After numerous appeals, the Lovings’ case arrived before the Supreme Court. In a landmark decision, the court unanimously found anti-miscegenation statutes to be unconstitutional, rejecting Virginia’s argument that the law’s equal application to the races protected the law from the Fourteenth Amendment’s “proscription of all invidious racial classifications.” The Court held that anti-miscegenation laws violated both the equal protection clause and the due process clause of the Fourteenth Amendment because they were intended to “maintain White Supremacy,” and thus served no legitimate state interest. The Court also held that marriage, as one of the “basic civil rights of man,” is a fundamental right that “resides with the individual and cannot be infringed by the State.”
The Court’s decision in Loving v. Virginia was a victory in the fight to eliminate Jim Crow laws. More recently, the decision was crucial in the struggle for marriage equality, laying the foundation for Obergefell v. Hodges (2015) in which the Supreme Court found bans on same-sex marriage to be unconstitutional.
Loving
ALEKSANDAR HEMON
I come from a place where a notion of “mixed marriage” has existed for a while. That place is Bosnia and Herzegovina, mainly known for the worst of the wars of Yugoslavia, where I was born and lived before it all came apart and I ended up in Chicago, Illinois. “Mixed marriage” (miješani brak) referred to a marriage between two people of different ethnicities, and I happened to be a product of one of those. There were no laws against “mixed marriage” when I was growing up, and the concept was not particularly frowned on, at least not in Sarajevo, my hometown. On the contrary, these marriages were cherished as evidence that the ideology of brotherhood and unity successfully bonded the myriad ethnicities of the socialist Yugoslavia—Bosnia and Herzegovina being its most diverse part—and helped people overcome their ethnic differences. Some say that up to 40 percent of marriages in Sarajevo before the war were interethnic, which was deemed to be a mark of its cosmopolitan openness.
When I was young, I hated the term mixed marriage. For one thing, I’d rail, unless you’re marrying yourself, every marriage is inescapably mixed. Indeed, the whole point of getting voluntarily attached to other people is to mix with someone who is not you—however you may define or perceive yourself. Moreover, mixed marriage implied that what was being mixed was not two people but some larger categories—ethnicity, race—to which the people congenitally belonged. While two people may have felt that, by way of love, they reached a degree of connection that rendered boundaries and differences between them irrelevant, or at least less important, their involuntary belonging to their respective categories superseded all their desires and agency. The label “mixed marriage” was culturally available to convince them that no human connection could ever transcend those essential differences. “Mixed marriage” suggested that people were deprived of emotional agency because their feelings were inherently nationalized. No one could ever fully own their love.
In retrospect, the mixed marriages of the multiethnic socialist Yugoslavia look positively quaint, for with the advent of the basest nationalism that would destroy the country, the concept acquired a more sinister value. In nationalist imagination, as practiced in the Balkans (and now in the Trumpist United States), the nation is defined by some mystical, transcendental, historical essence, shared by its members and acquired at birth. That essence is the locus of difference and the source of inherent superiority over some other nation (ethnicity, race); that essence, which is both metaphysical and biological, must be kept pure lest the nation be weakened by foreign contamination. Individual people contain the essence; it is what connects them to the other members of the nation, so that mixing with others (who are arranged as individuals around their own, different national essence) severs the connection with their national kin. The ideological victory of the Balkan nationalists therefore resulted in cultural and political devaluation of mixed marriage to the point that outside a few urban centers that contain relatively mixed ethnicities, it is effectively prohibited due to local segregationist policies that, among other things, might prevent children of different ethnicities from attending the same school. With all that, there are no segregation laws as such in Bosnia and Herzegovina, nor are mixed marriages illegal. They’re just considered unnatural by the nationalists and actively discouraged by their rhetoric and blatant discrimination.
