The Story Behind Loving v Virginia
by Douglas O. Linder (2018)
If you were a boy, and lived in farming country in Virginia, and if many older males were overseas fighting in World War II, you did a man’s work. You drove a tractor, you helped slaughter animals, you did whatever needed to be done. Because labor was short, you might even help with a neighbor’s farm work.
Richard Loving was 10 years old, and white, and living in rural Caroline County, Virginia in World War II. Both he and his dad were paid workers at one of the larger farms in the county.
Richard’s mother was a midwife. She probably delivered more babies than anyone in Caroline County. As a neighbor noted, the local doctor “was always late.” Lola Loving brought all kinds of babies into the world, white, African-American, Indians (mostly Rappahannock)—and everything in between.
Unlike certain other parts of Virginia, there was no strict separation of the races in Caroline County. Historian Arica Coleman quotes a local resident: “There was a lot of mingling down here between the Blacks, the whites, and the Indians. Honestly, people are so mixed up down here, you can’t say what you are and are not.”
About 1950 or so, Richard Loving began making visits to the home of two friends. The home belonged to Theoliver and Musiel Jeter, tenant farmers in eastern Caroline County. The two boys in the home shared Richard’s love of music and cars. While spending time at the Jeters, Richard met his friends’ 11-year-old sister, Mildred, a slender and attractive girl.
As the 50s went on, Richard and Mildred developed a friendship. Peter Wallenstein tells their story in his book, Race, Sex, and the Freedom to Marry. Richard and Mildred began dating. Mildred called Richard “Rich.” Richard called Mildred “Stringbean,” then simply “Bean.” By early 1958, Mildred was pregnant.
It was Mildred’s second pregnancy. Girls often became pregnant at an early age in Caroline County in the 1950s. Mildred had given birth to a boy in 1957. The boy was delivered by Richard’s mother, and Mildred named him Sidney.
Richard and Mildred talked about the situation. They both wanted to get married. But there was a complication.
On Mildred’s birth certificate in 1939, both her parents were listed as “colored.” In fact, she had the very mixed ancestry so common in parts of Caroline County. She had ancestors that were African-American, ancestors that were white, and ancestors that were Rappahannock. But, so far as the state of Virginia was concerned, despite her rather light skin, she was “colored.”
The parents on Richard’s 1933 birth certificate were both listed as “white.” And that, so far as Virginia was concerned, presented a problem.
Virginia prohibited interracial sexual relations as early as its colonial days. In 1691, the Virginia legislature declared that something must be done to prevent “that abominable mixture and spurious issue” that could result from white women having sex with African-Americans or Indians.
In the years since it was a colony, Virginia never changed its mind about the lawfulness of interracial marriage. Though it did change its definition of who was white and who was not. For the entire nineteenth century, a Virginian was classified as “white” if he or she was less than one quarter of African descent. But in 1910, the legislature tightened eligibility for the classification of “white.” As of 1910, one-sixteenth African American ancestry was enough to make a person “colored” in the eyes of Virginia. And in its so-called “Racial Integrity Act of 1924”, Virginia went even further. It adopted what was called “the one-drop rule.” That is, if a Virginian had any traceable African-American ancestry at all, they could not be a “white” for purposes of the law. The Act also made clear that anyone of Indian ancestry should also be classified as “colored.”
The Virginia Supreme Court, about the time Richard and Mildred began dating, made clear that it saw no constitutional problem with Virginia’s ban on interracial marriage. Writing for the court, Justice Archibald Buchanan said nothing in the Constitution prevents states from acting to prevent—quote—“a mongrel breed of citizens.” The state had a strong interest, he said, in preserving “racial pride,” and in preventing “the corruption of blood,” which somehow—he concluded—“would weaken or destroy” good citizenship.
Virginia was far from alone in banning interracial marriage in 1955. 26 states had similar laws, including nine non-southern states. Far more states than had, in the years leading up to Brown versus Board, schools segregated by law.
Richard Loving believed, wrongly, that that he and Mildred would less likely to be harassed if they got married than if they co-habited. He knew that getting married in Virginia was not possible, But the nation’s capital was just 80 miles away. And Washington D.C. had no laws prohibiting interracial marriage.
