me, “After a major victory, do you gloat? Do you go party? What do you do?” And a lot of lawyers have big parties and they celebrate, they pour out the champagne. The best moment for me is the next morning when you’re shaving. No one else is there. You’re looking at yourself in the mirror and you can say: I did good. Maybe when I look at my pop’s picture on my desk, I can say: Hey pop, I did the right thing. And that’s the feeling I have about Loving. A very inner feeling that I was really lucky–lucky to be able to be part of such a case like that, and lucky it went the way it did.

https://www.washingtonpost.com/news/on-leadership/wp/2017/11/06/episode-10-of-the-constitutional-podcast-love/

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