By Wendy Kaminer 

Reacting predictably to spate of noose hanging incidents in late 2007, New York governor David Patterson has signed legislation criminalizing display of a noose with intent to harass or threaten because of bias against the usual categories, including race, religion, sex, sexual orientation, disability.  The legislation amended existing law prohibiting cross burning or display of a swastika with similar intent.  All three forms of hate speech are punishable by up to four years in prison.  I have little to add to my earlier discussions about this issue, here and here, except to repeat that last fall the New York Civil Liberties Union promised to “study” the noose display amendment; anyone interested in the results of that study should call the NYCLU at 212.607.3300.

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.