So Richard and Mildred drove north. They got a marriage license. Then nine days later, they drove north again, this time to get married. With them in their car was Mildred’s father and brother, along to serve as witnesses. They picked a minister from the phone book. In the pastor’s home, in northeast Washington, on June 2, 1958, they exchanged marriage vows. Then they loaded back into their car and drove back to Virginia.
For a month or two, all went well. They lived together in the home of Mildred’s parents. They had a bedroom on the main floor. On the wall of their bedroom, Richard hung their marriage license.
It was about two in the morning, and Richard and Mildred were sleeping, when the three men entered their bedroom. The men pointed their flashlights at them. One of the men, the sheriff, demanded to know who they were. Mildred said, “I’m his wife.” Richard said, “We’re married” and pointed at his marriage license.
The sheriff was not impressed. “That’s no good here,” he said. The other two men, the deputy sheriff and the county jailer, seemed to agree. In the Loving’s marital bedroom was the entire law enforcement team of Caroline County.
Richard and Mildred were allowed to gather up a few things before being hauled away to jail. Mildred was scared. She went upstairs to talk to her mother. “Make them go away,” she said. But, of course, her mother could do no such thing. Richard and Mildred, five months pregnant, were piled into a patrol car and taken to the county jail in Bowling Green.
It was not a pleasant place to be. On the second floor of the jail, where Mildred was put, the plumbing was not functioning. Richard was kept in a cell on the lower floor.
Who turned them in? We will never know. Friends of Richard theorized that it might have been the member of a rival racing team. Someone upset that Richard’s team had beaten them.
Richard was released on bail one day after his arrest. But authorities made clear to Richard that he would not be spending anytime with Mildred. If he found bail for Mildred, they said, they’d put him back in.
The experience for Mildred was a nightmare. She was pregnant and alone. The jailer told her he might put a male prisoner in with her for the night. “It about scared me to death,” Mildred said later.
Richard and Mildred were indicted by a grand jury in October, five days after the birth of their baby son. The stated crime was “going out of the state, marrying, and returning” while being of different races under Virginia law. The indictment identified Richard as a man “alleged to be white,” and Mildred as a woman “alleged to be colored.”
The trial took place in January 1959 before Judge Leon Bazile. It was a judge trial; both sides agreed to proceed without a jury. Mildred and Richard were represented by a respected attorney. They pled “not guilty.”
It was a simple trial. Officers who made the middle-of-the night visit to the Loving’s bedroom testified that the Lovings shared a marital bed. The Lovings proved they were lawfully married in Washington. At the conclusion of the evidence, the Lovings changed their plea to guilty, according to the sketchy trial report.
Judge Bazile sentenced Richard and Mildred each to one year in jail. But then he immediately suspended sentence for 25 years on the condition that they leave the state of Virginia and “not return together or at the same time.”
Banished to DC, the Lovings took up residence in the home of one of Mildred’s cousins. Richard went looking for work. Mildred watched over their two kids. But the couple felt the pull of home and family.
During 1959 and in the couple of following years, Richard and Mildred made several trips back to Virginia. Usually, according to a relative, they stayed in an adjacent county. And usually in a boarding house where Mildred’s sister and her family lived. They came in separate cars. Mildred would drive up, park, and bring her children in. Then, sometime later, Richard would come from another direction and enter. Richard rarely left the house until it was time to head back to Washington DC.
Attitudes towards interracial marriage were changing the early 1960s. Religious organizations began to condemn miscegenation laws. For example, the General Assembly of the United Presbyterian Church declared the laws part of the “blasphemy of racism” and said they were no “theological grounds” to support them. There was also talk about a new Civil Rights bill the president was sending to Congress.
Mildred continued to long to return to her simple, rural life in Virginia—and complained about life in DC often. As she later explained, “I wanted to come home. My family was here, and my husband’s family was here. I hate to live in the city.” Her cousin suggested that she write a letter to the US attorney general, Robert F. Kennedy, to see if maybe he could help.
Mildred followed her cousin’s suggestion. She later said, “I told Mr. Kennedy of our situation” and asked “if there was any way he could help us.”
A few weeks later, she got her answer. Kennedy said he could not help directly, but suggested that she contact the American Civil Liberties Union. Her case was one the ACLU might be interested in. They had a local office in Washington, Kennedy noted.
