The right to interracial marriage established by Loving v. Virginia is not immediately at risk after the fall of Roe v. Wade, because Loving rests on constitutional ground that Roe never had: an independent Equal Protection holding that strikes down racial classifications in marriage regardless of what happens to substantive due process. That said, the Dobbs decision reshaped how the Supreme Court evaluates rights not explicitly written into the Constitution, and legal scholars have flagged real concerns about the durability of that whole family of rights. The question of whether Loving v. Virginia is at risk after Roe v. Wade has two honest answers: the case itself is unusually well-armored, and the legal environment around it has genuinely shifted.
Why Loving Rests on Stronger Ground Than Roe
The 1967 decision in Loving v. Virginia struck down state bans on interracial marriage on two independent constitutional grounds. That dual foundation is the single most important fact for anyone asking whether the case is vulnerable.
Chief Justice Earl Warren’s unanimous opinion first held that Virginia’s anti-miscegenation statute violated the Equal Protection Clause of the Fourteenth Amendment. Restricting marriage “solely because of racial classifications violates the central meaning of the Equal Protection Clause,” and the law was designed to maintain “White Supremacy.”1Library of Congress. Loving v. Virginia, 388 U.S. 1 The Court applied strict scrutiny, the most demanding standard of judicial review, holding that racial classifications require the “most rigid scrutiny” and that no legitimate purpose independent of racial discrimination justified the law.2Justia. Loving v. Virginia, 388 U.S. 1
The Court then ruled separately that the statutes deprived the Lovings of liberty without due process of law, identifying the “freedom to marry” as a fundamental right and one of the “basic civil rights of man.”3National Constitution Center. Loving v. Virginia This second holding sits in the same doctrinal neighborhood as Roe, Griswold, and Obergefell.
The practical consequence is significant. Even if the Supreme Court abandoned substantive due process entirely, Loving would still stand on its Equal Protection leg. Bans on interracial marriage are facial racial classifications subject to strict scrutiny, the very kind of discrimination the Fourteenth Amendment was written to prohibit. Roe had no comparable second foundation. When the Court reworked its approach to unenumerated rights, Roe had nowhere else to stand. Loving does.
What Dobbs Actually Changed
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, issued on June 24, 2022, did more than eliminate the federal right to abortion. It reset the framework the Court uses to evaluate rights not explicitly listed in the Constitution. Writing for the majority, Justice Samuel Alito held that unenumerated rights qualify for constitutional protection only if they are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”4Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, No. 19-1392 Because the majority concluded that no such historical tradition supported a right to abortion, Roe and Planned Parenthood v. Casey were overruled.
Alito tried to cabin the decision’s reach. He distinguished abortion from other rights previously protected under the Due Process Clause by arguing that abortion is “fundamentally different” because it involves the destruction of “potential life” or an “unborn human being,”5Cornell Law Institute. Dobbs v. Jackson Women’s Health Organization and he wrote explicitly: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”4Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, No. 19-1392
That reassurance was immediately undercut by Justice Clarence Thomas’s concurrence, which called on the Court to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” covering contraception, intimate sexual relations, and same-sex marriage. Thomas characterized every substantive due process ruling as “demonstrably erroneous.”6Courthouse News Service. Thomas Didn’t Mention Interracial Marriage, and That’s Worth Talking About The three dissenting justices warned that the majority’s historical test could logically be turned against any right protected under the same doctrine.7Syracuse Law Review. Dobbs v. Jackson: The Overturning of Roe v. Wade and Its Implications on Substantive Due Process
Why Some Concern About Loving Persists
Thomas’s Conspicuous Omission
Justice Thomas named Griswold, Lawrence, and Obergefell as precedents the Court should revisit. He did not mention Loving. Every other opinion in the case, majority and dissent alike, cited Loving when discussing substantive due process.6Courthouse News Service. Thomas Didn’t Mention Interracial Marriage, and That’s Worth Talking About The omission drew attention, in part because Thomas himself has been in an interracial marriage since 1987.
