Loving vs. Virginia: Its Application
by Richard Harrold,
a journalist from central Michigan who covers the courts and legal
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Originally published in alt.politics.homosexuality;
Reprinted by permission
This is a new thread that may be helpful to many people. It
contains a corrected paragraph due to a factual error in the
original post. Shawn has raised the question (I'm paraphrasing
despite the quotes) "The Loving v. Virginia decision dealt
with laws banning interracial marriage. So how can this decision
apply to the issue of same-sex marriage?"
Now, I'm no attorney, but it seems that a basic lesson in
Constitutional law is needed before going further. Because Shawn's
question might just as well be "What does collective
bargaining have to do with free speech?"
To start simply with the collective bargaining issue, let's
first look at Madison School Dist. v. Wisconsin Employment
Relations Commission 429 US 167 (1976).
In this case, the Madison School District was involved in labor
negotiations with its teacher union. During an open meeting, a
nonunion teacher complained to the school board about a clause in
the contract under current negotiation. The union objected to the
nonunion teacher speaking because he was nonunion and not the
recognized representative of the union. Eventually the union filed
a complaint against the teacher for interfering with the
collective bargaining process.
The Wisconsin Supreme Court upheld a decision by the Wisc. Emp.
Rel. Com. indicating the board had committed a:
prohibited labor practice in violation of Wisconsin law by
permitting the nonunion teacher to speak at its public meeting
because that constituted negotiations by the board with a member
of the bargaining unit other than the exclusive
The matter went to the USSC which concluded:
1. The circumstances do not present such danger to
labor-management relations as to justify curtailing speech in the
manner ordered by the WERC. Pp. 173-176.
(a) Where it does not appear that the nonunion teacher sought
to bargain or offered to enter into any bargain with the board or
that he was authorized by any other teachers to enter into any
agreement on their behalf, there is no basis for concluding that
his terse statement during the public meeting constituted
negotiation with the board. Although his views were not consistent
with those of the union, [429 U.S. 167, 168] communicating such
views to the employer could not change the fact that the union
alone was authorized to negotiate and enter into a contract with
the board. P. 174.
(b) Moreover, since the board meeting was open to the public,
the nonunion teacher addressed the board not merely as one of its
employees but also as a concerned citizen, seeking to express his
views on an important decision of his government. Where the board
has so opened a forum for direct citizen involvement, it may not
exclude teachers who make up the overwhelming proportion of school
employees and are most concerned with the proceedings. Whatever
its duties as an employer, when the board sits in public meetings
to conduct public business and hear the views of citizens, under
the First Amendment it may not be required to discriminate between
speakers on the basis of their employment, or the content of their
speech. Pp. 174-176.
2. The WERC's order, being designed to govern speech and
conduct in the future and not merely to punish past conduct, is an
improper prior restraint on teachers' expressions to the board on
matters involving the operation of schools. Pp. 176-177.
Obviously, at the time of the Constitution's creation, there
were no labor organizations, nor such a thing as a
"collective bargaining process." And some of us might
even go so far as to say that the "Founding Fathers",
the capitalists that they were, would probably personally be
against labor unions.
But that's precisely the point of having a constitution -- to
avoid having individuals making decisions based upon personal
The nonunion teacher had a right to Free Speech and the right
to "petition" his government representatives, I.e. the
school board. The union tried to show that his speech ought to be
curtailed because it interfered with labor negotiations: but the
court rightly held that the nonunion teacher's speech did not
interfere. This case has established a precedent to prevent
parties from filing what are called SLAPPs, or Strategic Lawsuits
Against Public Participation. A SLAPP is filed to silence critics
who speak out at public meetings. If a SLAPP is successful, it has
a "chilling effect" on Free Speech. Which means this
case applies if you go to a GVSU Board of Trustees meeting to
complain about the bad food in the food commons -- even if what
you say is essentially untrue. The food commons operator cannot
sue you for interfering with its business because you complained
about its operations to the board of trustees.
So now we turn to Loving with the question: how does a case
about interracial marriage apply to same-sex marriages?
We have to first begin with what the case was all about. Bear
Loving v. Virginia 388 US 1 (1967) was indeed a unique case, a
fact that was not lost upon the court. Chief Justice Warren wrote:
This case presents a constitutional question never addressed
by this Court: whether a statutory scheme adopted by the State of
Virginia to prevent marriages between persons solely on the basis
of racial classifications violates the Equal Protection and Due
Process Clauses of the Fourteenth Amendment.1 For reasons which
seem to us to reflect the central meaning of those constitutional
commands, we conclude that these statutes cannot stand
consistently with the Fourteenth Amendment.
So right off the bat, we see that although the court later
makes the comment that marriage is a fundamental right, the
purpose of the Loving decision was to determine whether Virginia's
laws banning interracial marriage met muster with the Fourteenth
Why did Virginia think its laws were constitutional? For a
number of reasons. First of all, the law did three things. It
banned people of different races from marrying each other within
Virginia. It banned people of different races from leaving
Virginia to get married and then return to Virginia to live as
married people. And it made violations of this law a criminal
The judge who tried the Loving's case and who suspended their
25 year sentence if they would leave the state and never return
"Almighty God created the races white, black, yellow,
malay and red, and he placed them on separate continents. And but
for the interference with his arrangement there would be no cause
for such marriages. The fact that he separated the races shows
that he did not intend for the races to mix."
Talk about legislating from the bench! This judge deigned to
know the will of God!