Prejudice, Constitutional Moral Progress, and Being “On the Right Side of History”: Reflections on Loving v. Virginia at Fifty

Looking back at the record in Loving, this Article shows the role played by narratives of constitutional moral progress, in which the Lovings and their amici indicted Virginia’s antimiscegenation law as an “odious” relic of slavery and a present-day reflection of racial prejudice. In response, Virginia sought to distance such laws from prejudice and white supremacy by appealing to “the most recent” social science that identified problems posed by “intermarriage,” particularly for children. Such work also rejected the idea that intermarriage was a path toward progress and freedom from prejudice. This Article concludes by briefly examining the appeal to Loving in arguments about not being on “the wrong side of history” in the successful challenge to Virginia’s bans on permitting or recognizing same-sex marriage