FMI Special Project: Loving v. Virginia SCOTUS Briefs

In contemporary times, the Zeitgeist—as dictated by Social Justice Warriors—holds that there is only one correct position on social issues, and if one diverges from the viewpoint deemed acceptable, then one is morally flawed.  Positions on certain issues—such as civil rights—that are accepted as absolute truths today, however, were hotly contested issues yesteryear.  The battle where the debates on the issues most palpably occurred has been—and is still today—waged at the Supreme Court of the United States.

To preserve American history and to educate the public about the debates of yesteryear, the Foundation for the Marketplace of Ideas, Inc., is undertaking a massive and important project:  to locate the briefs filed with SCOTUS for the most controversial cases and to publicly disseminate them.

The first such briefs to be released are those of Loving v. Virginia, 388 U.S. 1 (1967), in which SCOTUS decided that laws that prohibit interracial marriage are unconstitutional.

In Loving, Attorney General T. W. Burton of North Carolina filed a mere six-page amicus curiae brief to support the position of the appellee.  Noteworthy about it is that Burton argues that if the judicial philosophy of originalism is honored, then the Fourteenth Amendment to the U.S. Constitution cannot be interpreted to mean that states are prohibited from banning interracial marriage.  Argues Burton colorfully, “Unless * * * the Fourteenth Amendment is construed as a grand commission which constitutes the federal courts as a species of judicial privateers to sink every state ship in sight if they do not like the cut of its sails, then the historic position asserted by Virginia is clearly sound.”

Further argues Bruton, “There is no equalitarianism in the field of biology, anthropology and geneticism. * * * If a state feels like the life of its people is better protected by a policy of racial integrity as to both races, or for any other race for that matter, then it has the right to legislate in such field.  The fact that the state’s conclusions may differ from the conclusions of other groups should not affect the matter unless minority groups are entitled to preferential constitutional privileges contrary to the judgment of the majority.”

The brief of the Commonwealth of Virginia, filed by Attorney General Robert Y. Button of Virginia, is fifty-two pages in length and includes an appendix that is twenty-nine pages in length.  Like the amicus curiae brief of North Carolina, the Virginia brief invokes originalism.  Noteworthy, too, is that the Virginia brief argues that marriage is not a right at all because “it rests in contract alone between individuals, and no other person has a right to contract it. * * * No one man has any right to marry any woman he pleases.”

Virginia also argues that since previous cases upheld the validity of anti-miscegenation laws, that the doctrine of stare decisis should be honored—especially since a number of state and federal courts have so ruled.

The Virginia brief also delves into the scientific arguments as to how races of people are different and why it might be unfavorable to mix them.  Carleton Coon is cited as an authority on the matter.  Quoting Dr. Gordon W. Allport—a professor of psychology at Harvard University—, Virginia argues, “Intermarriages are wrong * * * because they are often based on the mistaken premise that, in this way, universalism and human brotherhood is assured.  Not only has this theory not been proved—it has rather, been exploded.  Two nothings are still nothing.  A plus and a minus simply cancel each other out.  Nothing of any significance is gained by such a marriage.  If all humans on a given day gave up all their differences (an utterly fantastic idea), we might have half a chance.  But in the world as we know it such an idea is impracticable if not absurd.”