39. Eliminating Other Vestiges of Segregation

The Supreme Court’s decision in Brown v. Board of Education (1954) was a major step in dismantling racial segregation in public schools. But segregation wasn’t just about schools. For generations, laws regulated private relationships—who could live together, who could marry, and even who could raise a child.

After Brown, state institutions slowly began to desegregate. But in people’s personal lives, the law still enforced racial boundaries. The Court had to decide: Did the Equal Protection Clause of the Fourteenth Amendment reach into the private sphere?

Interracial Cohabitation – McLaughlin v. Florida (1964)

For years, many states had laws banning interracial relationships. In Florida, it was illegal for an unmarried interracial couple to live together—even though unmarried couples of the same race could.

In McLaughlin v. Florida, the Court struck that law down. It ruled that if a law treats people differently because of race, it has to pass strict scrutiny, the highest level of constitutional review. The state would have to prove it had a compelling reason to ban interracial cohabitation. Florida couldn’t.

The Court’s message was clear: Using race to police personal relationships is not a legitimate government interest. This case laid the groundwork for the most famous challenge to racial boundaries in family life.

Banning Interracial Marriage – Loving v. Virginia (1967)

In a previous post, we explored Loving as a landmark in substantive due process—the Court's recognition that marriage is a fundamental right protected by the Fourteenth Amendment. But Loving also powerfully illustrates the Equal Protection Clause at work.

Mildred Jeter (a Black woman) and Richard Loving (a white man) had married in Washington, D.C., but were arrested upon returning to Virginia, where interracial marriage was illegal. Virginia claimed the law was fair because it punished both Black and white people equally for crossing the color line.

The Court wasn’t convinced. It applied strict scrutiny, because the law made racial distinctions. Virginia offered no compelling reason. And while the law seemed facially neutral, the Court recognized what it was really doing: enforcing white supremacy.

Loving thus paired due process and equal protection in a single, sweeping affirmation. The state had violated the Lovings’ liberty to marry and had also treated them unequally on the basis of race. The case confirmed that legal symmetry can’t mask racial hierarchy. The law’s true purpose—and the history behind it—matter.

Interracial Remarriage and Child Custody – Palmore v. Sidoti (1984)

Even after marriage bans were struck down, racial bias lingered in family law. In Palmore v. Sidoti, a white mother lost custody of her child because she had remarried a Black man. The state court claimed that the child might face social stigma and that this justified changing custody.

The Supreme Court reversed. Chief Justice Burger wrote that while private racial biases may persist in society, the law cannot give them official sanction. Courts cannot base custody decisions on race, even if they believe they’re protecting the child from prejudice.

The ruling clarified that racial bias (no matter how politely framed) has no place in the courtroom.

After Palmore: Can Race Ever Be Considered in Family Law?

In child custody: No. Courts cannot use race as a reason to deny custody to a parent.

In adoption: The rules are less clear. Some agencies consider racial and cultural background when placing children, especially in transracial adoptions. But these policies must be narrowly tailored and serve a compelling interest—they can’t simply assume that race-matching is best.

The Problem of Facial Neutrality

One of the hardest legal problems in racial equality law is what to do with laws that look neutral on their face—but aren’t. Defenders of segregation often pointed to the “equal application” of their laws. In Brown, Black and white students were both sent to separate schools. In Loving, both Black and white spouses were punished equally for crossing racial lines.

But the Court saw through that surface symmetry. It understood that these laws were built to reinforce a racial caste system. It’s not enough to ask whether a law treats everyone “the same”—we have to ask why the law was made and what it actually does in people’s lives.

The Court applied strict scrutiny because the laws were rooted in white supremacy. History and context matter. Equality isn’t just about facial neutrality—it’s about whether a law furthers or undermines the promise of equal citizenship.

Should All Racial Classifications Be Banned?

Some justices and scholars have argued for a total ban on any use of race by the government, even in policies designed to promote inclusion. Others argue that such a rule ignores history, and that sometimes, race-conscious measures are necessary to undo the effects of past discrimination.

The Court has never adopted a flat ban. Instead, it takes a case-by-case approach:

• If a law treats people differently based on race, it faces strict scrutiny.

• If the law disadvantages a racial minority group, it must be justified by a compelling interest.

• Courts must examine the law’s historical and social context, not just its words.

This debate—between formal equality and substantive justice—remains one of the most contested issues in constitutional law.

But one lesson is clear: when laws divide people by race, the courts must look deeper than surface symmetry. They must ask: Who made the rule, and what world was it trying to preserve?