On the Loving case

Here Joanna Grossman begins an analysis of the Loving case, decided in June, forty years ago.

Here are some earlier posts on the case, in which the Supreme Court held Virginia's bad on inter-racial marriage to be unconstitutional, reversing the Virginia Supreme Court's opinion written by Justice Carrico.

Thursday, May 29, 2003
History of mixed-race marriage in the U.S.

This review of Race Mixing: Black-White Marriage in Postwar America by Renee Romano and Interracial Intimacies: Sex, Marriage, Identity, and Adoption by Randall Kennedy includes this passage regarding the litigants in the Loving v. Virginia case:

"But by 1967, when the Supreme Court struck down bans on interracial marriage in Loving v. Virginia, only sixteen states still had such laws. In Loving v. Virginia, a white man, Richard Loving, and his black wife, Mildred Jeter, were arrested in Virginia on the grounds that their marriage license from the District of Columbia was invalid and that they had violated the sinister-sounding Racial Integrity Act. They were given a choice of a one-year jail term or exile from Virginia for twenty-five years by the lower court judge, Leon Bazile, who declared: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.... The fact that he separated the races shows that he did not intend for the races to mix." (One wonders if conservative Virginia Christians noticed the judge's dismissal of the biblical story of the common origin of humanity in favor of the non-Christian Deist theory of "polygenesis.") In his majority opinion for the Supreme Court, Chief Justice Earl Warren ignored the Fourteenth Amendment and argued that the Virginia law violated the equal protection clause and fundamental privacy."

Saturday, June 28, 2003
The effects of the Texas sodomy case on Virginia law

n this post, I wrote:

Virginia likewise has criminalized sodomy, fornication, and lewd cohabitation. The most recent signs from the Virginia Supreme Court, oddly enough, are that some or all would uphold the constitutionality of these statutes. Justice Kinser cited them in her concurring opinion in the Arlington County "domestic partner" benefits case (in MS Word) from 2000. The majority cited the fornication and cohabitation statutes as the basis for the wrongful discharge claim in Mitchem v. Counts (in MS Word), also decided in 2000.

The viability of these criminal statutes is an element in a recurring issue in domestic relations cases, where one party may assert the constitutional privilege against self-incrimination to questions about sex acts other than with his or her spouse. The Virginia Court of Appeals' unpublished Goldmann case is one example of the self-incrimination issue.

Judge Merhige held that the fornication and cohabitation statutes were unconstitutional in Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985), but this opinion was vacated on appeal for lack of standing, 782 F.2d 1202 (4th Cir. 1986), in an opinion by Judge Wilkinson. Roanoke gay rights lawyers also lost a constitutional challenge for lack of standing in the Virginia Court of Appeals, as reported in this 2000 opinion.

This one post has generated quite a number of hits from Googlers searching for the Virginia law of fornication.

On Thursday and Friday, the Daily Press reported here and here, the Roanoke Times reported here, the Richmond Times-Dispatch reported here, the Virginian-Pilot reported here, and Attorney General Jerry Kilgore conceded in this press release that the Lawrence case will have some effect on the laws of Virginia.

The likely result of the Lawrence case applied in Virginia is that the sodomy law is unconstitutional as applied to same-sex or opposite-sex scenarios, and the fornication and co-habitation statutes are probably also invalid. In fact, I would argue, the next time I see something like Mitchem (or Zysk v. Zysk), that the public policy of these statutes is trumped by the Constitution, and therefore the plaintiff has no claim or the defendant has no defense based on the illegality of fornication. (The Zysk case is the one where the Virginia Supreme Court held that a woman could not sue for contracting a loathsome social disease from her boyfriend because her injuries were the result of her illegal conduct in having sex with him.)

Tim Sandefur has this interesting post comparing the Lawrence decision with the Loving case, which struck down Virginia's ban on interracial marriage.

Tuesday, April 12, 2005
Justice Carrico and deference to the legislature

As I have recently read Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving, it gave me occasion to read the Virginia Supreme Court opinion in the Loving case, written by Justice Carrico.

