May 2009, Volume 95, Issue 3
Deciding on Doctrine: Anti-miscegenation Statutes and the Development of Equal Protection Analysis
by Rebecca Schoff
95 Va. L. Rev. 627 (2009)
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This note explores why the Warren Court chose the path it did to invalidate anti-miscegenation laws. Using evidence from the papers of three of the Justices, it argues that the Court was very close to announcing a per se rule against racial classifications, as Stewart’s concurrence advocated in the context of criminal laws. More generally, this note analyzes the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: Assuming that Justices are in agreement as to which party should prevail, what factors, legal and nonlegal, can influence a Court’s preference for one doctrine over another? Had the Court followed Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. Loving’s now-controversial place in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction between equal protection, due process, and fundamental rights. Ultimately, this paper argues that the Warren Court showed a preference for a less rule-like approach to equal protection analysis in part because the conditions surrounding desegregation exacerbated the difficulty of analyzing the scope of rules. Recovering the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to understand how and why Courts resolve such problems in particular ways.
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