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Today it was in the news (for example at the Washington Post) that the U.S. Senate has passed a bill to protect interracial marriages.

Among other things, this bill would require that people are considered married in any state as long as their marriage was valid in the state where it was performed. This seems a bit odd because, as far as I know, there is no jurisdiction in USA that attempts to operate under 1950's laws regarding race relations.

Why would interracial marriages need legal protection in the United States?

Panda
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alec
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    Are you asking specifically why protection is required to ensure a marriage in one state is recognised in other state, i.e. what are the consequences to a couple if a state fails to recognise their mixed-race marriage conducted in another state? Or are you asking why people fear mixed-race marriage may become illegal or be restricted? – Stuart F Nov 30 '22 at 11:29
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    I’m voting to close this question because if there is really some legacy remaining that may make interracial marriages illegal in USA - incredible - this can be much better verified and clarified in Law stack exchange. – Stančikas Dec 01 '22 at 11:14
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    @Stančikas Racism and nationalism have either had a recent resurgence in the US, or they were always part of US politics and were "silent" for a few decades (probably both). This is also true in some other countries, it seems, but it’s pretty obvious in the US. – Todd Wilcox Dec 01 '22 at 13:33
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    @Stančikas If the actions of legislatures are off-topic here, what could possibly be on-topic? – Azor Ahai -him- Dec 02 '22 at 17:48

4 Answers4

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Because, in the recent Supreme Court opinion in the Dobbs case, the legal reasoning that Justice Alito used to overturn Roe v. Wade can reasonably be concluded to logically imply that Loving v. Virginia, which held that bans on interracial marriage were unconstitutional, should also be overturned.

This is because Dobbs severely constrains and disfavors the substantive due process doctrine and the right to privacy upon which both the Roe and Loving decisions relied, even though it claims to limit its holding only to abortion.

But, a concurring opinion by Justice Clarence Thomas in Dobbs v. Jackson Women's Health Organization argued the Court "should reconsider" the Obergefell decision which protects same sex marriage and is closely analogous in legal reasoning to Loving v. Virginia. Justice Thomas basically concludes that the substantive due process doctrine which Justice Alito argues can be overcome by a legitimately governmental interest in the case of abortion is more fundamentally unsound in all cases.

Incidentally, Justice Thomas has also been the primary advocate on the court for not resorting to the due process clause of the 14th Amendment in the other part of the substantive due process doctrine that Justice Alito leaves unscathed, which is the use of this doctrine to justify the application of most provisions of the Bill of Rights to state and local governments (also called the "incorporation" doctrine). Justice Thomas believes that the incorporation doctrine should instead flow from the privileges and immunities clause of the 14th Amendment rather than from its due process clause, which would have the most significant practical effect of denying the protection of the Bill of Rights vis-a-vis state and local governments to people who are not citizens of the United States.

Also, politically linking protections for same sex marriage (which has majority public support) with protections for interracial marriage (which has overwhelming public support now, although it is unpopular at the time that it was decided) made the bill harder to oppose politically.