Mildred contacted the ACLU DC office. She apparently was told by someone in the office of a lawyer who might be willing to work on her case. He was a founding member of the metro DC chapter, and practiced across the river in Arlington, Virginia. His name was Bernhard Cohen.
On June 20, 1963, Mildred sat down and penned a letter to Cohen:
“Dear Sir: I am writing you concerning a problem we have. Five years ago my husband and I were married here in the District. We then returned to Virginia to live. My husband is white, I am part Negro and part Indian. At the time, we did not know there was a law in Virginia against mixed marriages.”
She went on to describe her arrest and sentence. And then concluded:
“We know we can’t live there, but we would like to go back once and awhile to visit our families and friends. . . .We have three children and cannot afford an attorney. . . .Please help us if you can. I hope to hear from you real soon. Yours truly, Mr. and Mrs. Richard Loving.”
As soon as he read Mildred’s letter, Bernhard Cohen knew he had to take the case. The Virginia law was an abomination. The couple’s plight pulled at his heartstrings. And he loved the name, Loving. “Loving versus Virginia”—doesn’t that say it all?
Cohen also kept a law office in the District. The Lovings could meet him there without violating the terms of their parole.
For the Lovings to get relief, two things would have to happen. First, Cohen would have to figure out a way to have the case reconsidered by Virginia courts so there would be something to appeal. Second, and he thought this would be the easier part, he would have to convince an appellate court that the Virginia law was unconstitutional. And, if he was lucky, that pronouncement would come from the Supreme Court of the United States.
To get over the first hurdle, Cohen first tried filing a motion in Judge Bazile’s court asking that he set aside the Lovings’ convictions and sentence. He argued that the sentence of banishment was cruel and unusual punishment and violated due process of law. And he argued the Virginia miscegenation law violated the equal protection clause of the 14th Amendment.
Cohen’s motion sat on Judge Bazile’s desk for months. The judge obviously had no interest in revisiting a conviction and sentence that he thought perfectly justified. And Cohen wasn’t sure how to force him to act on his motion.
Seven months after Cohen filed his motion, he got another letter from the Lovings. They wrote, “We haven’t heard anything from you for so long, we had given up hope. . . .Please write us and let us know what you think. We will be looking to hear from you.”
His case was in limbo land. Cohen decided he needed help. He decided to stop by the office of his old constitutional law professor at Georgetown. As it happened, another one of the professor’s former students chose the same time to visit. The other visitor was a young lawyer named Philip Hirschkop. Hirschkop proposed an idea for getting Judge Bazile off the dime—or maybe even doing an end-run around his court altogether. He suggested filing what was called “a 2283 motion” to have a panel of three federal judges look at the constitutionality of the Virginia law.
Cohne filed his class-action suit in federal court in Virginia. He asked the court to declare the Virginia miscegenation law unconstitutional, and enjoin enforcement of Richard and Mildred’s sentences. The federal judge refused to issue an immediate restraining order, but he did call for a three-judge panel to hear the case.
After Cohen submitted his brief to the federal court, the Lovings met with reporters. Mildred said, “We loved each other and got married. We are not marrying the state. The law should allow a person to marry anyone he wants.” Richard, normally a man of few words, also had some things to say. Richard said “leaving home was the hardest part for me.” But, he added, “I am not going to divorce my wife.”
With the date for arguments in federal court fast approaching, Judge Bazile finally acted on Cohen’s motion. He wrote out his 12-page decision in longhand on a yellow legal pad.
The power to regulate marriages, he declared, rests entirely with the states. It is a right of the states, he said, that comes—quote—“from that somewhat battered but still a sturdy fortress in our fundamental law, the Bill of Rights.” The sentences were entirely proper, he said, because the Lovings were “guilty of a most serious crime.”
Then he came to his conclusion--one that would be quoted, praised, ridiculed for the rest of the case’s history:
“Almighty God created the races—white, black, yellow, and malay—and he placed them on separate continents. And but for the interference with his arrangement, there would be no cause for such marriages. The fact that he separated the races shows that He did not intend for the races to mix.”