Some legal scholars have pointed to Loving‘s equal protection foundation as the reason Thomas may have left it off the list. Others have read the omission less charitably. Lawrence Gostin of Georgetown Law argued that because Loving is grounded in the same “constellation of privacy rights” as the cases Thomas targeted, the omission exposes the Court to charges of “inconsistency and political bias.” David Cole of the ACLU said the current Court uses “history and tradition” selectively, disregarding historical precedent when it conflicts with desired outcomes. Caroline Fredrickson, also of Georgetown, warned that the conservative majority might simply create “specious” factual distinctions to preserve cases they personally wish to keep while dismantling others.6Courthouse News Service. Thomas Didn’t Mention Interracial Marriage, and That’s Worth Talking About
The Narrowing Strategy in Muñoz
In June 2024, the Court decided Department of State v. Muñoz, the first substantive due process case since Dobbs. It involved a U.S. citizen whose noncitizen husband was denied an immigrant visa. Justice Barrett, writing for a five-member majority, held that a citizen does not have a “fundamental liberty interest” in a noncitizen spouse being admitted to the country, applying the same “deeply rooted in history” test used in Dobbs.8Supreme Court of the United States. Department of State v. Muñoz, No. 23-334
Justice Sotomayor’s dissent argued the majority “mischaracterized Muñoz’s asserted right” as a right to immigrate a spouse, rather than recognizing it as a burden on the established right to “marry, establish a home and bring up children.” Commentary in the Harvard Law Review warned that by narrowly defining the asserted right and using selective historical evidence, the Court created a precedent that could “vitiate central components of the rights of marriage” and destabilize cases like Obergefell and even Loving by separating the legal right to marry from the practical ability to live with a spouse.9Harvard Law Review. Department of State v. Muñoz
A separate NYU Law Review analysis identified Muñoz as evidence of a new strategy: rather than directly overturning substantive due process rights, the conservative majority may “defang” them by defining them in narrow and formalistic terms, gutting their practical significance without the political cost of an outright reversal.10NYU Law Review. Department of State v. Muñoz and the Unbundling of Substantive Due Process
Anti-Miscegenation Laws Lingered Long After Loving
Part of the unease comes from the historical record. At the time Loving was decided in 1967, sixteen states still had anti-miscegenation laws on the books. Alabama did not remove its constitutional ban on interracial marriage until 2000, making it the last state to do so.11GovInfo. H. Res. 431 Even then, the Alabama constitution continued to contain racist language regarding marriage and school segregation as late as 2021. Voters approved a rewrite in November 2020, with a committee formed to excise the discriminatory provisions.12WAFF. Alabama Constitution Still Prohibits Interracial Marriage, Integrated Schools; Committee to Begin Revisions Constitutional rulings do not always translate cleanly into state law books.
The Respect for Marriage Act and What It Doesn’t Cover
Congress moved quickly after Dobbs to build a statutory backstop. The Respect for Marriage Act was signed into law by President Joe Biden in December 2022, passing the Senate 61–36 with support from 12 Republican senators and passing the House 258–169 with 39 Republican votes.13U.S. Senate. Roll Call Vote on H.R. 840414Clerk of the U.S. House. Roll Call 513, H.R. 8404 The legislation was motivated directly by Thomas’s concurrence.15BBC News. Respect for Marriage Act Signed Into Law by Biden
The law repeals the 1996 Defense of Marriage Act, which had allowed states to refuse recognition of same-sex marriages and excluded same-sex couples from federal benefits.16Human Rights Campaign. Respect for Marriage Act: What It Does It establishes a “place of celebration” standard, meaning the federal government recognizes any marriage valid in the jurisdiction where it was performed. And it prohibits any person acting under color of state law from denying full faith and credit to another state’s marriage records based on the “sex, race, ethnicity, or national origin” of the spouses, backed by civil enforcement actions.17GovTrack. H.R. 8404 Text
There is a real gap. The Act does not require any state to issue marriage licenses. If Loving were overturned, states would be free to refuse to issue new marriage licenses to interracial couples.18ABC News. Respect for Marriage Act for Same-Sex and Interracial Couples The federal government and other states would still recognize existing marriages performed elsewhere, but a couple in a state that banned interracial marriage would need to travel to another jurisdiction to marry. Rutgers law professor Leonore Carpenter has noted this creates an “economic justice problem,” as low-income individuals would bear the greatest burden.19Rutgers University. What the Same-Sex Marriage Bill Does and Doesn’t Do The Act is insurance for recognition and portability, not a federal mandate that all states perform these marriages.
Where Loving Stands Today
The right to interracial marriage remains the most legally durable of the rights in the post-Dobbs conversation. It is protected by a unanimous Supreme Court decision grounded independently in the Equal Protection Clause, the constitutional provision most directly aimed at racial discrimination. It has the statutory backstop of the Respect for Marriage Act for recognition and portability. And no state, litigant, or sitting justice has publicly advocated for its reversal.
The concern is not that Loving is about to fall. The concern is about the legal framework the Court has set in motion. The “deeply rooted in history and tradition” standard, the willingness to overturn decades-old precedent on divisive social questions, the narrowing approach seen in Muñoz, and the call by a sitting justice to reconsider the entire doctrine of substantive due process all point in a direction that makes legal scholars uneasy about rights they once considered settled. As Savannah Jelks wrote in the Georgetown Law Journal of Gender and the Law in 2024, rights previously protected under substantive due process “seemingly stand on the precipice of legal decay.”20Georgetown Law. Not Deeply Rooted but Deeply Fundamental: Grounding Unenumerated Rights in a Post-Dobbs World Loving has more armor than most, but it exists within a legal ecosystem that is changing.