All this is to say that my understanding of Loving v. Virginia is at least partly determined by a historical experience acquired thousands of miles away from the American history and reality in which I now live. Mildred and Richard Loving’s marriage was deemed to be mixed and therefore subject to anti-miscegenation law of the Commonwealth of Virginia. What deep connection they might have felt between them was invalid because, as the local court wrote in its ruling on the motion to vacate in the case of Loving v. Virginia, “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.” The monstrous logic of Judge Leon M. Bazile, the author of the ruling, is painfully familiar to a Bosnian like me, as is its natural and transcendental essentialism; the presumed eternal quality of the “arrangement”; and the alleged danger of mixing that could be redressed only by vigilant segregation—up to and including ethnic/racial cleansing and genocide. The absurd cruelty of such logic ought to have been self-evident, but it wasn’t until the Supreme Court ruled against the Commonwealth of Virginia, holding that “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
For more than twelve years, I’ve been married to an African American woman; we have two children together. One of the many things that bonds me to Teri, my life partner, is the way our personal and family histories overlap in our hatred of bigotry. Her maternal grandfather was a lawyer who was friends with Justice Thurgood Marshall; his children registered voters in the South in the 1950s. Her paternal grandfather, who in the 1930s had an integrated dental office in segregated Pensacola, Florida, was known to stand up to white men with a shotgun in his hands. Race and American racism are our life, our bedtime and morning conversations. Hence we appreciate the fact that a generation ago in large parts of this damaged country, our marriage would have been illegal and our daughters illicit. When we drive through the territories of the former eastern Confederacy (including Virginia, to see my in-laws in Pensacola), we tell our girls that a generation ago, their mother and father would have risked arrest and imprisonment just for sleeping together. The last time Teri and I drove down to Florida with our girls, we talked to them about Loving v. Virginia—about the meaning it has in the history of our family and of this country. They’re still young, only beginning to learn about the terrible, complex history of America, but they could admire Mildred and Richard’s love and the courage that came with it, just as they could see the exquisite value of loving so soundly defeating bigotry.
Soon, we hope, they will be able to understand the importance of the work the ACLU did in undoing American racist laws, the work without which our lives would be much different. And with that, they might be able to learn that laws can and must change to reflect the indelible realities of human life and love.
TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969)
February 2019 marked the fiftieth anniversary of this landmark First Amendment case, whose holding established that students and teachers do not shed their constitutional rights to free speech at “the schoolhouse gate.” Tinker has its origins in the intensely divisive national debate surrounding US involvement in the Vietnam War. The teenaged students who became the petitioners in this case, two siblings and their friend, first sought counsel from the Iowa Civil Liberties Union after their school suspended them for wearing black armbands to school to demonstrate their support for a Ch
ristmas truce. Initial negotiations with the school district failed, and the ACLU agreed to take the case on behalf of the students and their parents. Thirty-year-old attorney Dan Johnston, at the time just a year out of law school, argued and won this case before the Supreme Court.
The Black Armband
ELIZABETH STROUT
The year was 1981; I was twenty-five years old and a law student. That spring, Alexander Haig, the secretary of state of the United States, came to speak to the graduating class of my university. I decided to protest. I had never gone to a protest before. I had essentially missed the sixties, living in isolated areas of this country, but here was a man I found to be dangerous, and so I decided to wear a black armband and stand with a number of other students outside the entrance to the dome where he was speaking. At the last minute, I was sent to the back entrance—on my own—by the person organizing us. Perhaps he thought I was disposable, not angry enough? Anyway, off I went alone to the back door.
The back door is where Haig entered. A black car pulled up and a man got out; suddenly there was Alexander Haig, walking into the back door. I yelled something—I can’t remember what—and stuck my arm with the black armband on it up into the air. And this is what I think I saw: he glanced at me and a tiny smile came to his mouth, and I thought, Oh my God, this makes him feel more important!
Doesn’t matter.
What matters is that I had the right to wear that black armband; I had the right to stand there with it on and protest this man. If I was nervous as a twenty-five-year-old adult, then just imagine what courage it took for a thirteen-year-old schoolchild to do the same sixteen years earlier in Des Moines, Iowa.
* * *
Mary Beth Tinker was the daughter of civil rights activists. Her father was a Methodist pastor, and her parents had been instrumental in getting the swimming pool in Des Moines desegregated, and they had traveled to the Deep South where they took part in many aspects of the civil rights movement. They came home and told their children about these things—about, as Mary Beth Tinker says in an ACLU podcast in 2009, “little old ladies being shot at in the night.”
At the age of thirteen, Mary Beth Tinker decided, along with her brother, John Tinker, aged fifteen, and a friend, Christopher Eckhardt, aged sixteen, to wear black armbands to school to protest the Vietnam War. The school sent them home. In fact, the school, having heard of their plans, had already put into place a policy that anyone wearing a black armband would be suspended from school until they returned without the armband. The school believed that the very existence of these black armbands was disruptive. It is interesting to note that at this time, there were other things students wore in that school; for example, some students wore the Iron Cross, a symbol of the swastika. These were not considered by the school to be disruptive. But the black armbands were. So the students wearing them went home. Eventually they came back to school and dressed in black for many weeks as a sign of protest. The school could do nothing about this.
