Loving v. Virginia

Context

Laws against interracial marriage were on the books of most of the American colonies before the Revolution. The term miscegenation, referring to sex or marriage between people of two different races, was coined in the course of President Abraham Lincoln’s bid for reelection in 1864, when David Goodman Croly and George Wakeman, two Democratic newspapermen, produced a hoax pamphlet with that term as the title designed to give the impression that Lincoln favored interracial marriage. A majority of states retained their antimiscegenation laws through the nineteenth century and even beyond World War II. Those laws varied widely, however, in how they chose to define interracial, in whether they made interracial marriage a crime, and in whether they would recognize an interracial marriage that took place outside their borders. Some states repealed their laws and never restored them, while seven southern states, including Louisiana and Arkansas, dropped such laws in the 1870s but then restored them by the 1890s. As of 1895, interracial marriage was banned throughout the South.

In 1912 the Georgia congressman Seaborn Roddenbery proposed an amendment to the U.S. Constitution to ban black-white marriages everywhere in the nation, but it did not pass. Nonetheless, between 1913 and 1948, thirty of the forty-eight states maintained laws against interracial marriage. Then, beginning with a four-to-three decision in Perez v. Sharp by the Supreme Court of California in 1948, followed by a series of legislative repeals, all the states outside the South shed those laws; after 1965 only the seventeen states of the South retained them. A newly reapportioned Maryland legislature passed a repeal measure in early 1967, to be effective on June 1, leaving sixteen states with antimiscegenation laws.

Over the years, the Supreme Court had addressed various matters related to marriage. The majority opinion in the 1857 Dred Scott case cited northern laws against interracial marriage as evidence that whites outside the South shared a common disinclination to recognize their African American neighbors as full citizens. In a major precedent, the Court ruled unanimously in Pace v. Alabama (1883) that, where a black man and a white woman had been convicted of living together outside marriage—and under Alabama law at the time, they could not have legally married—it was no violation of their rights that the punishment for their crime was greater than it would have been had they shared a racial identity, white or black. In the 1888 case Maynard v. Hill, the Court stated that marriage has “always been subject to the control of the legislature.” In Plessy v. Ferguson (1896), the Court made passing note of segregation statutes governing marriage on its way to upholding a segregation statute governing railway travel. Between 1954 and 1956 the Supreme Court refused to hear two cases, Jackson v. State of Alabama and the Virginia case Naim v. Naim, regarding antimiscegenation statutes, leaving the statutes intact. And in 1964 the Court expressly chose not to address interracial marriage in a case, McLaughlin v. Florida, that resembled Pace v. Alabama—except that here the Court did throw out as unconstitutional Florida’s statute against interracial cohabitation.

Virginia’s first law against interracial marriage dated from 1691, when a white person who married a nonwhite was subject to exile from the colony—though back in 1614, the marriage between the Native American Pocahontas and the Englishman John Rolfe had brought a peaceful respite to the awful warfare that had been going on between the two peoples. In 1878, following the Civil War and the end of slavery, the legislature overhauled the rules to now subject both parties in a black-white marriage to two to five years in the penitentiary as well as to provide that if a Virginia couple, seeking to evade the statute, went out of state to get married and then returned, the penalties would be the same. Throughout the nineteenth century, a person in Virginia was legally white if less than one-quarter black; that is, a person with three white grandparents and one black grandparent was black, but a person with seven white great-grandparents was white. That law was changed in 1910, so that a person as much as one-sixteenth black was “colored,” and again in 1924, with the Racial Integrity Act, so that any traceable African ancestry resulted in classification as a colored person. Thus the “one-drop” rule of black racial identity came to Virginia’s law of marriage in 1924. The one material change to the law thereafter reduced the minimum prison term to a single year for each party to a marriage between a “white” person and a “colored” person.

In Caroline County, a rural portion of eastern Virginia, Richard Perry Loving was born a white man in 1933, and Mildred Delores Jeter, of African and Native American descent, was born a “colored” woman in 1939. They drove to Washington, D.C., in June 1958 to get married, returned to Caroline County, and were living with her parents about a month later when three law enforcement officers walked into the unlocked house late one night, awoke them, and arrested them for their unlawful marriage. At trial the following January, they pled guilty in accordance with the terms of a plea bargain. Instead of being sent to prison for a year, they were exiled from Virginia; reluctantly, they moved to Washington, D.C.

In 1963, however, Mrs. Loving wrote to Attorney General Robert F. Kennedy at the U.S. Department of Justice for help, and her plea made its way to Bernard S. Cohen, a young lawyer for the American Civil Liberties Union with an office in Alexandria, Virginia. Subsequently joined by another young lawyer, Philip J. Hirschkop, Cohen appealed the 1959 outcome at trial to the original judge, Leon M. Bazile. At issue under the Constitution were the due process and equal protection clauses of the Fourteenth Amendment, according to which governments must not intervene arbitrarily in people’s lives or treat one racial group differently from another. In January 1965, Bazile wrote out a long opinion explaining why the law was constitutional and its application to the Lovings just; he remarked (as Warren would cite in Loving),

Almighty God created the races white, black, yellow, malay and red, 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.

The case went next to the Virginia Supreme Court, which in 1966 upheld the trial judge, and then to the U.S. Supreme Court.

Under Chief Justice Warren, the Court had been relying on the equal protection clause to chip away at the edifice of Jim Crow all the way back to the 1954 Brown v. Board case (with considerable preliminary work along those lines having been accomplished even before Warren came on the Court). Even aside from race, the Warren Court had been attacking impediments to human freedom that state authorities often imposed, whether state failure to provide defense lawyers to indigent defendants in criminal proceedings or state laws restricting access to birth control for married couples. The decision in Loving v. Virginia reflected both impulses, as the case was resolved with the Court’s landmark 1967 ruling striking down laws against interracial marriage.