The rewritten opinion of Loving v. Virginia in Feminist Judgments: Rewritten Opinions of the United States Supreme Court is in stark contrast to the original. Professor Teri McMurtry-Chubb’s judgment for the court “unmasks—and renders unavoidable— the link between America’s history of White supremacy and patriarchy and America’s legal structures for regulating marriage and families.” The feminist opinion relies almost entirely on legal, social, and cultural history, in particular the history of marriage and family relationships among and between Blacks and Whites during the colonial, antebellum, and postbellum eras in the American South.
For the authors of this response Essay, both the original and rewritten Loving opinions get it right by focusing on White supremacy, but they fall short in treating Mildred and Richard as proxies for racial justice. In their view, it is important for the law to remember that Mildred and Richard were real people, whose lives depended on the outcome of this case. The authors also reflect on the future of what they identify as artificial racial barriers. In emphasizing that Mildred Jeter identified as mixed race, the authors highlight the difficulty of racial categorization in the modern era when so many are discovering, sometimes surprisingly, their mixed and diverse ancestry. Thus, the Essay suggests, while the rewritten feminist judgment might have worked some societal change through the development of the law, time and culture are equally powerful agents of change.
Justice Leah Ward Sears (Ret.) & Sasha N. Greenberg,
The Love in Loving: Overcoming Artificial Racial Barriers,
Notre Dame L. Rev. Online
Available at: https://scholarship.law.nd.edu/ndlr_online/vol94/iss1/6