after-words.org

The Court - Blog Archive - Loving v. Virginia and Its Impact On Canadian Jurisprudence
May 14th, 2008
by Christopher Bird

When Mildred Loving died on May 2nd, she left behind one of the landmark cases in 20th-century common law. Loving v. Virginia 388 U.S. 1 affirmed the Equal Protection Clause contained within the 14th Amendment of the United States Constitution, and struck a blow against bigotry and legally enshrined racism.

Beyond its importance in the American context, however, Canadian courts have cited it as precedent in a number of important Canadian legal decisions.

R. v. Morgentaler [1988] 1 S.C.R. 30
Both the Ontario Court of Appeal and then the Supreme Court cited Loving as an example of the right to privacy and the right to choose one’s spouse being the first in a series of decisions, all protected in American caselaw, ultimately leading to the decision to abort a pregnancy. Although the Ontario Court of Appeal decided that the right to abort a pregnancy was not fundamental enough to be protected under s.7 of the Charter, the Supreme Court reversed the Ontario court’s decision...

Miron v. Trudel [1995] 2 S.C.R. 418
This 1995 case drew an analogy between common-law spousal relationships and legal marriages, reading common-law spouses into the definition of “spouse” in the Ontario Insurance Act. Interestingly, Loving was cited in Justice Gonthier’s dissent, which rejected the majority’s conflation of common law spousal relationships and legal marriages. Gonthier J.’s reliance on Loving is initially puzzling given that Loving is fundamentally about the expansion and protection of civil rights; it seems a more natural fit to be cited by the majority. However, Gonthier J.’s reliance on Loving is informed by Chief Justice Earl Warren’s assertion in that case that “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The implication of this, Gonthier J.explained, was that marriage was “both a basic social institution and a fundamental right which states can legitimately legislate to foster.” Thus, Gonthier J. argued, using Loving as evidence, that the practice of marriage was so important that it should not be eroded by according common-law relationships the same protections.....

Loving and Same-Sex Marriage In Canada
Of course, any discussion of Loving in a Canadian context cannot be complete without discussing same-sex marriage rights, as anti-miscegenation laws obviously analogize to the disallowance of same-sex marriage. In EGALE Canada Inc. v. Canada (Attorney General) 2001 BCSC 1365, the British Columbia Supreme Court ruled that the legal status of marriage did not extend to same-sex couples. When the petitioners cited Loving as an analogous case, the court responded by arguing “[i]n context, Loving was concerned with rights. That is not the case in the petitioners’ circumstances. Their right to marry a person of opposite sex is not in question.” [...]

In contrast to EGALE, Loving was successfully analogized by the Ontario Court of Appeal in Halpern v. Canada (Attorney General) [2003] O.J. No. 2268, where the court directly cited Loving in applying the test for violations of s. 15(1) of the Charter created in Law v. Canada [1999] 1 S.C.R. 497. In Halpern, the court dismissed the argument that marriage was traditionally defined as being between a man and a woman by saying “whether a formal distinction is part of the definition itself or derives from some other source does not change the fact that a distinction has been made.” The court then drew on Loving in positing that anti-miscegenation laws were “traditional” despite being delineated along racial grounds. This argument formed part of the basis for the pro-same-sex-marriage decision in Halpern, where prohibition of same-sex marriage was found to violate s. 15(1).

Interestingly, in using Loving as precedent for the defence of same-sex marriage rights, Canadian courts have gone much further than American courts....

Loving for All (PDF)
freedomtomarry.org

By Mildred Loving*
Prepared for Delivery on June 12, 2007,
The 40th Anniversary of the Loving vs. Virginia Announcement
When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn't
to make a political statement or start a fight. We were in love, and we wanted to be
married.
We didn't get married in Washington because we wanted to marry there. We did it there
because the government wouldn't allow us to marry back home in Virginia where we
grew up, where we met, where we fell in love, and where we wanted to be together and
build our family. You see, I am a woman of color and Richard was white, and at that
time people believed it was okay to keep us from marrying because of their ideas of who
should marry whom.
When Richard and I came back to our home in Virginia, happily married, we had no
intention of battling over the law. We made a commitment to each other in our love and
lives, and now had the legal commitment, called marriage, to match. Isn't that what
marriage is?
Not long after our wedding, we were awakened in the middle of the night in our own
bedroom by deputy sheriffs and actually arrested for the "crime" of marrying the wrong
kind of person. Our marriage certificate was hanging on the wall above the bed.
The state prosecuted Richard and me, and after we were found guilty, the judge declared:
""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." He sentenced us to a year in prison, but offered to
suspend the sentence if we left our home in Virginia for 25 years exile.
We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a
cause. We were fighting for our love.
Though it turned out we had to fight, happily Richard and I didn't have to fight alone.
Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and
so many good people around the country willing to speak up, we took our case for the
freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the
Supreme Court ruled unanimously that, "The freedom to marry has long been recognized
as one of the vital personal rights essential to the orderly pursuit of happiness by free
men," a "basic civil right."
2
My generation was bitterly divided over something that should have been so clear and
right. The majority believed that what the judge said, that it was God's plan to keep
people apart, and that government should discriminate against people in love. But I have
lived long enough now to see big changes. The older generation's fears and prejudices
have given way, and today's young people realize that if someone loves someone they
have a right to marry.
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that
I don't think of Richard and our love, our right to marry, and how much it meant to me to
have that freedom to marry the person precious to me, even if others thought he was the
"wrong kind of person" for me to marry. I believe all Americans, no matter their race, no
matter their sex, no matter their sexual orientation, should have that same freedom to
marry. Government has no business imposing some people’s religious beliefs over
others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard's and my name is on a court
case that can help reinforce the love, the commitment, the fairness, and the family that so
many people, black or white, young or old, gay or straight seek in life. I support the
freedom to marry for all. That's what Loving, and loving, are all about.