On Wednesday, the United States Supreme Court dismissed Hollingsworth v. Perry for lack of standing. In doing so, the Court expressly noted that "the public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry." Some have suggested that in doing so the Court punted, choosing the easy way out rather than confronting the issue squarely, as it did in Loving v. Virginia. In that 1967 case, the Supreme Court legalized interracial marriage. Instead of wistfully yearning for Loving, critics would do well to remember Loving's predecessor, Naim v. Naim. There, the Virginia Supreme Court held the marriage between Han Say Naim, a Chinese man, and Ruby Elaine Naim, a white woman, to be void under Virginia law.
Most Americans have never heard of Naim v. Naim because, in 1955 the U.S. Supreme Court declined to accept review of case challenging Virginia's ban on interracial marriage. Why, after boldly striking down laws requiring segregation in public schools in Brown v. Board of Education, did the Court studiously avoid the issue of interracial marriage? According to Associate Justice Tom Clark, the Court worried that "one bombshell at a time is enough." Brown had so inflamed public opinion that the Court feared that a sweeping decision on a controversial issue like interracial marriage would prompt a wave of backlash that would engulf the Court and undermine its legitimacy.
It would take thirteen years for the Court to return to the question of interracial marriage, which it did in Loving. By then, the majority of states had repealed or invalidated their laws prohibiting "race-mixing," leaving only the Southern states as holdouts. The country had slowly shifted towards greater acceptance of interracial unions (or at least the view that such unions should not be illegal). Accordingly, when the Court struck down Virginia's interracial marriage ban, it was following public opinion -- not leading it.
As the same-sex marriage debate has moved to the national stage, Loving v. Virginia has achieved almost mythic status as an example of the Court's fortitude and courage on important social issues, like same-sex marriage. However, the history of Naim v. Naim offers a more complicated account. Naim makes clear that Loving was not so much an exercise in courage as it was an effort to consolidate an emergent national consensus on a once-divisive issue.
The history of Naim and Loving provides a useful frame for understanding the Court's decision in Perry. In dismissing the case on standing grounds, the Court displayed the same caution and concern that characterized its refusal to reach the issue of interracial marriage in Naim. Perhaps the Perry Court was mindful of getting too far ahead of the public, and prompting a backlash that could either stall the progress of marriage equality and other LGBT civil rights, or diminish its own legitimacy. Either way, the Court stayed its hand, leaving the question for another day.
The question that should occupy us going forward is not whether the Court should have acted boldly, deciding the question of same-sex marriage once and for all. Instead, we should focus our attention on whether there will be the kind of progressive, state-level action seen in the period between Naim and Loving. If the marriage equality movement continues to succeed in incrementally bringing states into the same-sex marriage fold, the Court, as it did in 1967, will likely act upon that national consensus, legalizing same-sex marriage across the board. Until then, it is worth remembering that before there was Loving, there was Naim v. Naim and 13 years of activism and action to change hearts and minds.