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.” Wow. 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. |