In that opinion, Justice Carrico applied the Court's earlier opinion in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (1955), and refused to recognize that the U.S. Supreme Court's intervening decision in McLaughlin v. State of Florida, 379 U.S. 184 (1964), justified a different course. Loving v. Com., 206 Va. 924, 147 S.E.2d 78 (1966). Rejecting the policy arguments of the appellants, Justice Carrico wrote:

"A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate."

Justice Carrico joined in the dissent in the case of Lockhart v. Commonwealth Educ. Systems Corp., 247 Va. 98, 439 S.E.2d 328 (1998). In his dissent, Justice Compton explained that the majority had bypassed the statutory prohibition in then-Va. Code 2.1-725 against new causes of action based on the public policy of the Virginia Human Rights Act.

I compare these opinions with the analysis of the Court in Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005). Although not cited in Martin, the Court had recently applied the fornication statutes, in Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000), where the Court found that those statutes provided independent basis in public policy for the plaintiff's wrongful discharge claim, thereby avoiding the limitations of the amended section 2.1-725. In Mitchem, again with Justice Carrico joining in the dissent, the Court characterized the fornication statutes as among the "[l]aws that do not expressly state a public policy, but were enacted to protect the property rights, personal freedoms, health, safety, or welfare of the general public," on which a wrongful discharge claim could be based. After the intervening decision by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), however, the same Court was willing in Martin to conclude that the fornication statute was irrational, and therefore unconstitutional. I suspect that Justice Carrico would have dissented in Martin, as well.

Sunday, January 15, 2006
On Philip Hirschkop

Law.com has this wild profile of Virginia lawyer Philip Hirschkop, retiring at age 69, and most famous for his role in the Loving case.

The article says in part:

"In one six-year span, 17 disciplinary complaints were brought against him at the Virginia State Bar -- a distinction Hirschkop bears proudly. The complaints, he says, were 'never for screwing a client -- only for making public statements' about pending litigation."

The article also says:

"He also donned a 10-gallon hat and cowboy boots to win the acquittal of Texas oil magnates Nelson Bunker Hunt and W. Herbert Hunt in a federal wiretapping case.

The decision to represent the archconservative oilmen was a tough one for Hirschkop, says John Kenneth Zwerling, an Alexandria lawyer whose wedding Hirschkop had officiated at while wearing a coonskin cap. 'The [Hunt brothers] bought him a membership in the John Birch Society,' he says. 'And he bought them a membership in the ACLU.'

The Hunt brothers and other famous clients helped provide Hirschkop with the kind of money a radical lawyer could only dream of, especially 30 years ago. In his best years, Hirschkop says, he's earned well above $1 million."

Saturday, October 07, 2006
The California appeals court decision rejecting same-sex marriage

Here is the Marriage Cases decision from the intermediate appeals court in California.

The dissent quotes heavily from Justice Carrico's opinion in the Loving case, making the point that the majority's reliance on history is no more valid than what Justice Carrico wrote, which was overturned by the U.S. Supreme Court.

Worth reading is the concurring opinion, which says in part:

"I also write separately to identify a major difficulty with all attempts at reasoned dialogue about this subject. There is a legitimate and meaningful disagreement in this country, and in many places around the world today, about what marriage is and should be. Over the last 30 years we have seen a gradual reconfiguration of family; merging models of family exist alongside traditional models. We have also witnessed an expansion of personal freedom to express who one really is that is desirable if each person is to become who he or she was created to be. The roots of the disagreement over what marriage should be necessarily intertwine cultural, societal, and religious ideas. There is a great tendency, out of zeal to eliminate genuine inequities, to be swayed emotionally and to overreach in applying legal principles. My colleague has done so in his dissent. Justice Kline writes passionately of the “profound nature of the liberty interest” at stake (dis. opn., post at p. 47) and of “autonomy privacy,” (dis. opn., post at pp. 9, 22) but does not cite a single case where the asserted liberty or privacy interest has been identified as he would have us recognize. Most of the cases he relies upon are cases where the rights at issue have been discussed in the context of marriage as it has been understood historically, or in situations that criminalize acts of sexual intimacy. In the end the dissent advocates, from cases that do not lead inexorably to such a result, the existence of a fundamental right to participate in an institution that as historically defined excludes such individuals."