In recent debates about the constitutionality of laws banning same-sex marriage, both sides invoke and confront the seminal 1967 Supreme Court case of Loving v. Virginia, which invalidated a Virginia law banning miscegenation. Both sides, however, fail to recognize that Loving is distinguishable on the basis of what rights are at stake, rather than which parties are allowed to marry. Legal developments in the years since 1967 have rendered the right to marriage recognized by the Supreme Court in Loving a nullity in the same-sex marriage debate. In particular, the core rights of marriage that the Court found to be fundamental in 1967 have been recognized outside of the institution of marriage. Changes in laws banning cohabitation and fornication affect marriage precedent that assumes the existence of those laws.
This note adds two contributions to that line of reasoning. The first is an examination of how those changes have affected Loving in particular rather than marriage case law in general. The second is the application of the Glucksberg methodology to the use of Loving as precedent in a fundamental rights analysis. The combination of those observations shows that developments in the law of individual rights recognizing the right to cohabitate and the right to consensual sexual intimacy have stripped marriage of its status as the exclusive domain where those rights could legally be exercised, rendering Loving’s substantive due process language irrelevant to the debate.