CSP 19: Gender, Race and Gay Rights in the Obama Era Fall 2009
	Race and Marriage: Loving v. Virgina (continued) Wednesday, October 28, 2009

Today we shall continue talking about the construction of race and the role that law plays in legitimizing certain ideologies about race. We shall continue the discussion starte with Professor Foreman about the Pascoe article  "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America."

Perez v Lippold (1948) was the first case (after Reconstruction) that a state Supreme Court (California) invalidated a statewide miscegenation law. Interestingly, the rationale for the decision was split 3 ways among the 4-person majority who agreed that their state's miscegenation law was unconstitutional, but did not agree on much else. Two justices declared that racial categories were irrational, one justice thought that any law which had racial classifications should be stricken and the last member of the majority thought that the state law infringed upon religious liberties because some religions condoned interracial marriage. This case shows how the ideas of both the culturalists and racialists were incorporated into the law.

Loving v. Virginia is both a due process and an equal protection case. It is the case where the Supreme Court says that the right to marry is fundamental, so that Virginia's "Act to preserve racial integrity" must be declared unconstitutional because it burdens this fundamental right to marry. Thus the law violates the Due Process Clause because it burdened a fundamental right.. Loving is also the cases where the Supreme Court rules that the classifications made by the Virginia law are illegal because they were "designed to maintain White Supremacy," which is not a legitimate governmental aim. Thus the law violates the Equal Protection Clause because the state made a racial classification for a reason which is not good enough to withstand strict scrutiny. The end result of Loving is to show how the modernist racial ideology of "color blindness" or ignoring race became reified in legal discourse.