Back in federal court, the judges ruled that the Lovings must first appeal Judge Bazille’s decision to the Virginia Supreme Court. They did, however, rule that during the appeal process the couple could live together in Virginia.
And that, of course, was a victory in itself. For the first time in six years they could see friends and family and live the lives they wanted to live.
The Lovings case continued to attract attention. LIFE magazine sent a photographer to their rural Virginia hideaway home to document their lives. A series of compelling photographs of Richard and Mildred together appeared in a photo essay entitled “The Crime of Being Married.” And a filmmaker, hoping to produce a documentary on their case, began filming scenes of the couple visiting courtrooms and meeting with lawyers.
The Virginia Supreme Court surprised no one with its decision. The Court said the precedents supporting miscegenation laws were still good law and must be followed. Brown v Board and other cases striking down segregation laws were not applicable. Marriage, the court said, is a concern of the states, not the federal government.
The Lovings said they would appeal. Richard told a reporter, “We are not doing it because someone had to do it and we wanted to be the ones. We are doing it for us—because we want to live here.’
In December 1966, the United State Supreme Court announced that it would hear the case of Loving versus Virginia. Oral argument was set for April. At stake would be not only the miscegenation law of Virginia, but also those of 15 other southern and border states.
Hirschkop and Cohen divided their 30 minutes of argument time. Hirschkop focused on the equal protection argument; Cohen on the argument that marriage was a fundamental personal decision protected by the due process clause and the court’s privacy decisions. Cohen had the last words. They were both moving and effective:
“No matter which theory of the Due Process Clause or which emphasis, no one can articulate it better than Richard Loving when he said to me, ‘Mr. Cohen, tell the Court I love my wife and it is just unfair that I can't live with her in Virginia.’"
Virginia’s Assistant Attorney General had the unenviable task of defending the miscegenation law. He argued that the legislative history of the 14th Amendment showed the framers had no intention to ban laws against mixed marriages. Second, he argued that Virginia’s law promoted “stable homes and families. He said, “It is clear that intermarried families are subjected to much greater pressures and problems than are those of the intra-married.” He compared the miscegenation laws to bans on “polygamous marriage” and laws that prevent “the marriage of people who are mentally incompetent.” To say the justices appeared skeptical would be an understatement.
Chief Justice Earl Warren wrote the opinion. The decision was unanimous.
Warren called the law a clear case of invidious racial discrimination that served no legitimate purpose. There could be no doubt, he said, that the law “violates the central meaning of the Equal Protection Clause.”
As if one constitutional violation were not enough, he added that the law also violated the Due Process Clause. Warren wrote, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” To take this freedom away, he said, “is surely to deprive all the State's citizens of liberty without due process of law.”
After the decision, the Lovings drove to Alexandria meet their attorneys and talk to reporters. In a photo taken in Cohen’s office, Richard draped his arm around Mildred. He meant to send a message.
Richard said, “We’re really overjoyed. My wife and I plan to go ahead and build a new house now.” Mildred said, “I feel free now.”
For the next eight years, life for Richard and Mildred was, well, normal. But life can change or end in an instant. In late June, 1975, around midnight, the Lovings were returning home from a night out in Bowling Green. A drunk driver blew a stop sign. Richard was crushed by the steering wheel and died at the scene. Mildred suffered serious injuries and lost an eye. Bernhard Cohen represented her in a civil suit against the drunk driver who killed her husband.
Mildred never remarried. She told an historian, “I married the only man I ever loved, and I’m happy for the time we had together.”
Mildred Loving died in 2008. She was buried in a cemetery by St. Stephen’s Baptist Church in Caroline County. Next to her is a granite monument marking the gravesite of her husband.
Loving versus Virginia settled the question of whether states could ban interracial marriages. But it raised another question. If states cannot ban interracial marriages, what other types of marriages might they not ban? What about, for example, marriages between two people of the same sex?
That question reached the Supreme Court sooner than you might have supposed. Less than four years after the Court handed down its decision in the Loving case.
The case arose in Minneapolis. A law student named Richard Baker and a librarian named James McConnell sought and were denied a marriage license in 1970. Their lawyer took the issue to the Minnesota Supreme Court. He compared the ban on same-sex marriage to the ban on interracial marriage in Loving. Only here, he said, the law was based on “heterosexual supremacy,” not “white supremacy.” The Court didn’t buy it. The 14th Amendment, the Court said, was not intended to transform the traditional notion of the family.
