As Kennedy points out, many sponsors of the Fourteenth Amendment "explicitly announced that it would not encroach upon states' authority to impose racially neutral prohibitions on interracial marriage. This history poses a dilemma for thoroughgoing originalists who object to antimiscegenation laws. If they are to stay true to their interpretive philosophy, such originalists must concede that Loving v. Commonwealth of Virginia was wrongly decided." He then twists the knife in a footnote: "It is a delicious irony that the most fervent champion of originalism on the Supreme Court in recent memory is an African-American--Justice Clarence Thomas--who was married in Virginia to a white woman named Virginia."

In another footnote, Kennedy writes, "It is my own belief that the struggle to secure the right to marry regardless of the genders of the parties involved will be won in the not so distant future," in part as a result of "previous struggles over race relations." Kennedy's faith that the federal courts, rather than legislatures, will act as the vanguard of progress in civil rights may be tested in an era in which Republican Presidents will have stacked the federal judiciary with conservatives. If even Democrats like Bill Clinton scrambled to support the Defense of Marriage Act, what is to prevent a loose-constructionist Supreme Court stacked by right-wing Republicans from pretending to discover a ban on gay marriage in the Constitution and striking down all state and local laws recognizing gay unions? Judicial activism can be used on behalf of conservative as well as liberal conceptions of civil liberties.

Kennedy argues that racial thinking in the United States is divided between an optimist tradition and a pessimist tradition. As an example of the pessimist tradition, he cites Thomas Jefferson, whose enthusiasm for solving America's race "problem" by deporting blacks to some foreign country was shared by Henry Clay, Abraham Lincoln and--in the twentieth century--Theodore Bilbo. The optimists "have included Frederick Douglass, Lydia Maria Child, Wendell Phillips, and Martin Luther King Jr." Today's pessimists can find evidence of the enduring power of the black-white dichotomy in the discrepancy in intermarriage rates among different groups. According to Romano, "Over 50 percent of Native Americans marry outside their racial group, while 25 percent of Asians do. In 1990, by comparison, only 6 percent of married blacks had nonblack (primarily white) spouses." The number rises to 10.8 percent if only first-time marriages are counted, however. Although voters removed inoperative but still offensive prohibitions against racial intermarriage in the constitutions of Mississippi (1987), South Carolina (1998) and Alabama (2000), Romano cites ample anecdotal evidence suggesting that the South is still far more hostile to interracial unions than the rest of the country.

Racial optimists, however, can find support for their view as well. Romano quotes a 1997 Gallup poll in which 61 percent of white respondents claimed to approve of interracial marriage. Although some vocal black nationalists continue to oppose intermarriage, according to a 2001 poll cited by Romano two-thirds of black men and one-half of black women had dated a person of another race.

Racial optimists tend to emphasize class differences rather than bigotry as the chief barrier to an even higher rate of racial amalgamation in the United States. The importance of social equality as a precondition for intermarriage is illustrated by the fact that personnel in the US military, an artificially egalitarian and meritocratic subculture, have a higher rate of interracial marriage than the rest of society. White male soldiers are three times more likely than white male civilians, and white female soldiers seven times more likely than white female civilians, to take black marriage partners.

According to Kennedy: "The extent to which racial minorities are conspicuously encumbered by poverty, unemployment, lesser educational opportunities, and like deprivations is the minimum extent to which they will continue to be marginalized in the common market for companionship." Romano agrees that the major barrier to racial amalgamation is no longer caste but class: "Income inequality and school and residential segregation not only act as barriers preventing blacks and whites from meeting in situations that might lead to dating, but also continue the racial disadvantages that make blacks less attractive as marital partners.... Marriage between blacks and whites will not become commonplace until race is no longer a marker of privilege or disadvantage."

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