Commentary Race

Loving Day, Juneteenth, and the Right to Family

Cynthia Greenlee

The anniversary of the Loving case on June 12 and Juneteenth on the 19th should remind us that, within the African-American freedom struggle and broader movements for equality, there has always been a struggle to determine the right to marry, select an intimate partner of one’s choice, and to form the families that we want.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

In June, I celebrate two commemorations that may not make it onto standard calendars of holidays and observances: Loving Day on the 12th and Juneteenth on the 19th.

Each of these days should remind us that, within the African-American freedom struggle and broader movements for equality, there has always been a struggle to determine the right to marry, select an intimate partner of one’s choice, and to form the families that we want.

On June 12, 1967, the U.S. Supreme Court ruled in Loving v. Virginia that Virginia’s Racial Integrity Act, a 1924 law that banned marriages between whites and “coloreds,” was unconstitutional. That law made illegal all formalized unions between whites and non-whites, including Blacks and American Indians. Blatantly eugenic in nature, the act aimed to maintain the purity of whites and accomplish the impossible and retroactive task of “genetic segregation” of populations that had been intermingling since Jamestown and the arrival of the first Africans to the shores of what would become Virginia, in 1619.

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Almost a century earlier, on June 19, 1865, Union troops arrived in Galveston, Texas, bearing news that the Emancipation Proclamation had ended slavery in the rebelling territories more than two years prior. Though there are multiple stories about why such important news hadn’t trickled down to the enslaved people there, a Union General read a decree that there was to be “absolute equality of personal rights and rights of property between former masters and slaves.” (Well, not really: The rest of the executive order came with the warning that the freed people were expected to remain quiet and at the places where they were enslaved, to work for wages and for the very people who had just owned them, and would not be “supported in idleness”—setting up a labor system stacked against them and to the benefit of literate ex-masters with few scruples about using violence.)

So what does Juneteenth have to do with Loving Day? In the Loving case, Mildred Jeter, a woman of mixed Black-white-Indian ancestry, and her white partner, Richard Loving, had married secretly in Washington, D.C., in the late 1950s.

Mildred, 18 and pregnant with the couple’s first child, and Richard knew they were violating the law in their home state, and Richard snuck into their house under the cover of dark. A tip alerted police that the Lovings were in the house, and during a nighttime raid in which officers hoped to catch the couple in flagrante, the Lovings showed their marriage certificate.

Under the law, their union was null and void, and no marital rights accrued to them. Their children were considered “illegitimate” and also living evidence that the couple had crossed racial boundaries the law was meant to reinforce. Mildred and Richard Loving were sentenced to a year in jail. A local judge offered to suspend the jail time if the couple agreed to leave the state.

The Lovings lived in a world that slavery and its offspring, segregation, had made. When Galveston’s enslaved people danced in the streets upon learning of their freedom in 1865, that freedom came with some marriage rights but not others. The enslaved hadn’t been able to seek a legal marriage; after all, property could not make binding decisions or marry other property. After freedom, marriages that began under slavery became recognized under law. But not all marriages were legal. Citizens of the post-Civil War world were in the midst of a massive social, economic, and legal shakeup. In states nationwide, legislatures debated whether their state constitutions would allow “social equality”—code for interracial marriage. Allowing interracial marriage would change the political landscape and, literally, the complexion of this newly unified nation. Some states seesawed between permitting interracial marriages; South Carolina’s 1868 constitution was mute on interracial marriage, but its 1895 version banned them explicitly.

Politicians and pundits also knew that interracial relationships were nothing new; states that banned Black-white marriage often failed to ban nonmarital interracial sexuality—likely an intentional loophole.

The Lovings’ own state, Virginia, began passing laws against interracial relationships between enslaved people and whites in the late 1600s because such contact inevitably produced a mixed-race population of uncertain status. As historian Martha Hodes has written, interracial marriages and unions occurred from the early colonial period to the 19th century in places like Maryland’s Eastern Shore, where white women indentured servants literally gave up their freedom due to relationships with Black enslaved men.

That’s not to say that, particularly in the post-Civil War South, interracial relationships, much less marriage, was always met with approval. Before local police busted in on the Lovings, Black-white couples were routinely charged with fornication and heavily fined in local courts nationwide. Particularly unlucky interracial families got unwelcome visits from the Ku Klux Klan or other groups of violent white supremacists. A September 1885 New York Times article recounted the persecution of the Davis family of Fairfield County, South Carolina; Tom Davis, a prominent white landowner worth $45,000, left his property and his biracial family for Mississippi when vigilantes intent on stamping out “miscegenation” attacked his homestead.

Nor is it to say that the tangled issue of interracial marriage applied only to Blacks and whites. Western states frequently disallowed marriages between Asians and whites. In 1948, one of the important precedents for Loving came from the Supreme Court of California, affirming a marriage between a Mexican-American woman (classified as white) and a Black man. In that case, Perez v. Sharp, the justices upheld that marriage is a fundamental right that cannot be circumscribed by racial prejudice.

So on Loving Day, I take the name of the landmark case as an exhortation to be more loving and to uphold the couple’s legacy of fighting for the right to partner with whom and when we all choose.

Roundups Politics

Campaign Week in Review: Tim Kaine Outlines Plan to ‘Make Housing Fair’

Ally Boguhn

“A house is more than just a place to sleep. It's part of the foundation on which a family can build a life,” wrote Sen. Tim Kaine (D-VA). “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Donald Trump made some controversial changes to his campaign staff this week, and Sen. Tim Kaine (D-VA) noted his commitment to better housing policies.