Baker and McConnell appealed to the U. S. Supreme Court. They got nowhere. The Court dismissed the appeal, saying it failed even to present “a substantial federal question.” Not even a substantial question?
Actually, the result, given the time, is hardly surprising. For decades the Court had recognized race as what it called “a suspect category.” Meaning that when states used racial classifications, their laws would be subject to very demanding judicial scrutiny.
Sexual orientation, on the other hand, was not considered a suspect category. In fact, it still isn’t today. If states can come up with some legitimate, even if not very convincing, justification for the classification, it will stand.
Well, what about the Due Process argument? That is, what about the argument that marriage is a fundamental private decision which the state cannot second-guess? The problem, at least at the time, was that marriage was simply too closely tied in the minds of the public, including judges, to the act of procreation and the traditional family.
By the way, Baker and McConnell did manage to get married after all. Minnesota law allowed a person to adopt someone, then marry that person. They did just that. They got their marriage license, had their wedding, and became America’s first lawfully married gay couple.
It would be another four decades before the U. S. Supreme Court again considered the constitutionality of gay marriage bans. In the meantime, social attitudes towards homosexuality had begun to change. In 2003, Massachusetts became the first state in the union to recognize gay marriages. Its Supreme Court, on a 4 to 3 vote, struck down bans on same-sex marriages based on the Massachusetts state constitution, not the federal constitution. There was no federal question for an appeal.
Massachusetts made gay marriage a major issue in the 2004 election. Many observers credit it for giving President Bush his narrow win over John Kerry. In key states such as Ohio, conservative voters turned out in droves to support state constitutional bans on gay marriage. In all eleven states where constitutional bans on gay marriage was on the ballot, they passed. In some states by nearly 3 to 1 margins.
But attitudes were changing, and faster than many people ever imagined. Mildred Loving even released a statement in 2007 supporting gay marriage. The statement was likely written by others, but it must reflect her views. The statement says, in part:
“I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family, that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”
By 2013, twelve states had recognized same sex marriage. Some by state courts striking down bans, and some by state legislatures repealing bans.
That same year, the Supreme Court took up the case of United States v Windsor. The case was not about a direct attack on same-sex marriage bans. Rather, it was a challenge to of the Defense of Marriage Act. Voting 5 to 4, the Court struck down a law that refused to recognize lawful same-sex marriages for federal purposes. Such as the filing of a joint tax return.
Two years later, with courts around the country split, the Court finally agreed to answer the question of whether state bans on gay marriage violated the Equal Protection or Due Process Clause, or both.
Five justices of the Court, the four liberals and Justice Kennedy, agreed that the bans did indeed violate both provisions of the 14th Amendment. Writing for the Court, Justice Kennedy said the Framers of the Constitution "did not presume to know the extent of freedom in all of its dimensions, and so they entrusted future generations a charter protecting the right of all persons to enjoy liberty as me we learn its meaning." With "new insights" into liberty's meaning, "The Court now holds that same sex couples may exercise the fundamental right to marry."
In dissent, Chief Justice Roberts argued the "Constitution had nothing to do" with the right granted by the Court. He said the matter should be left to state legislatures. Justice Scalia could hardly restrain his fury with the decision. He wrote that he would hold his head "in a bag" if he were compelled to join the majority's opinion.
In front of the Supreme Court building, lead plaintiff James Obergefell spoke to a crowd of cheering supporters. He said the Court’s opinion “affirms what millions of Americans already knew—that our love is equal.” He said he hoped that the term “gay marriage” would soon become “a thing of the past”—that it would simply become “marriage.”
If Loving, and then later Obergefell, were decided on the basis of the intentions of the framers of the 14th Amendment, those men of the late 1860s, they would have been decided differently. If asked specifically, most of those framers would have said “no”—no, we don’t mean to tell states they cannot prohibit interracial or same-sex marriages. But the words they chose were not narrow. For most justices in Loving and Obergefell, “Liberty” and “Equality” were concepts whose meanings should expand to reflect the insights of later generations.