Loving’s Legacy: Decriminalization and the Regulation of Sex and Sexuality

2017 marked the fiftieth anniversary of Loving v. Virginia, the landmark Supreme Court decision that invalidated bans on miscegenation and interracial marriages. In the years since Loving was decided, it remains a subject of intense scholarly debate and attention. The conventional wisdom suggests that the Court’s decision in Loving was hugely transformative— decriminalizing interracial marriages and relationships and removing the most pernicious legal barriers to such couplings. But other developments suggest otherwise. If we shift our lens from marriages to other areas of the law—child custody cases, for example—Loving’s legacy seems less rosy. In the years preceding and following Loving, white women routinely lost custody of their white children when they remarried or began dating black men. That this should happen in the years before Loving is perhaps unsurprising. But one might expect a shift after Loving, when interracial marriages and dating were decriminalized and made lawful. This was not the case. Even after Loving, white women routinely lost custody when they remarried or dated black men. These underexplored child-custody cases illuminate an important aspect of Loving—and indeed, any civil rights effort that is predicated on decriminalization. Despite the turn toward decriminalization and subsequent legalization, the impulse to punish and stigmatize certain conduct does not dissipate entirely. Instead, it may simply be rerouted into other legal avenues where disapprobation of the challenged conduct may continue to be expressed and felt. Recognizing and understanding this “regulatory displacement” phenomenon is critical as we assess the progress of other decriminalization efforts, including the recent struggle to legalize same-sex marriages