It depends entirely on how extreme the right wing majority of the Supreme Court is at any given time.
Chief Justice Earl Warren, Eisenhower appointee and bitter disappointment to lovers of the status quo (the Koch Brothers’s loveless father Fred was a charter member of the “Impeach Earl Warren” John Birch Society, which arose after Brown v. Board ruled in 1954 that segregation in schools was unconstitutional) wrote the 9-0 opinion that struck down laws like Virginia’s 1924 Racial Integrity Act. Here’s the Republican chief justice starting off the unanimous opinion in Loving v. Virginia, one of the cases Trump’s base courting followers are prepared to revisit with an eye to overturning, returning the power to violate post-Civil War amendments to the Constitution in the name of illimitable States’ Rights and “federalism”:
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
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.[n1] 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.
In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court[p3] of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:
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 marriage. The fact that he separated the races shows that he did not intend for the races to mix.source
How could any God-fearing, authoritarian personality having white person, in the throes of racial pride, dispute this common sense 1959 opinion of a totally non-racist Virginia judge?
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 marriage. The fact that he separated the races shows that he did not intend for the races to mix.
Originalists, or textualists, harken back to the “original intent” of the Framers of the Constitution in 1789, gleaned from the centuries old writings they left, which are, according to them, as sacred and inviolable as the other articles of their deep religious faith, as indisputable as the fact that God dictated much of the Old and New Testaments. Originalism, by going back to 1789, removes focus from the evolution of the document, the evolution of our democracy, and the freedom and equality-expanding amendments starting right after the Civil War and continuing through a woman’s right to vote, more than a half century later, and, eventually, starting in 1965, the actual federal enforcement of most of these rights.
Here are the two Virginia statutes that were violated by this illegal interracial couple, pursuant to the totally non-racist Racial Integrity (Election Integrity?) Act of 1924:
The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 258 of the Virginia Code:
Leaving State to evade law. — If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.
Section 259, which defines the penalty for miscegenation, provides:
Punishment for marriage. — If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.
Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all marriages between “a white person and a colored person” without any judicial proceeding,[n3] and §§ 20-54 and 1-14 which,[p5] respectively, define “white persons” and “colored persons and Indians” for purposes of the statutory prohibitions.
Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.[n5] Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period.[n6] The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a “white person” marrying other than another “white person,”[n7] a prohibition against issuing marriage licenses until the issuing official is satisfied that[p7] the applicants’ statements as to their race are correct,[n8] certificates of “racial composition” to be kept by both local and state registrars,[n9] and the carrying forward of earlier prohibitions against racial intermarriage.[n10]source
Here is the state of Virginia’s argument, summarized by Warren:
Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.source
Here’s an abstracted bit of the Court’s reasoning:
The Virginia Supreme Court of Appeals, in its opinion, stated that the legitimate purpose of Virginia’s anti-miscegenation law was to “preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride.” Accordingly, the reason for Virginia’s law rests solely racial discrimination.
Racial classifications must be subjected to the most rigid scrutiny. Here, Virginia’s law serves no purpose other than to further invidious racial discrimination. As such, the law clearly violates equal protection. The State’s argument that the law is “applied” equally to whites and African-Americans must be rejected because same-race couples are not punished criminally.source
Oral arguments in the Loving case were heard fifty-five years ago today.
The 1967 Loving v. Virginia ruling unanimously overturned the Supreme Court’s previous unappealable last word on the subject, the definitive, unanimous 1883 ruling in Pace v. Alabama, where this Alabama law was upheld as perfectly constitutional in the United States of America:
If any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years.
The question presented in 1883 was:
Since the state law of Alabama had a different set of statutes covering adultery and fornication between a white couple and a Black couple than that between an interracial couple, did the two year imprisonment of the interracial couple Tony Pace and Mary J. Cox violate their equal protection rights under the 14th Amendment?
9-0 the Pace court replied — nah! The unappealable law of the land for over eighty years, and the facts of Pace were arguably even “worse” than the facts in Loving, in that case the husband, Tony Pace, a Negro, had tried to marry a WHITE WOMAN!