Today's newspapers carry the obituary for the somewhat accidental civil rights pioneer Mildred Loving, who died last Friday at 68. Loving and her late husband Richard were the plaintiffs in one of the most important civil rights cases ever to reach the Supreme Court. Their exquisitely- and aptly-named case, Loving v. Virginia, brought what was essentially an "equal protection of the law" challenge to a Virginia state law that not only banned but also criminalized interracial marriage. The court unanimously declared that Virginia's anti-miscegenation law was unconstitutional because it violated the Fourteenth Amendment's requirement that state laws not discriminate on the basis of race.

The Supreme Court's decision in Loving was a triumph for not only the Lovings, but for the rights and freedoms of all citizens: it determined that states could not prohibit people from marrying whomever they loved just because they happened to be of a different race. Though the Lovings lived in Virginia, they got married instead in Washington D.C., which did not have an anti-miscegenation law. However, Virginia's law provided that out-of-state interracial marriages were invalid in Virginia. Several weeks later, on July 11, 1958, the New York Times reports, they were arrested in bed for having violated Virginia's Racial Integrity Act. After they pled guilty, they moved to Washington to remain together, but eventually "could stand the ostracism no longer." The ACLU brought their case to the Supreme Court -- and, nine years after they were arrested, the Lovings won.

The entire nation owes a huge debt to Mildred Loving, an unassuming litigant who wanted to marry and live with the man she loved -- and to do so in the community she called her home. Several years ago, at the height of the controversy centering on the Massachusetts Supreme Judicial Court's decision declaring marriage (including gay marriage) a right protected by the state's constitution, I wrote in the Boston Phoenix that the road to equal marriage rights in Massachusetts was paved by Mildred and Richard Loving. The Supreme Court was right in 1967 to ensure marriage rights to interracial couples, and the Massachusetts SJC was right in 2004 to ensure marriage rights to same-sex couples. Our society has come a long way since the time of anti-miscegenation laws, but anti-same-sex-marriage laws like the federal Defense of Marriage Act infringe gay Americans' rights just as fundamentally as Virginia's old law once did. And when one group of citizens is treated differently under the law from others, for no demonstrable reason based in logic and experience, equality under the law cannot be said to prevail. I predict that someday courts all throughout the country will recognize that these laws raise very similar constitutional questions as did the law challenged in Loving v. Virginia. For that, the Lovings will again – or still – merit our thanks. May these modern-day heroes for liberty and equality rest in peace.

         Last July, the city council of Hazelton, Pennsylvania passed several ordinances aimed at ridding the city of illegal immigrants, by penalizing employers who hire them and landlords who provide them with homes.  The ordinances were, in part, responses to an increase in violent crime, which town officials blamed on immigration. 

         The ACLU filed suit in federal court; a two week trial in the case concluded last week, and the city’s new rules are suspended pending the judge’s ruling, expected in May or June.  The closely watched case, Lozano v Hazleton, is one of several similar lawsuits recently filed by the ACLU, which reports that more than 80 cities and towns have passed anti-immigrant laws like the ordinances in Hazelton.

         Protesting the scape-goating of immigrants, ACLU attorneys raised numerous constitutional and statutory issues in the Hazelton case, including due process and equal protection claims; but the ACLU primarily argued that the local, anti-immigrant ordinances were pre-empted by federal law.  “Immigration is a federal responsibility and allowing every city and town across American to set their own immigration policies would create a dysfunctional set of dueling rules and regulations,” Vic Walczak, the lead ACLU attorney in the case asserted. The ACLU stressed that the Constitution locates the power to regulate immigration primarily in the federal government and that the Hazelton ordinances conflicted with numerous federal laws.

         In other words, the ACLU has framed this as a federalism case (a case involving the constitutional division of power between federal and state governments.)  But federalism claims often reflect political calculations, not constitutional principles.   Across the political spectrum, people tend to favor states rights when they support the particular state laws at issue and favor federal power, when they support the federal laws.

         So the Hazelton case prompts a question: if a state or locality enacted an immigration law designed to expand (not contract) the rights or services available to undocumented immigrants, would the ACLU oppose it too, arguing that regulation of immigration was an exclusive federal responsibility? Given the organization’s strong immigrant rights program (which I support), it’s hard to imagine the ACLU opposing a state or local law considered pro-immigrant, regardless of concerns about federalism.
   
         Consider this case:  in 2002, the ACLU registered its strong opposition to a rule issued by the Immigration and Naturalization Service that prohibited state and local facilities from releasing information about INS detainees in their custody.  The ACLU’s letter of protest relied primarily on the claim that the new rules were issued in violation of federal administrative law, but it also noted that federal law in this case did not preempt state authority.

         The Hazelton case and the 2002 controversy over INS rules are easily distinguished, and I’m not suggesting that the ACLU acted or argued improperly in either of them.  I am simply pointing out the pitfalls and politics of federalism arguments.  Take the gay marriage debate.  The federal government enacted an anti-gay marriage law in 1996 (the Defense of Marriage Act, or DOMA,) so naturally proponents of same-sex marriage are state's rights proponents, when marriage is at issue.  Gay rights and civil liberties groups worked hard to defeat a federal constitutional amendment that would have barred the states from legalizing same sex marriage.

         One result of the differences in state and federal law is a two tiered system of marriage in Massachusetts, which is arguably the sort of “dueling” legal scheme that the principle of preemption is supposed to avoid.   In Massachusetts, gay couples enjoy rights accorded all married couples by state law, but they do not enjoy the rights extended to heterosexual couples under federal law, like social security benefits.  In other words, because of the restrictions in federal law, Massachusetts can only offer separate and unequal marriages to gay couples.

         Of course, as a practical matter, a lesser form of marriage for gay people is preferable to no form of marriage at all.   And, as a practical matter, if the legal situation were reversed, with federal law favoring gay marriage and state law opposing it, you can be sure that pro-marriage groups would no longer favor state’s rights; instead they’d argue that state bans on gay marriage were preempted by federal law.  And who could blame them?  The “principle” of federalism is no match for the politics.