But Mary Tinker’s father and Christopher Eckhardt’s father decided, on behalf of these children, to sue the school district on the grounds that the students had a First Amendment right to wear black armbands. The US District Court dismissed the complaint and therefore upheld the school’s position, as did the court of appeals. The case was argued in front of the US Supreme Court in 1968, and a decision came down in favor of the right to wear armbands in 1969.
The school’s policy claimed that the wearing of these armbands would incite disruptions within the student body, causing problems of discipline. Oddly (to me), the district court’s decision relied on an earlier decision by the Fifth Circuit Court of Appeals, Burnside v. Byars (1966), that had held that wearing symbols like these armbands was constitutionally protected except for when such a thing “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” Using this standard, the district court upheld the decision of the school district, saying the school district had the right to make the decision that the armbands would cause a discipline problem and the court would not interfere. The court of appeals upheld this decision.
When the case reached the Supreme Court, it spoke to the district court’s decision, saying, “But in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Justice Abe Fortas, who wrote the opinion, also said:
It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.”
The “Tinker Test,” as set forth in the Tinker opinion, asks: Did the speech or expression of the student “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school?”
Justice Fortas continued:
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone.
The constitutional rights of students in schools was not a new issue for our Supreme Court. In 1943, at the height of World War II, Justice Robert Jackson, who later was the lead prosecutor in the Nuremberg trials, wrote a decision that upheld the right of students to not salute the flag (West Virginia v. Barnette, 1943). Given that war was ripping across the world and the country was feeling great patriotism, this was an extraordinary and brave decision.
But what is somehow especially moving to me in the Tinker decision is Justice Fortas’s use of a quotation by Justice William Brennan in an earlier case. Speaking for the Court in Keyishian v. Board of Regents two years earlier, Justice Brennan wrote:
The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.… The classroom is peculiarly the “marketplace of ideas.” The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, [rather] than through any kind of authoritative selection.”
Look at that. In the defense of students and their rights—in American schools—the Supreme Court wrote that “this nation’s future depends” on the protection of a student’s right to free expression. The fundamental intelligence involved in this thinking is conspicuously striking.
Because of Tinker v. Des Moines, these students now had the constitutional right to wear armbands. These are hugely important decisions of our right to free speech and the First Amendment. Attempts have been made to override them, but none of them have yet been successful.
* * *
When I look back to the day I raised my arm in the face of Alexander Haig, I did not think about the fact that my right to do so was based on courageous decisions by our Supreme Court. I just did it because I knew, as an American, I could do this. My actions seem more important to me now than they did back then. There was a youthful confidence to me that day: we had the right to do this. But times have changed, and we must now worry about the erosion of these rights. One can only hope—ferociously—that the Supreme Court will continue to have these open-minded (and open-hearted) beliefs as our country goes forward.
We can hope.
GREGORY V. CITY OF CHICAGO (1969)
Gregory v. City of Chicago is unusual in that its holding does not matter. What makes it a significant First Amendment case is Justice Hugo Black’s concurrence discussing the heckler’s veto: when a speaker’s opponents threaten violence against the speaker, causing the government to silence the speaker in order to avoid that violence. It is therefore a form of government censorship. In an early articulation of the concept, the Court ruled in Terminiello v. City of Chicago (1949) it was impermissible to arrest a speaker simply because that person’s message stirred up discontent. The co
ncern is that the government will pick favorites, allowing pro-government figures to speak while silencing critics under the pretext of avoiding unrest. Gregory therefore sits squarely within the ACLU’s ongoing battle against government censorship, especially when attacks on free speech arrive cloaked in benign concern for the speaker’s well-being.
Crowd Work
ADRIAN NICOLE LEBLANC
Case law moves slowly. That movement requires extraordinary persistence—not only countless hours of effort on the part of advocates but also a refusal to give up in the face of repeated failure. The entertainment business provides excellent training: for performers, persistence is the practice and rejection the norm. Indeed, the need for persistence is perhaps even more the case for stand-up comedians than for legal activists. Bits tend to take shape very slowly. Their refinement occurs through repeated interaction with audiences, who are rich in instruction—their sighs, their contempt, their silence, their adulation, their impatience, their excitement and boorishness. Crowd work is a reciprocal tutelage, which, ideally, holds things in common with the practice of democracy. How to speak as oneself and hold the attention of others? And persuade the group of facts they don’t see? Finding one’s voice, the right moment to pause, or the phrase to elicit a certain quality of laughter can take comedians months, sometimes years.
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