ohwilleke
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  • Comments are not for extended discussion; this conversation has been moved to chat. – ohwilleke Nov 30 '22 at 21:44
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    It's worth noting that though Justice Thomas mentioned other right to privacy -based rights (like Obergefell) in his concurrence, he did not bring up Loving. I suspect that had he brought up Loving, it might have made for awkward dinner conversation (he and his wife are of different races). – Flydog57 Dec 01 '22 at 00:31
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    It is very difficult to understand this answer. Could you possibly add a one sentence summary at the beginning? – Stančikas Dec 01 '22 at 05:51
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    @Stančikas the first sentence is the summary. It may require knowledge of how U.S. legal system works to understand, though. Maybe the answer could incorporate some additional explanation of theterms used (the definition of "substantive due process doctrine", for example)? – Danila Smirnov Dec 01 '22 at 09:21
  • A question so complex in the law terms should probably belong to Law stack exchange. – Stančikas Dec 01 '22 at 11:11
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    @Stančikas It's a political issue – Caleth Dec 01 '22 at 13:14
  • Is the asker curious about the legal or political future of interracial marriage? Maybe "political" isn’t the right word, but could they be asking whether there is any political will in the US to go back to banning interracial marriages? To put it bluntly, I feel like this answer might benefit from mentioning that there is still enough racism in US politics that it’s conceivable a state legislature could enact a law banning interracial marriage. – Todd Wilcox Dec 01 '22 at 13:30
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    @ToddWilcox - The Republican Party supports so many negative things that there is a natural inclination to believe that they support any negative thing one could imagine. However, 56% of Republicans support a law to protect interracial unions versus 25% against passing such a law and there is greater than 90% approval of interracial marriage itself even in more Republican regions. – Obie 2.0 Dec 01 '22 at 14:20
  • In other words, there is plenty of racism in American politics, and there are undoubtedly a disproportionately high number of people in the Republican Party who would be in favor of banning interracial marriages. However, the data suggests that these numbers are far from what would be needed even for a state legislature to contemplate it. – Obie 2.0 Dec 01 '22 at 14:22
  • I suggest that the real concern of people proposing such laws is fourfold: first, the concern that eliminating such protections would allow for a ban at some point in the indefinite future; second, the notion that overturning Loving (which is indeed possible) might reinstate laws rendered invalid by that decision; fourth, getting as many people as possible to sign on to protect same-sex marriage by tying it to something more popular; and fourth and most important, to associate Republicans' actions with a position that is odious even among their own voters. – Obie 2.0 Dec 01 '22 at 14:29
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    @Obie2.0 in that you appear to be both interested and informed, perhaps you might write an answer of your own to this question? – CGCampbell Dec 01 '22 at 15:46
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    @CGCampbell - This answer seems adequate and in fact addresses at least two of those points, while the accepted answer addresses another. I was responding to the previous comment. – Obie 2.0 Dec 01 '22 at 15:50
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    @Obie2.0 Not sure why you mentioned republicans in your response to me, since I did not mention them and neither does this answer. – Todd Wilcox Dec 01 '22 at 16:18
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    @ToddWilcox - Well, it's because there is no need to dance around the facts. The Republican Party is the party that has put same-sex marriage in its sights, and Republican-leaning justices overturned Roe v. Wade. The Republican Party also has more explicit racism: they might not be interested in making interracial marriage illegal, but it's completely plausible that some members might be in favor of that. The Democratic Party has no interest in eliminating any of those. – Obie 2.0 Dec 01 '22 at 16:19
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    @Obie2.0 I wouldn't be so sure the national numbers would extend so readily to the states. A 2011 poll found that only 40% of Mississippi Republican voters believe interracial marriage should be legal. While a decade has passed since then, Mississippi's general views don't seem to have changed much in the meanwhile. – called2voyage Dec 01 '22 at 19:39
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    @called2voyage - After reading that poll, I concede the point. Mississippi may be an outlier—even majority-Republican regions showed strong support in recent polling—but it only takes one state to prove my broad statement wrong. – Obie 2.0 Dec 01 '22 at 21:11
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    @Stančikas the whole issue is purely political, with the far left trying to convince people that conservatives are going after their human rights. This is but one such example too, the deliberate misrepresentation on the Supreme Court overturning Roe is another one, and a bigger one. The left presents it as the Court making abortion illegal when all the Court did is stating that the decision that it is a federal issue was incorrect and it is up to the states to decide for themselves. If this new law ever gets before a constitutionalist Court it'll decide the same there. – jwenting Dec 02 '22 at 08:54
