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Brian Powell
Department of Sociology
powell@indiana.edu
812-855-7624

Michael Grossberg
IU Center for Law, Society and Culture
grossber@indiana.edu

Dan Conkle
IU School of Law - Bloomington
conkle@indiana.edu
812-855-4331

Aviva Orenstein
IU School of Law - Bloomington
aorenste@indiana.edu
812-855-8736

Last modified: Wednesday, June 6, 2007

IU experts comment on legacy of Loving v. Virginia Supreme Court ruling

EDITORS: June 12 marks the 40th anniversary of the landmark Loving v. Virginia U.S. Supreme Court ruling, which overturned a ban in Virginia that had prohibited whites from marrying non-whites. The ruling invalidated similar bans in more than a dozen other states. The four Indiana University scholars below discuss the continuing impact of the ruling on American society. Broadcast media interested in remote, on-camera studio interviews should contact Tracy James, IU Media Relations, at 812-855-0084 and traljame@indiana.edu.

Will same-sex couples be welcomed to the "family" next? Brian Powell, a professor in IU Bloomington's Department of Sociology, sees strong parallels between the American public's growing acceptance of interracial marriages and its growing acceptance of issues involving gay and lesbian couples. Powell's research examines the sociology of the family.

  • The Loving v. Virginia ruling and the subsequent accelerated acceptance of interracial marriages attests to Americans' willingness to expand their definition of the family, Powell said. Americans have expanded their view in many ways, including how they view mothers who work outside of the home. Powell is seeing this same trajectory concerning views of same-sex couples and same-sex marriage. "Interracial marriage in the 1950s was something people didn't talk about. It was something people were uncomfortable talking about. As long as there was silence, there couldn't be acceptance. But since Loving v. Virginia, there has been much more open discussion of this topic. We see a similar pattern today with same-sex marriage and civil union. These topics were not part of our national conversation until around a decade ago. But the discourse has changed dramatically and has become more open in the past few years."
  • The demographic factors that predicted acceptance of interracial marriage through the years are very similar to the factors that predict support for same sex marriage. The factors include higher levels of education, gender -- women were more supportive of more expansive definitions of the family -- and age, young people are more likely to challenge the boundary. "The arguments that currently are used to oppose same-sex marriage closely mirror the arguments that were used in the past to oppose interracial marriage," Powell said. "It's evident that debates regarding same sex marriage are very reminiscent of the debates in the past about interracial marriage."

Powell is the Allen D. and Polly S. Grimshaw Professor of Sociology at IUB. He can be reached at 812-855-7624 and powell@indiana.edu. Information about Powell's recently published study about biracial families can be found at http://newsinfo.iu.edu/news/page/normal/5418.html.

Loving v. Virginia is the case that made marriage a constitutional right. "Earl Warren says in his opinion, 'Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.' The case was about interracial marriage, but the ruling went beyond the issue of racial bans by establishing marriage as part of the due process and equal protection guarantees of the Constitution," said Michael Grossberg, professor in the IUB Department of History and adjunct professor in the IU School of Law Bloomington.

  • "The other thing to note about this case is that it illustrates how legal change doesn't always come from the top down," Grossberg said. "This case came about because of two people who felt their rights had been violated." The couple was Mildred Jeter and Richard Loving. She was black and he was white. They met in Virginia in the 1950s, decided they were in love, and went to Washington to get married. When they went back to Virginia, they got caught and were faced with either serving a year in prison or leaving the state. "Initially they moved back to Washington, but later they decided this was just wrong and went back to Virginia to challenge the ban," Grossberg said. "So part of the story is that it's individuals striving for their rights that creates change in the legal system. It's an example of what legal scholars call 'rights consciousness."
  • "Because Loving v. Virginia made broad statements about the rights of individuals to marry, it has been the basis for legal arguments against bans on gay marriage," Grossberg said. "For instance, one way lawyers argue is by analogy. So if you say that two people of the same sex getting married is analogous to two people of different races, you use Loving v. Virginia. But the case that gets used in favor of banning gay marriage is Reynolds v. United States, which upheld a law banning polygamy. In that case you are saying that same-sex couples are like polygamous Mormon families. This is one way past cases have framed the current debate."

Grossberg is the Sally M. Reahard Professor of History. He also is the co-director of the IU Center for Law, Society, and Culture. His research focuses on the relationship between law and social change, particularly the intersection of law and the family. He is currently co-editing the Cambridge History of Law in the United States, a three-volume collection of articles analyzing the central substantive and methodological developments in American legal history from the colonial period to the present. He can be reached at grossber@indiana.edu.

From IU Law's Constitutional and family law experts Dan Conkle and Aviva Orenstein.

  • "In Loving v. Virginia, the Supreme Court protected the fundamental right to marry and precluded the discriminatory denial of this right to interracial couples. Not surprisingly, Loving now is being cited as support for a constitutional right to same-sex marriage. The Supreme Court might eventually accept this argument, but probably not soon, because the legal and social stage for this development has not yet been adequately developed." Conkle, the Robert H. McKinney Professor of Law, teaches Constitutional law, First Amendment law, and law and religion. His research addresses constitutional law and theory, religious liberty, and the role of religion in American law, politics and public life. He is the author of numerous articles, as well as a book titled Constitutional Law: The Religion Clauses (Foundation Press, 2003). He can be reached at 812-855-4331 or conkle@indiana.edu.
  • "Loving v. Virginia -- perhaps the best named Supreme Court case ever -- overruled a state law criminalizing the marriage between blacks and whites. The state court that upheld the anti-miscegenation law appealed to religion and the 'natural' division of the races. The Court observed that '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.' The Loving Court rejected the argument that the rule treated blacks and whites equally, since both groups were prohibited from interracial marriage. Instead, the Court recognized the ban as invidious racial discrimination. The Court's rejection of formalistic pseudo-equality, its recognition of the animus underlying the prohibition, its portrayal of marriage as a fundamental right and its dismissal of arguments that appealed to nature or God's law have all invited comparisons to the issue of gay marriage." Orenstein teaches family law and has been active in opposing the SJR-7, the marriage amendment to the Indiana Constitution. She can be reached at 812-855-8736 or aorenste@indiana.edu.

To schedule a remote, on-camera interview in IUB's Enberg Studio, please contact Tracy James, IU Media Relations, 812-855-0084 and traljame@indiana.edu. For additional assistance, please contact Elisabeth Andrews, IU Media Relations, 812-855-2153 and ecandrew@indiana.edu; and Debbie O'Leary, IU School of Law-Bloomington, at 812-855-2426 and devo99@indiana.edu.