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Loving vs. Virginia: Its Application

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by Richard Harrold, a journalist from central Michigan who covers the courts and legal issues.

Originally published in alt.politics.homosexuality; Reprinted by permission

This is a new thread that may be helpful to many people. It contains a corrected paragraph due to a factual error in the original post. Shawn has raised the question (I'm paraphrasing despite the quotes) "The Loving v. Virginia decision dealt with laws banning interracial marriage. So how can this decision apply to the issue of same-sex marriage?"

Now, I'm no attorney, but it seems that a basic lesson in Constitutional law is needed before going further. Because Shawn's question might just as well be "What does collective bargaining have to do with free speech?"

To start simply with the collective bargaining issue, let's first look at Madison School Dist. v. Wisconsin Employment Relations Commission 429 US 167 (1976).

In this case, the Madison School District was involved in labor negotiations with its teacher union. During an open meeting, a nonunion teacher complained to the school board about a clause in the contract under current negotiation. The union objected to the nonunion teacher speaking because he was nonunion and not the recognized representative of the union. Eventually the union filed a complaint against the teacher for interfering with the collective bargaining process.

The Wisconsin Supreme Court upheld a decision by the Wisc. Emp. Rel. Com. indicating the board had committed a:

prohibited labor practice in violation of Wisconsin law by permitting the nonunion teacher to speak at its public meeting because that constituted negotiations by the board with a member of the bargaining unit other than the exclusive collective-bargaining representative.

The matter went to the USSC which concluded:

1. The circumstances do not present such danger to labor-management relations as to justify curtailing speech in the manner ordered by the WERC. Pp. 173-176.

(a) Where it does not appear that the nonunion teacher sought to bargain or offered to enter into any bargain with the board or that he was authorized by any other teachers to enter into any agreement on their behalf, there is no basis for concluding that his terse statement during the public meeting constituted negotiation with the board. Although his views were not consistent with those of the union, [429 U.S. 167, 168] communicating such views to the employer could not change the fact that the union alone was authorized to negotiate and enter into a contract with the board. P. 174.

(b) Moreover, since the board meeting was open to the public, the nonunion teacher addressed the board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. Where the board has so opened a forum for direct citizen involvement, it may not exclude teachers who make up the overwhelming proportion of school employees and are most concerned with the proceedings. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, under the First Amendment it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. Pp. 174-176.

2. The WERC's order, being designed to govern speech and conduct in the future and not merely to punish past conduct, is an improper prior restraint on teachers' expressions to the board on matters involving the operation of schools. Pp. 176-177.

Obviously, at the time of the Constitution's creation, there were no labor organizations, nor such a thing as a "collective bargaining process." And some of us might even go so far as to say that the "Founding Fathers", the capitalists that they were, would probably personally be against labor unions.

But that's precisely the point of having a constitution -- to avoid having individuals making decisions based upon personal biases.

The nonunion teacher had a right to Free Speech and the right to "petition" his government representatives, I.e. the school board. The union tried to show that his speech ought to be curtailed because it interfered with labor negotiations: but the court rightly held that the nonunion teacher's speech did not interfere. This case has established a precedent to prevent parties from filing what are called SLAPPs, or Strategic Lawsuits Against Public Participation. A SLAPP is filed to silence critics who speak out at public meetings. If a SLAPP is successful, it has a "chilling effect" on Free Speech. Which means this case applies if you go to a GVSU Board of Trustees meeting to complain about the bad food in the food commons -- even if what you say is essentially untrue. The food commons operator cannot sue you for interfering with its business because you complained about its operations to the board of trustees.

So now we turn to Loving with the question: how does a case about interracial marriage apply to same-sex marriages?

We have to first begin with what the case was all about. Bear with me.

Loving v. Virginia 388 US 1 (1967) was indeed a unique case, a fact that was not lost upon the court. Chief Justice Warren wrote:

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.1 For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

So right off the bat, we see that although the court later makes the comment that marriage is a fundamental right, the purpose of the Loving decision was to determine whether Virginia's laws banning interracial marriage met muster with the Fourteenth Amendment.

Why did Virginia think its laws were constitutional? For a number of reasons. First of all, the law did three things. It banned people of different races from marrying each other within Virginia. It banned people of different races from leaving Virginia to get married and then return to Virginia to live as married people. And it made violations of this law a criminal violation.

The judge who tried the Loving's case and who suspended their 25 year sentence if they would leave the state and never return said:

"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."

Talk about legislating from the bench! This judge deigned to know the will of God!



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