Could Loving v. Virginia be overturned? In practical terms, no — the 1967 decision guaranteeing the right to interracial marriage sits on two independent constitutional foundations, was decided unanimously, has nearly six decades of reliance behind it, and now has a federal statute reinforcing it. No sitting justice has called for revisiting it, including the one justice who has openly urged the Court to reconsider related precedents.
The fear is understandable. When the Supreme Court overturned Roe v. Wade in 2022, it became reasonable to ask which other civil rights precedents might be vulnerable. But Loving is structurally different from Roe in ways that matter, and those differences are worth understanding.
Two Constitutional Grounds, Not One
Most public anxiety about Loving assumes it rests on the same doctrine that supported Roe: substantive due process, the idea that the Fourteenth Amendment’s Due Process Clause protects certain fundamental liberties from government interference. That doctrine is genuinely contested. If it were the only thing holding Loving up, the case would be more exposed than it is.
Loving has a second leg. Chief Justice Earl Warren’s unanimous opinion struck down Virginia’s anti-miscegenation statute on two separate grounds. The Due Process holding recognized marriage as a fundamental liberty and said “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”1Oyez. Loving v. Virginia The Equal Protection holding was independent: racial classifications in criminal statutes must survive “the most rigid scrutiny,” and Virginia’s law had no legitimate purpose “independent of invidious racial discrimination.”2Justia. Loving v. Virginia The Court also rejected Virginia’s claim that the law was constitutional because it punished Black and white spouses equally.
That second ground matters enormously. Strict scrutiny of racial classifications is one of the most deeply entrenched principles in American constitutional law. It predates Loving, traces back to cases from the 1940s, and sits at the core of civil rights law far beyond marriage. No sitting justice has questioned it, and no serious legal movement is trying to. Even a future Court that abandoned substantive due process entirely would still have to take a separate, much larger step to dismantle equal protection review of race-based laws before it could touch Loving.
What Justice Thomas Actually Said in Dobbs
The 2022 Dobbs v. Jackson Women’s Health Organization decision is what put this question back in the public mind. Justice Samuel Alito’s majority opinion tried to limit the fallout, writing that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”3Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization
Justice Clarence Thomas wrote separately. He argued the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” the cases that protect contraception access, same-sex intimacy, and same-sex marriage.3Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization Thomas did not name Loving. The omission is telling. Loving relies in part on substantive due process, so if Thomas were willing to place it on his list, he had the opportunity. The most plausible reading is that its independent Equal Protection foundation makes it a different kind of precedent, one that does not depend on the doctrine he wants dismantled.
Two other points about Thomas’s concurrence matter. No other justice joined the portion calling for reconsideration of those precedents. And a single justice’s list of cases he wants revisited is not the position of the Court.
How the Court Decides Whether to Overturn a Precedent
The Supreme Court operates under stare decisis, a principle favoring leaving established rulings in place. Overruling a prior decision is treated as a serious step requiring strong justification. The Dobbs majority set out five factors it weighs when deciding whether an older case should go:3Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization
- Quality of the original reasoning and its grounding in constitutional text, history, and precedent
- Workability of the legal standard it created
- Reliance interests built up around the ruling
- Effect on other areas of law
- Whether the original decision was deeply wrong from the start
Loving comes out well on every one of these. Its reasoning draws on two independent constitutional clauses and has been reaffirmed for nearly sixty years. Lower courts have had no trouble applying it. Millions of interracial families have built their legal, financial, and personal lives around it. The decision has produced no distortions in adjacent doctrines. And the moral consensus behind it has only grown stronger since 1967. The Dobbs majority argued that Roe failed on each of these measures; Loving presents the opposite case on all of them.
The Respect for Marriage Act Adds a Statutory Layer
In 2022, Congress passed the Respect for Marriage Act, Public Law 117-228. It creates a layer of protection that does not depend on how any future Court reads the Fourteenth Amendment.
The Act requires the federal government to recognize any marriage between two individuals that was valid where it was performed.4Congress.gov. Public Law 117-228 Respect for Marriage Act It also prohibits anyone acting under state law from refusing to give full faith and credit to a marriage from another state based on the sex, race, ethnicity, or national origin of the spouses. The Attorney General can bring a civil enforcement action against violations, and harmed individuals have a private right of action in federal court.5Office of the Law Revision Counsel. 28 USC 1738C Certain Acts, Records, and Proceedings and the Effect Thereof
One boundary worth noting: the Act requires states to recognize valid marriages performed elsewhere, but it does not require any state to issue new marriage licenses. In the extreme hypothetical of a state refusing to license interracial marriages, a couple could marry in another state and their home state would still be legally obligated to recognize the marriage. Under current constitutional law no state could refuse in the first place, but the statute is designed to hold even if constitutional protections were somehow weakened.
What Would Have to Happen for an Overturn
Several independent layers would need to fail at the same time before interracial marriage rights were genuinely at risk.
On the constitutional side, the Court would have to abandon not only substantive due process but also strict scrutiny for racial classifications under the Equal Protection Clause. No justice has advocated the second step, and taking it would unravel civil rights law far beyond marriage.
On the procedural side, the Court does not revisit cases on its own. Someone would have to bring a challenge to interracial marriage, prevail somewhere in the lower courts, and persuade the Supreme Court to hear it. Anti-miscegenation laws have been unconstitutional for nearly sixty years and the moral consensus against them is overwhelming, which makes finding a vehicle for such a challenge nearly inconceivable.
On the statutory side, even the most extreme constitutional outcome would leave the Respect for Marriage Act in force, requiring interstate recognition of existing marriages and providing federal enforcement. Repealing that statute would require majority votes in both chambers of Congress and a presidential signature.
A unanimous decision resting on two independent constitutional clauses, backed by a federal statute and nearly six decades of reliance, occupies a different category of legal durability than the precedent the Court chose to discard in Dobbs.