Legal texts

Kevin (Kyoo Sang) Jo

Professor Glen McClish

RWS 600 Assignment: Legal texts

25 November 2013

1. Loving v. Virginia

This case deals with interracial marriage. According to the Virginia’s anti-miscegenation statute, the marriage between Richard Loving (a white man) and Mildred Jeter (a black woman) was illegal. Therefore, the Lovings were charged punishable by a prison sentence of between one and five years. At that time, the trial judge’s opinion clearly shows the social perception of racial discrimination in those days: “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” (117). However, in 1967, the Supreme Court overturned Loving’s conviction dismissing the previous judicial decision that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators could not be construed as racially discriminatory. The court opinion’s main ground is the U.S. constitution, especially the Due Process Clause and the Equal Protection Clauses of the Fourteenth Amendment: “The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. . . classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State” (119). 

2. Bowers v. Hardwick and Lawrence v. Texas

In the Supreme Court’s legal text such as Loving v. Virginia, Bowers v. Hardwick, and Lawrence v. Texas, the opinion was developed with a variety of grounds and previous cases and the conclusion was delivered in the end. The conclusion is very simple, upheld or reversed. In Bowers, the U.S. Supreme Court upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. The majority opinion argued that the Constitution did not confer a fundamental right to engage in homosexual sodomy. On the contrary, the dissenting opinion framed the issue as the right to privacy as follows: “The case before us implicates both the decisional and the spatial aspects of the right to privacy” (124). “Indeed, the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy” (126). 

17 years after Bowers, the Supreme Court directly overruled its decision in Lawrence, and held that anti-sodomy laws are unconstitutional. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive Due Process Clause of the Fourteen Amendment. Justice Kennedy who wrote the majority opinion focused on consensual sexual conduct in a private setting: “The present case does not involve minors. . . . The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” (136). Earlier precedents are a powerful tool to develop grounds for the Court’s assertion. In Lawrence, many previous cases were cited: Griswold v. Connecticut, Roe v. Wade, Carey v. Population Services Int’l, and King v. Wiseman. In addition, the Court cited the Model Penal Code’s recommendations since 1955, the Wolfenden Report of 1963, and a 1981 decision of the European Court of Human Rights.