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Monday, 13 June 2016

Another look at Loving v. Virginia

Today, in honor of Loving Day (which would have been celebrated yesterday, but for the modern habit of moving the observance of all holidays to Monday), The White Man will revisit the case which brought it about: Richard Perry Loving, Mildred Jeter Loving v. Virginia.
Right off the bat, there's a problem: look at the photo of the famous couple, described everywhere as being of separate races:

Note that whilst they are described as "white" and "black" respectively, it is evident that they have the same skin tone just by comparing where their bodies touch. Mildred Jeter, at the time Richard Loving impregnated her, was basically as white as he was. What she had, and he hadn't, was verified African and Native American Ancestry, in addition to the majority European ancestry that they both shared; and under the law then current in Virginia, their entire lives must needs conform to that almost invisible distinction.

This is very important: had it not been that all Virginians were already divided, first by convention and then by law, into discrete categories of Pure European and Not Pure European, there never would have been a case. Mildred's European ancestry, despite contributing the majority of her genome, counted for nothing, admixed as it was with the blood of supressed races. Thus the whole foundation of the Racial Integrity Act, which Loving v. Virginia overturned, was a distinct theology of racial purity which deliberately sought to ignore the reality of the racial mixing plainly evident just by looking at the co-defendants.  It is the height of hypocrisy that none of Mildred's European ancestors were ever prosecuted for raping their African slaves, yet her lawful husband was prosecuted for sleeping with her, with her full consent. It was a law that had no chance of surviving in a righteous nation.

Loving v. Virginia was long thought to be the culmination of Supreme Court decisions that invalidated laws meant to prevent fornication and adultery; but these were to resume under a new court after a 20-year hiatus. So rare was homosexuality in the mid-1960's, it's unlikely that anyone at the time would have been able to predict that in her own lifetime (and she only lived another four decades), Mildred Loving would be able to point out, to widespread acclaim, that by filing suit against the state that denied the validity of the one-flesh relationship she shared with her husband, she was laying the grounds for the invalidation of all laws that denied equal treatment in the eyes of the law to people of the same sex who cohabited in the same way she and Richard had.

Ironically, the eight years since Mildred Loving's death have still failed to eliminate the classification into which she is always placed, now usually referred to as "African-American," but recent months have seen the proliferation of people who are still pigeonholed by race, but left free to change their gender at will. Thus Virginia's Act could yet stand, with modern Lovings fully evading its force merely by claiming to be of the same sex. The bizarre twisting of reality gets ever worse: race is as immutable as ever, but it is sex that is now malleable to the will of the person claiming it.

Backing up to the Racial Integrity Act, we see that it was specifically written to criminalize relationships such as that of the Lovings, which under common law had never been illegal:

"This bill aims at correcting a condition which only the more thoughtful people of Virginia know the existence of.
 It is estimated that there are in the State from 10,000 to 20,000, possibly more, near white people, who are known to possess an intermixture of colored blood, in some cases to a slight extent it is true, but still enough to prevent them from being white.
 In the past it has been possible for these people to declare themselves as white, or even to have the Court so declare them. Then they have demanded the admittance of their children in the white schools, and in not a few cases have intermarried with white people.
 In many counties they exist as distinct colonies holding themselves aloof from Negroes, but not being admitted by the white people as of their race.
 In any large gathering or school of colored people, especially in the cities, many will be observed who are scarcely distinguishable as colored.
 These persons, however, are not white in reality, nor by the new definition of this law, that a white person is one with no trace of the blood of another race, except that a person with one-sixteenth of the American Indian, if there is no other race mixture, may be classed as white. "

It is obvious on its face that this law was designed to reserve special rights and privileges to those with no discernible trace of non-European heritage (a loophole having been inserted to allow white people to claim descent from the famous princess Pocahontas).  This approach had already been roundly condemned by Justice White in his McLaughlin v. Florida decision earlier in the decade:

"That a general evil will be partially corrected may at times, and without more, serve to justify the limited application of a criminal law; but legislative discretion to employ the piecemeal approach stops short of permitting a State to narrow statutory coverage to focus on a racial group."

It is quite ironic that the Racial Integrity Act, a product of the American Eugenics Movement, is now so roundly condemned by everyone from Supreme Court Justices on down, whilst the other major achievement of that movement--the suppression of the black race by sterilization and abortion--is still celebrated as a major victory for women, its crowning victory, Roe v. Wade, having been handed down by the same court that overruled the decision of Pace v. Alabama.

Under the Racial Integrity Act, the sanctity of Mildred Loving's bedroom could be invaded by officers hoping to catch her in the act of sleeping with her husband. Under Obergefell v. Hodges, which cited Loving v. Virginia as precedent, the sanctity of her daughter's bathroom stall can now be invaded by any sexual predator claiming to share her gender.

This, we are told, is progress.

One more thing: Obergefell v. Hodges effectively replaced 'race' with 'gender' in evaluating whether any law since Loving v. Virginia can be held to provide equal treatment under the law. Just imagine all the implications of doing this to Associate Justice Potter Stewart's concurring opinion, in which he stated that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

The first result of this ruling being applied in such manner is that no state will be able to continue regulating the depiction nor the exhibition of any part of the human mammary gland (nor will Facebook, or eventually any other interactive website). Better get used to it; it's coming.

And it will be hailed as progress.