Must we reject the judicial philosophy of originalism in order to strike down the miscegenation law?
Not at all. Most (probably all) originalists would actually argue that original understanding originalism requires the result the Court reached in Loving.
Let's take a closer look at original understanding.
What is the primary thrust, the "one pervading purpose" of the Equal Protection Clause--the primary value articulated there?
Racial Equality.
Virginia does not deny this--it merely argues that the framers believed that miscegenation laws were consistent with racial equality.
So even if Virginia is right, all it tells us is that two values were part of the original understanding--racial equality, and cultural acceptance of laws prohibiting inter-racial marriage.
But now let's assume that you are a judge committed to construing the Constitution in light of original understanding, and you are also a student of history, sociology, psychology, and the American culture.
Is the original Constitutional value of racial equality under law consistent with enforcement of anti-miscegenation laws?
Everyone I know would answer no, these two things are not consistent.
So you are faced with a choice--either to abandon the original constitutional principle of equality by allowing miscegenation, or forbid miscegenation in order to achieve equality. “X” and “not X”.
Since the values are inconsistent you must give up one or the other.
So what is an originalist Justice to do?
Since the primary original goal of the 14th Amendment (it's "one pervading purpose") was racial equality, since the principle of equality is expressly stated in the 14th Amendment and miscegenation is not, you must choose equality.
Here is how Bob Bork explains his view that a Justice committed to original understanding must vote to declare state-imposed racial segregation, in public schools or anywhere else, unconstitutional under the Equal protection Clause:
The Court's realistic choice, therefore, was either to abandon the quest for [racial] equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since [racial] equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the text.
Do you find this argument convincing?
Another way of looking at this is to say that the original principle of racial equality is binding on the Court, but not the subjective cultural and policy preferences of the founding generation.
