McClain on Loving, Obergefell and the "Right Side of History"

Linda C. McClain, Boston University School of Law, has posted Prejudice, Moral Progress, and Being “On the Right Side of History”: Reflections on Loving v. Virginia at Fifty, which appears in Fordham Law Review 86 (2018): 2701-2715:

What does it mean to be on the “right” or “wrong” side of history? When Virginia’s Attorney General explained his decision not to defend Virginia’s “Defense of Marriage Law” prohibiting same-sex marriage, he asserted that it was time for Virginia to be on the “right” rather than the “wrong” side of history and the law. He criticized his predecessors, who defended the discriminatory laws at issue in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. Loving played a crucial role in the majority opinion in Obergefell v. Hodges, even as the dissenters disputed its relevance; it continues to feature in post-Obergefell controversies over religious liberty and LGBT rights. Looking back at the record in Loving, this article argues that Loving illustrates a theme of generational moral progress in constitutional interpretation: laws once justified by appeals to nature, history, tradition, divine law, and the well-being of children and society are repudiated as rooted in prejudice. Virginia sought to distance its antimiscegenation law from prejudice and white supremacy by appealing to social science that identified problems posed by “intermarriage” -- particularly for children -- and rejected the idea that intermarriage was a path toward progress and freedom from prejudice. Countering with narratives of constitutional moral progress, the Lovings and their amici argued that Virginia’s law was an odious relic of slavery and a present-day reflection of racial prejudice, unsupported by modern science. The article concludes with a look at Obergefell, and the competing arguments southern states made about Loving and the lessons of history.