Loving v. Virginia and Its Impact On Canadian Jurisprudence
When Mildred Loving died on May 2nd, she left behind one of the landmark cases in 20th-century common law. Loving v. Virginia 388 U.S. 1 affirmed the Equal Protection Clause contained within the 14th Amendment of the United States Constitution, and struck a blow against bigotry and legally enshrined racism.
Beyond its importance in the American context, however, Canadian courts have cited it as precedent in a number of important Canadian legal decisions.
R. v. Morgentaler  1 S.C.R. 30
Both the Ontario Court of Appeal and then the Supreme Court cited Loving as an example of the right to privacy and the right to choose one’s spouse being the first in a series of decisions, all protected in American caselaw, ultimately leading to the decision to abort a pregnancy. Although the Ontario Court of Appeal decided that the right to abort a pregnancy was not fundamental enough to be protected under s.7 of the Charter, the Supreme Court reversed the Ontario court’s decision.
Particularly noteworthy is Justice Wilson’s comment that:
[t]he right to “liberty” contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life… A woman’s decision to terminate her pregnancy falls within this protected class of decisions, as it will have profound psychological, economic and social consequences for her.
This language affirms the Ontario court’s finding of Loving as an example of protection of personal autonomy under the law, but upholds that protection rather than finding it too broad.
Miron v. Trudel  2 S.C.R. 418
This 1995 case drew an analogy between common-law spousal relationships and legal marriages, reading common-law spouses into the definition of “spouse” in the Ontario Insurance Act. Interestingly, Loving was cited in Justice Gonthier’s dissent, which rejected the majority’s conflation of common law spousal relationships and legal marriages. Gonthier J.’s reliance on Loving is initially puzzling given that Loving is fundamentally about the expansion and protection of civil rights; it seems a more natural fit to be cited by the majority.
However, Gonthier J.’s reliance on Loving is informed by Chief Justice Earl Warren’s assertion in that case that “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The implication of this, Gonthier J.explained, was that marriage was “both a basic social institution and a fundamental right which states can legitimately legislate to foster.” Thus, Gonthier J. argued, using Loving as evidence, that the practice of marriage was so important that it should not be eroded by according common-law relationships the same protections.
L’Heureux-Dubé J. countered this reasoning in a concurring opinion, referring to a number of factors: that common-law relationships may change in their intent of avoiding marriage over time, that Canadian jurisprudence has over the years applied many of the obligations present in legal marriages to common-law relationships (for example, applying the constructive trust doctrine in Pettkus v. Becker  2 S.C.R. 834 to effectively create spousal support obligations to unmarried couples) and finally that “[f]amily means different things to different people, and the failure to adopt the traditional family form of marriage may stem from a multiplicity of reasons – all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under the law.”
Loving and Same-Sex Marriage In Canada
Of course, any discussion of Loving in a Canadian context cannot be complete without discussing same-sex marriage rights, as anti-miscegenation laws obviously analogize to the disallowance of same-sex marriage.
In EGALE Canada Inc. v. Canada (Attorney General) 2001 BCSC 1365, the British Columbia Supreme Court ruled that the legal status of marriage did not extend to same-sex couples. When the petitioners cited Loving as an analogous case, the court responded by arguing “[i]n context, Loving was concerned with rights. That is not the case in the petitioners’ circumstances. Their right to marry a person of opposite sex is not in question.”
This is an example of the standard legal jiu-jitsu employed in opposition to same-sex marriage whenever a comparison to miscegenation laws is raised: gay people have the same right to marry individuals of the opposite gender like everyone else, so they’re not being oppressed. This argument concerns itself with the letter of marriage rather than the spirit of it, which is personal fulfillment and emotional stability. Indeed, Chief Justice Warren wrote in Loving that marriage was “essential to the orderly pursuit of happiness.” Which is where this argument against same-sex marriage fails: a gay individual is not likely to derive much personal fulfillment or emotional stability from a person to which he or she cannot be sexually attracted.
In contrast to EGALE, Loving was successfully analogized by the Ontario Court of Appeal in Halpern v. Canada (Attorney General)  O.J. No. 2268, where the court directly cited Loving in applying the test for violations of s. 15(1) of the Charter created in Law v. Canada  1 S.C.R. 497. In Halpern, the court dismissed the argument that marriage was traditionally defined as being between a man and a woman by saying “whether a formal distinction is part of the definition itself or derives from some other source does not change the fact that a distinction has been made.” The court then drew on Loving in positing that anti-miscegenation laws were “traditional” despite being delineated along racial grounds. This argument formed part of the basis for the pro-same-sex-marriage decision in Halpern, where prohibition of same-sex marriage was found to violate s. 15(1).
Interestingly, in using Loving as precedent for the defence of same-sex marriage rights, Canadian courts have gone much further than American courts. As an example, in Hernandez v. Robles 2006 NY Slip Op 05239 [7 NY3d 338], the New York State Court of Appeal sought to distinguish the racist miscegenation laws overturned in Loving from the prevention of same-sex couples from marrying by pointing out that racism had been recognized as a societal evil for centuries, whereas homophobia had only been recognized as a societal evil relatively recently. The court in Hernandez accordingly found that the Fourteenth Amendment had not borne homophobia in mind when it was constructed but did concern itself with racism. Cases like Hernandez underscore the tendency among some American jurists (especially those belonging to the “originalist” school) to limit the scope of 14th Amendment to the perceived (race-related) intent of its framers.
A concurring opinion in the same decision stated “[f]ar from recognizing a right to marry extending beyond the one woman and one man union, it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation.” It is worth noting that although Chief Justice Warren did indeed note that marriage is “fundamental to our very existence and survival”, he did so only after stating that the freedom to marry was “one of the vital personal rights essential to the orderly pursuit of happiness,” which, to this writer, implies a privileging of happiness over justice as regards the purposes of marriage.
Loving v. Virginia remains a powerful precedent in Canadian law, both for privacy rights and for promotion of the importance of access to marriage rights. This is entirely appropriate as Mildred Loving explained in 2007, on the fortieth anniversary of Loving‘s decision:
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all.
While the picture remains bleak in an American context, at least in Canada, Mildred Loving is survived by her invaluable contribution to equal access to marriage across not only race, but also gender-based lines.