Trump Hires Controversial Conservative Media Figure

Republican presidential nominee Trump made two notable additions to his campaign staff this week, hiring Breitbart News’ Stephen Bannon as CEO and GOP pollster Kellyanne Conway as campaign manager.

“I have known Steve and Kellyanne both for many years. They are extremely capable, highly qualified people who love to win and know how to win,” said Trump in a Wednesday statement announcing the hires. “I believe we’re adding some of the best talents in politics, with the experience and expertise needed to defeat Hillary Clinton in November and continue to share my message and vision to Make America Great Again.”

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Both have been criticized as being divisive figures.

Conway, for example, previously advised then-client Todd Akin to wait out the backlash after his notorious “legitimate rape” comments, comparing the controversy to “the Waco with David Koresh situation where they’re trying to smoke him out with the SWAT teams.” According to the Southern Poverty Law Center (SPLC), Conway is also “often cited by anti-immigrant and anti-Muslim organizations such as the think tank Center for Security Policy and NumbersUSA.”

Under Bannon’s leadership, “mainstream conservative website” Breitbart.com changed “into a cesspool of the alt-right,” suggested the publication’s former editor at large, Ben Shapiro, in a piece for the Washington Post‘s PostEverything. “It’s a movement shot through with racism and anti-Semitism.”

Speaking with ABC News this week, Kurt Bardella, who also previously worked with Bannon at Breitbart, alleged that Bannon had exhibited “nationalism and hatred for immigrants, people coming into this country to try to get a better life for themselves” during editorial calls.

“If anyone sat there and listened to that call, you’d think that you were attending a white supremacist rally,” said Bardella.

Trump’s new hire drew heated criticism from the Clinton campaign in a Wednesday press call. “The Breitbart organization has been known to defend white supremacists,” said Robby Mook, Clinton’s campaign manager. After pointing to an analysis from the SPLC linking Breitbart to the extremist alt-right movement, Mook listed a number of other controversial positions pushed by the site.

“Breitbart has compared the work of Planned Parenthood to the Holocaust. They’ve also repeatedly used anti-LGBT slurs in their coverage. And finally, like Trump himself, Breitbart and Bannon have frequently trafficked in all sorts of deranged conspiracy theories from touting that President Obama was not born in America to claiming that the Obama Administration was ‘importing more hating Muslims.’”

“It’s clear that [Trump’s] divisive, erratic, and dangerous rhetoric simply represents who he really is,” continued Mook.

Kaine Outlines Plan to “Make Housing Fair”

Clinton’s vice presidential nominee Kaine wrote an essay for CNN late last week explaining how the Clinton-Kaine ticket can “make housing fair” in the United States.

“A house is more than just a place to sleep. It’s part of the foundation on which a family can build a life,” wrote Kaine. “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Kaine shared the story of Lorraine, a young Black woman who had experienced housing discrimination, whom Kaine had represented pro bono just after completing law school.

“This is one issue that shows the essential role government can play in creating a fairer society. Sen. Ed Brooke, an African-American Republican from Massachusetts, and Sen. Walter Mondale, a white Democrat from Minnesota, came together to draft the Fair Housing Act, which protects people from discrimination in the housing market,” noted Kaine, pointing to the 1968 law.

“Today, more action is still needed. That’s why Hillary Clinton and I have a bold, progressive plan to fight housing inequities across Americaespecially in communities that have been left out or left behind,” Kaine continued.

The Virginia senator outlined some of the key related components of Clinton’s “Breaking Every Barrier Agenda,” including an initiative to offer $10,000 in down payment assistance to new homebuyers that earn less than the median income in a given area, and plans to “bolster resources to enforce Fair Housing laws and fight housing discrimination in all its forms.”

The need for fair and affordable housing is a pressing issue for people throughout the country.

“It is estimated that each year more than four million acts of [housing] discrimination occur in the rental market alone,” found a 2015 analysis by the National Fair Housing Alliance.

No county in the United States has enough affordable housing to accommodate the needs of those with low incomes, according to a 2015 report released by the Urban Institute. “Since 2000, rents have risen while the number of renters who need low-priced housing has increased,” explained the report. “Nationwide, only 28 adequate and affordable units are available for every 100 renter households with incomes at or below 30 percent of the area median income.”

What Else We’re Reading

CBS News’ Will Rahn penned a primer explaining Trump campaign CEO Bannon’s relationship to the alt-right.

White supremacists and the alt-right “rejoice[d]” after Trump hired Bannon, reported Betsy Woodruff and Gideon Resnick for the Daily Beast.

Clinton published an essay in Teen Vogue this week encouraging young people to fight for what they care about, learn from those with whom they disagree, and get out the vote.

“In calling for ‘extreme vetting’ of foreigners entering the United States, Republican presidential nominee Donald Trump suggested a return to a 1950s-era immigration standard—since abandoned—that barred entry to people based on their political beliefs,” explained USA Today.

Trump wants to cut a visa program “his own companies have used … to bring in hundreds of foreign workers, including fashion models for his modeling agency who need exhibit no special skills,” according to a report by the New York Times.

A Koch-backed group “has unleashed an aggressive campaign to kill a ballot measure in South Dakota that would require Koch-affiliated groups and others like them to reveal their donors’ identities.”

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

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