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    @jwenting I don't think that disproves the sentiment of the argument though (going after human rights). If something really is a human right then it's doesn't make much sense to decide it on a state-by-state basis. Then there's also the view that you just can't get away with a more extreme measures so you concede to something less extreme. – DKNguyen Dec 02 '22 at 14:54
  • A good answer, but at the start I would probably have clarified the law was primarily aimed at protecting same sex marriages. That is the implication in all you write, but it's not spelled out explicitly from the start and thus forces one to do a bit more thinking to conclude what your getting at. I don't believe in thinking, it hurts my head. Or I think it hurts my head, but thinking about that hurts my head....Okay now I need an aspirin ;) :P – dsollen Dec 02 '22 at 15:59
  • @DKNguyen if something is a human right it is implicitly covered by the US constitution as the constitution recognises the UN declaration on human rights. If it isn't, the Court has no jurisdiction over it. Problem here is that people scream "human rights" over things that aren't (like the left screamed that abortion is a human right, it's not) – jwenting Dec 02 '22 at 16:01
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    @jwenting That's the crux of the opposing viewpoints though: Some people think it should be a right while others don't. So if one side opposes it because they don't think it's a right and the other side supports it because they think it is, logically the latter would interpret it as trying to take a right away while the former would interpret it just as a matter of course. – DKNguyen Dec 02 '22 at 16:07
  • Your comment about noncitizens is mostly incorrect. Even if the Court overrules all its substantive due process precedents, it's hard to think of a single hypothetical state law that would, as a result, become regarded as constitutional because it applies only to noncitizens. Nearly all such laws can be struck down on equal protection grounds, and nearly all of the remainder would be held to be federally preempted. – Brian Dec 03 '22 at 01:34
  • @Stančikas It becomes clear if you understand that the Loving decision is what struck down state laws against interracial marriage. Roe vs Wade is what made abortion legal and Dobbs is what struck down Roe vs Wade. – Loren Pechtel Dec 03 '22 at 03:32
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    @DKNguyen not quite. The claim is that it's codified in law as a human right when it isn't. And then claiming that EVERYONE who doesn't share your political affiliation is trying to take that right away, when nothing could be further from the truth. – jwenting Dec 03 '22 at 05:20
  • @jwenting Hmmm. I see. – DKNguyen Dec 03 '22 at 07:40
  • @Brian "Your comment about noncitizens is mostly incorrect. Even if the Court overrules all its substantive due process precedents, it's hard to think of a single hypothetical state law that would, as a result, become regarded as constitutional because it applies only to noncitizens." ??? The privileges and immunities clause protects citizens. The due process clause protects people. The protections of the Bill of Rights operate to a great extent on the conduct of state actors not to invalidate state law (although it sometimes does that too). Equal prot. wouldn't if priv. & immun was the basis. – ohwilleke Dec 05 '22 at 16:00
  • Equal protection alone usually forbids state actors from discriminating against noncitizens. It doesn't need a separate basis (substantive due process or privileges & immunities). – Brian Dec 05 '22 at 16:32
  • @Brian If the right is a function of citizenship (e.g. right to work legally, right to vote, right to enter the U.S. without a visa, right to run for President), then it isn't discrimination within the meaning of the equal protection clause. If incorporation were accomplished through the privileges and immunities clause, then the federal protections of the Bill of Rights would be like the right to vote or the right to run for President. – ohwilleke Dec 05 '22 at 16:34
  • I believe you are conflating two different issues here: whether something is a constitutional right under substantive due process, and to what extent states can treat citizens and noncitizens differently. Certain things have been explicitly ruled to not be protected by substantive due process: for example, Dobbs overruled the precedent that substantive due process applies to abortion. If something is not protected by substantive due process, is your position that states are allowed to say that only citizens can do it? Can states allow only citizens to have abortions? – Brian Dec 05 '22 at 19:36
  • @Brian When a right arises from citizenship, as the protections of the Bill of Rights would under a privileges and immunities theory, then the equal protection clause can't invalidate them on the grounds that they discriminate on the basis of citizenship. – ohwilleke Dec 05 '22 at 22:18
  • I think that's wrong. Perhaps under a privileges and immunities theory, if a state passed a law that violates the first amendment (for example) then only a citizen would have standing to challenge the law, because only a citizen has the rights that are being abridged by the law in the first place. However, once a federal court tells the state that they can't enforce the law, it doesn't mean the state could go on enforcing it against noncitizens. Such disparate treatment would violate equal protection (notwithstanding the fact that privileges and immunities only applies to citizens). – Brian Dec 05 '22 at 23:03
  • @Brian You are simply wrong. There isn't much I can say to convince you. – ohwilleke Dec 06 '22 at 02:57
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In the United States, a lot of things are codified at the state level, and that is mostly the case for marriage: each state defines who can marry whom, any conditions, and the process for the marriage.

