I'm Loving It

In a discussion of the Prop 8 trial in California--a pretty complex case about the constitutionality of a proposition that's against same-sex marriage--William N. Eskridge Jr. and Darren Spedale (it's so complex it took two people to write the article) state:

Cooper's team also argues that overturning Proposition 8 would undermine democracy by nullifying the will of the people. Voters adopted the state constitutional amendment in November 2008 specifically to overturn a decision by the California Supreme Court legalizing gay marriage the previous June. But the U.S. Constitution is supposed to trump current opinion sometimes, as when the Supreme Court struck down state laws barring different-race marriage in Loving v. Virginia in 1967. Most Americans did not agree with that result. Was Loving wrong? This is a legal landmine, an argument that could blow up in the judge's face if he gets near it. Judge Walker will not go there.

Really? Loving was unpopular? The public favored miscegenation laws in the late 60s?

What about this: from Richard Posner's long book review (I recommend the whole thing) in The New Republic about mixed-marriage laws:

By 1967, anti-miscegenation laws were found only in the southern and border states plus Delaware and Oklahoma, and in that year the Supreme Court, in Loving v. Virginia (a suit by a black-white couple—the man being the white, thus raising fewer hackles), invalidated the laws. (Actually, the outcome in Loving had been clearly anticipated by the Supreme Court three years earlier in a case called McLaughlin v. Florida, which somehow failed to attract much attention.)

The Court had been skittish about taking on an issue that was so emotional in the South and was linked by southerners with school desegregation, which the Supreme Court had ordered in Brown v. Board of Education and which white Southerners believed was bound to promote miscegenation. But by 1967 southern resistance to civil rights had been weakened to the point where removing the last stick from the bundle of Jim Crow laws would not create a furor.

[....]

The most interesting legal aspect of the history of miscegenation laws is the support it provides for the proposition that the meaning of the Constitution can change—although the words do not change—because of changes in the environment. In 1868, when the Fourteenth Amendment was ratified, the best interpretation of it was that bans on interracial marriage were constitutionally permissible. Interracial marriage was opposed by the vast majority of people in all parts of the United States. Two-thirds of the forty-eight American states and territories had such laws. Marriage was thought to be a state prerogative, and “freedom to marry” would not have been considered one of the liberties protected against arbitrary state action by the Fourteenth Amendment’s due process clause. And the core of the concept of equal protection of the laws was merely that states could not withhold police protection from a group (namely the blacks in the South) on racial grounds. Only a few radical Republicans believed that blacks were the social equals, as distinct from the political equals, of whites, or that the equal protection clause was intended to make them the social equals of whites. The prevailing view was that blacks should have the rights of citizens, not that they should be protected against all forms of governmental discrimination. And finally and perhaps most importantly, the idea that anti-miscegenation laws did not deny the equal protection of the laws because they punished the white and the black violator the same, though it strikes modern judges as wooden, fitted (just as the “separate but equal” formula of Plessy v. Ferguson did) the formalistic bent of late nineteenth-century American judicial thought and the judges’ concomitant reluctance to base their decisions on social realities. But ninety-nine years after the ratification of the Fourteenth Amendment, it was clear to the Supreme Court Justices and indeed to most judges and lawyers outside the South that the anti-miscegenation laws violated the amendment. I think they were right. The language of the amendment was unchanged. But the language was open-ended. Closure was supplied by the social and political environment, and when that changed, the meaning changed.