Melissa Murray Delivers Bodenheimer Lecture
The 1967 U.S. Supreme Court decision in Loving v. Virginia struck down laws against interracial marriage, but in the years that followed, government regulation of interracial relationships continued in various forms. That’s why it’s important to recognize the difference between decriminalization and deregulation, and partly why Loving remains relevant today, said Professor Melissa Murray in delivering the Brigitte M. Bodenheimer Lecture on Family Law at King Hall.
Video of the lecture is available here.
Murray, who is the Alexander F. and May T. Morrison Professor of Law and Faculty Director of the Center on Reproductive Rights and Justice at UC Berkeley School of Law, presented to a large audience in the Kalmanovitz Appellate Courtroom on November 16. Speaking on “Loving’s Legacy: Decriminalization and the Regulation of Sex,” Murray challenged much of the conventional wisdom regarding the landmark Supreme Court decision.
Although the ruling decriminalized interracial relationships, it did not eliminate all forms of state regulation, and the social stigmatization of interracial couples continued to be expressed in various other ways, Murray said. For example, in the years following Loving, white women routinely lost custody of their children when they dated or married black men.
“As the post-Loving landscape shows, the legalization of interracial marriage did not end state regulation of that choice,” Murray said. “The mode of regulation morphed and shifted to different contexts, but in the end it is regulation nonetheless.”
Similarly, cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission, set to be heard soon by the Supreme Court, show that attempts to regulate same-sex relationships have persisted in the wake of Obergefell v. Hodges, the 2015 decision in which the Court struck down laws against same-sex marriage. Because civil rights reform has often used decriminalization as a primary tool, it is important to recognize the limitations of this approach, and to appreciate the differences between legalization and deregulation, Murray said.
“Deregulation and legalization are not synonymous,” said Murray. “To deregulate something is to remove the state’s presence entirely. To legalize something is perhaps to allow the state’s presence in through a different venue. And all the same, regulation is regulation, whether it occurs via the hammer of the criminal law or through the subtler velvet glove of civil regulation. All of this is worth thinking about today, 50 years after Loving v. Virginia. As many have noted, this is a remarkable decision that did much to advance equality, but it was not a magic bullet. It reminds us that decriminalization rarely is a magic bullet, and that there is always, always more work to be done.”
Established in 1981 in memory of UC Davis School of Law Professor Brigitte M. Bodenheimer, the Brigitte M. Bodenheimer Lecture brings scholars and practitioners to King Hall to discuss recent developments affecting family law. Recent Bodenheimer lectures have featured Camille Gear Rich, Associate Provost for Faculty and Student Initiatives in the Social Sciences and Professor of Law and Sociology at USC School of Law; Michael A. Olivas, the William B. Bates Distinguished Law Chair at the University of Houston Law Center; Angela Onwuachi-Willig, Chancellor’s Professor of Law at UC Berkeley School of Law; and former California Supreme Court Justice Carlos R. Moreno.