Conditions may include the sex or gender of the people to be married, their age (sometimes not the same for the two parties), parental approval for minors, health conditions (some diseases may need to be checked for), where you can marry, whether there needs to be publicity beforehand, etc.

Before the Loving v. Virginia US Supreme Court cases, many states had so-called "anti-miscegenation laws" that made interracial marriage unlawful.

From Wikipedia's page on Interracial marriage in the United States, this little map shows the status when Loving v. Virginia was decided (1967):

Grey, green and yellow designate states which either didn't have such a prohibition or repealed it before Loving v. Virginia.

States colored red are those where the law was overturned by Loving v. Virginia. So they actually had a law that was making interracial marriage illegal at the time, the law no longer applies (and interracial marriages can be performed) since Loving v. Virginia, but it may still be on the books.

If Loving v. Virginia is overturned, then suddenly many states may return to the situation before Loving v. Virginia, and interracial marriages become unlawful. It's possible not all of the states in red on the map would be in this situation (as they may have repealed the law after Loving v. Virginia), but I would be extremely surprised if none were (**Edit: turns out I was wrong, see below).

Now, you wonder, Loving v. Virginia dates from 1967, why would that be overturned now? As explained in ohwilleke's answer the new conservative majority of SCOTUS have already overturned Roe v. Wade (which made abortion legal across the US) in the Dobbs v. Jackson Women's Health Organization case (which likewise, resulted in many laws which either still existed, or where even passed while Roe w. Wade was the law of the land, to suddenly become active again), and they have signaled that other cases related to marriage (like Obergefell v. Hodges, which made same-sex marriage legal across the US) could be invalidated (or probably "should", in their view). The doctrine in those cases being the same as in Loving v. Virginia, that one could be overturned as well, which would lead to existing laws still on the books to become active again, even without anyone actively trying to pass new laws.

That's why the US federal government is trying to codify this: even if SCOTUS says "well Loving v. Virginia isn't valid anymore", federal law will still make those marriages valid. Until some other case gets to SCOTUS arguing that it's not something the US federal government has the power to regulate, of course.

Edit

As pointed out by CGCampbell in comments, apparently all states have repealed existing anti-miscegenation laws (though it took until 2000, 33 years after Loving v. Virginia, to achieve that), so the risk is relatively low, but with the current state of affairs in the US, you never know what a particular state legislature could do. Probably a bit difficult nowadays with the shift in opinion, but recent history has shown that the unthinkable can happen, so better be safe that sorry.

Of course the main goal of legislation currently going through Congress is to protect same-sex marriage, which is in a very similar situation (forbidden by state law in some states, made legal by a SCOTUS decision, based on similar arguments as Roe v. Wade or Loving v. Virginia), but worse: the SCOTUS decision which made it legal was explicitly referenced by SCOTUS members as needing to be re-examined, laws probably still in the books, and voters, even though more favorable to same-sex marriage nowadays than they were a few years ago, still quite far from the levels of acceptation of interracial marriage.

Interracial marriages are probably not at as much risk as same-sex marriages, but still, better safe that sorry.

ShadowRanger
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jcaron
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    This answer also omits mention of racism in US politics. Perhaps it goes without saying. I feel like it’s omitting the central point. – Todd Wilcox Dec 01 '22 at 13:36
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    @ToddWilcox, At the time my parents were married, a majority of Blacks supported anti-miscegenation laws. Both sides of my extended disowned them. While there were 'racial' reasons behind that (and I heard many those expressed growing as I was obviously a magnet for such things), it is somewhat besides the legal point and political point. The Loving vs Virginia decision was made against that backdrop already. – ouflak Dec 01 '22 at 14:29
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    Actually, from my understanding of what I read, all states have actually repealed their anti-miscegenation laws, Alabama was the last to do so, but did it in 2000. So, if Loving v. Virginia were somehow overturned, any States that wanted to re-outlaw racially mixed marriages would need to enact new legislation. – CGCampbell Dec 01 '22 at 16:57
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The primary purpose of this bill was to protect same-sex marriage rights that Obergefell v. Hodges created.

Nobody was talking about interracial marriage

Interracial marriage is not an issue anyone wants to reopen. Gallup, for instance, shows interracial marriage at 94% support among Americans, which marks a significant turnaround from the 8% when Gallup first tracked it. Nor did the Supreme Court suggest it was something they wanted to revisit. The Dobbs ruling explicitly rejected any suggestion of this (page 74 of the PDF)

And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

What did Justice Thomas actually say? Starting Page 118

The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Oberge fell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.”

