Why would interracial marriages need legal protection in USA in 2022?

Question

Today it was in the news (for example at the Washington Post) that the U.S. Senate has passed a bill to protect interracial marriages.

Among other things, this bill would require that people are considered married in any state as long as their marriage was valid in the state where it was performed. This seems a bit odd because, as far as I know, there is no jurisdiction in USA that attempts to operate under 1950's laws regarding race relations.

Why would interracial marriages need legal protection in the United States?

Answer 1

Because, in the recent Supreme Court opinion in the Dobbs case, the legal reasoning that Justice Alito used to overturn Roe v. Wade can reasonably be concluded to logically imply that Loving v. Virginia, which held that bans on interracial marriage were unconstitutional, should also be overturned.

This is because Dobbs severely constrains and disfavors the substantive due process doctrine and the right to privacy upon which both the Roe and Loving decisions relied, even though it claims to limit its holding only to abortion.

But, a concurring opinion by Justice Clarence Thomas in Dobbs v. Jackson Women's Health Organization argued the Court "should reconsider" the Obergefell decision which protects same sex marriage and is closely analogous in legal reasoning to Loving v. Virginia. Justice Thomas basically concludes that the substantive due process doctrine which Justice Alito argues can be overcome by a legitimately governmental interest in the case of abortion is more fundamentally unsound in all cases.

Incidentally, Justice Thomas has also been the primary advocate on the court for not resorting to the due process clause of the 14th Amendment in the other part of the substantive due process doctrine that Justice Alito leaves unscathed, which is the use of this doctrine to justify the application of most provisions of the Bill of Rights to state and local governments (also called the "incorporation" doctrine). Justice Thomas believes that the incorporation doctrine should instead flow from the privileges and immunities clause of the 14th Amendment rather than from its due process clause, which would have the most significant practical effect of denying the protection of the Bill of Rights vis-a-vis state and local governments to people who are not citizens of the United States.

Also, politically linking protections for same sex marriage (which has majority public support) with protections for interracial marriage (which has overwhelming public support now, although it is unpopular at the time that it was decided) made the bill harder to oppose politically.

Answer 2

In the United States, a lot of things are codified at the state level, and that is mostly the case for marriage: each state defines who can marry whom, any conditions, and the process for the marriage.

Conditions may include the sex or gender of the people to be married, their age (sometimes not the same for the two parties), parental approval for minors, health conditions (some diseases may need to be checked for), where you can marry, whether there needs to be publicity beforehand, etc.

Before the Loving v. Virginia US Supreme Court cases, many states had so-called "anti-miscegenation laws" that made interracial marriage unlawful.

From Wikipedia's page on Interracial marriage in the United States, this little map shows the status when Loving v. Virginia was decided (1967):

Grey, green and yellow designate states which either didn't have such a prohibition or repealed it before Loving v. Virginia.

States colored red are those where the law was overturned by Loving v. Virginia. So they actually had a law that was making interracial marriage illegal at the time, the law no longer applies (and interracial marriages can be performed) since Loving v. Virginia, but it may still be on the books.

If Loving v. Virginia is overturned, then suddenly many states may return to the situation before Loving v. Virginia, and interracial marriages become unlawful. It's possible not all of the states in red on the map would be in this situation (as they may have repealed the law after Loving v. Virginia), but I would be extremely surprised if none were (**Edit: turns out I was wrong, see below).

Now, you wonder, Loving v. Virginia dates from 1967, why would that be overturned now? As explained in ohwilleke's answer the new conservative majority of SCOTUS have already overturned Roe v. Wade (which made abortion legal across the US) in the Dobbs v. Jackson Women's Health Organization case (which likewise, resulted in many laws which either still existed, or where even passed while Roe w. Wade was the law of the land, to suddenly become active again), and they have signaled that other cases related to marriage (like Obergefell v. Hodges, which made same-sex marriage legal across the US) could be invalidated (or probably "should", in their view). The doctrine in those cases being the same as in Loving v. Virginia, that one could be overturned as well, which would lead to existing laws still on the books to become active again, even without anyone actively trying to pass new laws.

That's why the US federal government is trying to codify this: even if SCOTUS says "well Loving v. Virginia isn't valid anymore", federal law will still make those marriages valid. Until some other case gets to SCOTUS arguing that it's not something the US federal government has the power to regulate, of course.

