There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality."Courts and the EEOC have extended this logic to conclude that sexual orientation discrimination is a form of sex discrimination. Just as discrimination based on conduct between members of different races is race discrimination, discrimination based on conduct between members of the same sex is sex discrimination. Thus, in Hively v. Ivy Tech Community College, the Seventh Circuit rejected the dissent's contention that sexual orientation discrimination is not sex discrimination because it treats the members of both sexes equally:
. . . Loving shows why this fails. In the context of interracial relationships, we could just as easily hold constant a variable such as "sexual or romantic attraction to persons of a different race” and ask whether an employer treated persons of different races who shared that propensity the same. That is precisely the rule that Loving rejected, and so too must we, in the context of sexual associations.To be sure, Virginia's prohibition against interracial marriage was also grounded in perceptions about white supremacy. But as the Seventh Circuit noted in Hively, the Supreme Court concluded that miscegenation laws are inherently "repugnant" to the constitutional guarantee of equal protection, "even assuming an even-handed state purpose to protect the 'integrity' of all races."
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