And Justice Kavanaugh wrote this in his concurrence (page 133)

First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.

Thomas was ranting about what he noted was a belief in "substantive due process" in the three cases cited. Loving v Virginia would still be unconstitutional for other reasons

Loving was premised on both the Equal Protection Clause and the Due Process Clause. Even if you reject substantive due process, you could still find that Loving reached the correct result on the basis of the Equal Protection Clause. After all, the law literally treats people differently on the basis of their race. Two white people can get married, but a white person and a black person cannot. Even the most conservative jurists would deem such a law unconstitutional.

Using a popular issue to mask a thornier one

The main thrust of the Respect for Marriage Act was to protect Obergefell v. Hodges (which Thomas did mention). That ruling legalized same-sex marriage and is not as popular as interracial marriage (71% as of June 2022). The problem for proponents has been that, in the interim, another debate about how far religious liberty can protect one's views has cropped up. One major case was Maskercake Bake Shop, where the owner of a store who declined to make a cake celebrating a same-sex marriage was punished by the state. The Supreme Court ruled that unconstitutional, but only in the narrowest of cases (he has since then been fined again for not making a transgender cake).

The RFMA does contain some religious liberty clauses, but, as opponents noted, would do nothing about the broader issues raised by Mastercake

The bill’s new sections on religious liberty provide no new meaningful protections. Its provision that “nonprofit religious organizations,” including churches, mosques, and synagogues, shall not be required to provide goods or services for the “solemnization or celebration of a marriage” is a fig leaf. The real-world legal disputes regarding the “solemnization or celebration of a marriage” involve government authorities trying to force individuals — bakers, florists, web designers — to violate their consciences by performing work that they believe celebrates same-sex marriage. Conscientious objectors have had to spend years and fortunes trying to invoke these protections. The new law would do nothing to stop this kind of harassment. It merely says that existing protections such as the First Amendment and the Religious Freedom Restoration Act (RFRA) will continue to exist. In fact, by excluding conscience protections adopted under state law, it could be read to bar states from offering broader protections for religious liberty, thus turning the bill in practice into a one-size-fits-all federal mandate.

A defeated amendment by Mike Lee (R-UT) would likely have made the bill more palatable to people on the Right by bolstering religious protections. Democrats, however, have openly tried to remove those parts of the Religious Freedom Restoration Act, hence why they rejected Lee's amendment.

It also allows the injection of charges of racism

Finally, I think it is horribly racist to say that inter-racial couples cannot marry. Which is exactly what people who voted against this bill did. Again, read the bill and remember that true conservatives want as little government in their lives as possible which is exactly what we did in supporting it.

Machavity
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    Speaking as someone whose parents were married in a state where miscegenation was illegal (renegade judge issued them a license - likely aware of how the pending SC case was going to go anyway), this answer, along with rhoonah's deleted answer, are far more accurate than anything else stated here. – ouflak Dec 01 '22 at 20:29
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This have been legal throughout the United States since at least the 1967 U.S. Supreme Court (Warren Court) decision Loving v. Virginia (1967) that held that anti-miscegenation laws were unconstitutional via the 14th Amendment adopted in 1868.

I suspect that it may be other goals than just to protect a typical interracial marriage that in these days unlikely to be questioned. These may be securing more ground for the same sex marriages, or just one political force trying to convince the society that another is going after the basic human rights. May also be that there is some strange legacy stuff remaining since the early dawn of USA that still needs to be be cleaned up.

Stančikas
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    I'm having a hard time reading this answer. It does not seem to answer the question (paraphrased "why is legal protection needed in 2022?"), but rather side-stepping to a related but insufficient point (paraphrased "legal protection exists since 1967"). It's not clear whether the second paragraph ("It may be other goals...") refers to the 1967 situation with which the answer begins or the 2022 situation of the question. The closing sentence ("This explains why the top answer …") seems to suggest the answer does not address the question at all. Can you please [edit] it to clarify? – MisterMiyagi Dec 01 '22 at 10:15
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    From the other answers appearing now looks like I should undelete mine. – Stančikas Dec 02 '22 at 09:48