Edit

As pointed out by CGCampbell in comments, apparently all states have repealed existing anti-miscegenation laws (though it took until 2000, 33 years after Loving v. Virginia, to achieve that), so the risk is relatively low, but with the current state of affairs in the US, you never know what a particular state legislature could do. Probably a bit difficult nowadays with the shift in opinion, but recent history has shown that the unthinkable can happen, so better be safe that sorry.

Of course the main goal of legislation currently going through Congress is to protect same-sex marriage, which is in a very similar situation (forbidden by state law in some states, made legal by a SCOTUS decision, based on similar arguments as Roe v. Wade or Loving v. Virginia), but worse: the SCOTUS decision which made it legal was explicitly referenced by SCOTUS members as needing to be re-examined, laws probably still in the books, and voters, even though more favorable to same-sex marriage nowadays than they were a few years ago, still quite far from the levels of acceptation of interracial marriage.

Interracial marriages are probably not at as much risk as same-sex marriages, but still, better safe that sorry.

Answer 3

The primary purpose of this bill was to protect same-sex marriage rights that Obergefell v. Hodges created.

Nobody was talking about interracial marriage

Interracial marriage is not an issue anyone wants to reopen. Gallup, for instance, shows interracial marriage at 94% support among Americans, which marks a significant turnaround from the 8% when Gallup first tracked it. Nor did the Supreme Court suggest it was something they wanted to revisit. The Dobbs ruling explicitly rejected any suggestion of this (page 74 of the PDF)

And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

What did Justice Thomas actually say? Starting Page 118

The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Oberge fell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.”

And Justice Kavanaugh wrote this in his concurrence (page 133)

First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.

Thomas was ranting about what he noted was a belief in "substantive due process" in the three cases cited. Loving v Virginia would still be unconstitutional for other reasons

Loving was premised on both the Equal Protection Clause and the Due Process Clause. Even if you reject substantive due process, you could still find that Loving reached the correct result on the basis of the Equal Protection Clause. After all, the law literally treats people differently on the basis of their race. Two white people can get married, but a white person and a black person cannot. Even the most conservative jurists would deem such a law unconstitutional.

Using a popular issue to mask a thornier one

The main thrust of the Respect for Marriage Act was to protect Obergefell v. Hodges (which Thomas did mention). That ruling legalized same-sex marriage and is not as popular as interracial marriage (71% as of June 2022). The problem for proponents has been that, in the interim, another debate about how far religious liberty can protect one's views has cropped up. One major case was Maskercake Bake Shop, where the owner of a store who declined to make a cake celebrating a same-sex marriage was punished by the state. The Supreme Court ruled that unconstitutional, but only in the narrowest of cases (he has since then been fined again for not making a transgender cake).

The RFMA does contain some religious liberty clauses, but, as opponents noted, would do nothing about the broader issues raised by Mastercake

The bill’s new sections on religious liberty provide no new meaningful protections. Its provision that “nonprofit religious organizations,” including churches, mosques, and synagogues, shall not be required to provide goods or services for the “solemnization or celebration of a marriage” is a fig leaf. The real-world legal disputes regarding the “solemnization or celebration of a marriage” involve government authorities trying to force individuals — bakers, florists, web designers — to violate their consciences by performing work that they believe celebrates same-sex marriage. Conscientious objectors have had to spend years and fortunes trying to invoke these protections. The new law would do nothing to stop this kind of harassment. It merely says that existing protections such as the First Amendment and the Religious Freedom Restoration Act (RFRA) will continue to exist. In fact, by excluding conscience protections adopted under state law, it could be read to bar states from offering broader protections for religious liberty, thus turning the bill in practice into a one-size-fits-all federal mandate.

A defeated amendment by Mike Lee (R-UT) would likely have made the bill more palatable to people on the Right by bolstering religious protections. Democrats, however, have openly tried to remove those parts of the Religious Freedom Restoration Act, hence why they rejected Lee's amendment.

It also allows the injection of charges of racism

Finally, I think it is horribly racist to say that inter-racial couples cannot marry. Which is exactly what people who voted against this bill did. Again, read the bill and remember that true conservatives want as little government in their lives as possible which is exactly what we did in supporting it.

Answer 4

This have been legal throughout the United States since at least the 1967 U.S. Supreme Court (Warren Court) decision Loving v. Virginia (1967) that held that anti-miscegenation laws were unconstitutional via the 14th Amendment adopted in 1868.

I suspect that it may be other goals than just to protect a typical interracial marriage that in these days unlikely to be questioned. These may be securing more ground for the same sex marriages, or just one political force trying to convince the society that another is going after the basic human rights. May also be that there is some strange legacy stuff remaining since the early dawn of USA that still needs to be be cleaned up.