Mixed Race Studies

Race, Sex, and the Freedom to Marry: Loving v. Virginia

University Press of Kansas
November 2014
296 pages
5-1/2 x 8-1/2
Cloth ISBN 978-0-7006-1999-3, $39.95(s)
Paper ISBN 978-0-7006-2000-5, $19.95(s)
Ebook ISBN 978-0-7006-2048-7

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

In 1958 Mildred Jeter and Richard Loving, two young lovers from Caroline County, Virginia, got married. Soon they were hauled out of their bedroom in the middle of the night and taken to jail. Their crime? Loving was white, Jeter was not, and in Virginia—as in twenty-three other states then—interracial marriage was illegal. Their experience reflected that of countless couples across America since colonial times. And in challenging the laws against their marriage, the Lovings closed the book on that very long chapter in the nation’s history. Race, Sex, and the Freedom to Marry tells the story of this couple and the case that forever changed the law of race and marriage in America.

The story of the Lovings and the case they took to the Supreme Court involved a community, an extended family, and in particular five main characters—the couple, two young attorneys, and a crusty local judge who twice presided over their case—as well as such key dimensions of political and cultural life as race, gender, religion, law, identity, and family. In Race, Sex, and the Freedom to Marry, Peter Wallenstein brings these characters and their legal travails to life, and situates them within the wider context—even at the center—of American history. Along the way, he untangles the arbitrary distinctions that long sorted out Americans by racial identity—distinctions that changed over time, varied across space, and could extend the reach of criminal law into the most remote community. In light of the related legal arguments and historical development, moreover, Wallenstein compares interracial and same-sex marriage.

A fair amount is known about the saga of the Lovings and the historic court decision that permitted them to be married and remain free. And some of what is known, Wallenstein tells us, is actually true. A detailed, in-depth account of the case, as compelling for its legal and historical insights as for its human drama, this book at long last clarifies the events and the personalities that reconfigured race, marriage, and law in America.

Virginia Ban on Interracial Marriages Goes to Federal Court This Week

The New York Times
1965-01-24
page 43

RICHMOND, Jan. 23—A constitutional test of Virginia laws that make it a crime for a white person to marry a Negro will begin here next week. The case is regarded as certain to go to the United States Supreme Court and may become a landmark. Eighteen other states have similar laws that would be affected by a Supreme Court decision in the Virginia case.

In a unanimous opinion last month, the Court struck down a Florida statute punishing extramarital cohabitation by whites and Negroes. It avoided a ruling on state laws against interracial marriage, but the decision raised new doubts about the continuing validity of such laws.

Knew About Law

On Wednesday, lawyers for the American Civil Liberties Union will argue before a three-judge Federal court here that the state’s enforcement of Virginia’s antimiscegenation laws has grossly violated the constitutional rights of Mr. and Mrs. Richard P. Loving, both life-long residents of Virginia.

Mr. Loving, 31 years old, is a big, silent construction worker. He is white. His wife, Mildred, 25, is colored—part Indian and part Negro. Both had spent their lives in Caroline County, just south of Fredericksburg, until January, 1959, when they were banished from the state by County Circuit Judge Leon M. Bazile. They moved to Washington with their three children. Aware of the Virginia law, they had been married in Washington on June 2, 1958.

The charge brought against them five weeks after their marriage was violation of Title 20, Sections 53 and 59 of the Virginia Code:

“If any white person and colored person shall go out of this state for the purpose of being married and with the intention of returning … they shall be punished — by confinement in the penitentiary for not less than one nor more than five years.”

Other sections of the code provide for the annulment of interracial marriages “without any decree of divorce” and for a fine of $200 for performing an interracial marriage ceremony, “of which the informer shall have one-half.”…

Read or purchase the article here.

Mildred Loving, Who Battled Ban on Mixed-Race Marriage, Dies at 68

The New York Times
2008-05-06

Douglas Martin

Mildred Loving, a black woman whose anger over being banished from Virginia for marrying a white man led to a landmark Supreme Court ruling overturning state miscegenation laws, died on May 2 at her home in Central Point, Va. She was 68.

Peggy Fortune, her daughter, said the cause was pneumonia.

The Supreme Court ruling, in 1967, struck down the last group of segregation laws to remain on the books — those requiring separation of the races in marriage. The ruling was unanimous, its opinion written by Chief Justice Earl Warren, who in 1954 wrote the court’s opinion in Brown v. Board of Education, declaring segregated public schools unconstitutional.

In Loving v. Virginia, Warren wrote that miscegenation laws violated the Constitution’s equal protection clause. “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race,” he said.

By their own widely reported accounts, Mrs. Loving and her husband, Richard, were in bed in their modest house in Central Point in the early morning of July 11, 1958, five weeks after their wedding, when the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom and shined flashlights in their eyes. A threatening voice demanded, “Who is this woman you’re sleeping with?”

Mrs. Loving answered, “I’m his wife.”

Mr. Loving pointed to the couple’s marriage certificate hung on the bedroom wall. The sheriff responded, “That’s no good here.”

The certificate was from Washington, D.C., and under Virginia law, a marriage between people of different races performed outside Virginia was as invalid as one done in Virginia. At the time, it was one of 24 states that barred marriages between races…

…Mildred Delores Jeter’s family had lived in Caroline County, Va., for generations, as had the family of Richard Perry Loving. The area was known for friendly relations between races, even though marriages were forbidden. Many people were visibly of mixed race, with Ebony magazine reporting in 1967 that black “youngsters easily passed for white in neighboring towns.”

Mildred’s mother was part Rappahannock Indian, and her father was part Cherokee. She preferred to think of herself as Indian rather than black.

Mildred and Richard began spending time together when he was a rugged-looking 17 and she was a skinny 11-year-old known as Bean. He attended an all-white high school for a year, and she reached 11th grade at an all-black school.

When Mildred became pregnant at 18, they decided to do what was elsewhere deemed the right thing and get married. They both said their initial motive was not to challenge Virginia law.

“We have thought about other people,” Mr. Loving said in an interview with Life magazine in 1966, “but we are not doing it just because somebody had to do it and we wanted to be the ones. We are doing it for us.”…

Read the entire obituary here.

Loving in Virginia: A teacher’s work brings new life to an old case.

University of Virginia College and Graduate School of Arts & Sciences
Newsletter
February 2013

Caroline County, Virginia, 1958. Newlyweds Richard and Mildred Loving wake at 2 a.m. to the sound of their front door being kicked in. Before they are out of bed, the sheriff and two deputies place them under arrest. Their crime: Marriage. Richard, a white man, and Mildred, a black and American Indian woman, had violated Virginia’s Racial Integrity Act, which prohibited interracial marriage. They plead guilty, are convicted on felony charges, and are banished from Virginia. The Lovings spend the next nine years trying to get home.

Most students in historian Grace Hale’s Southern History seminars find it difficult to believe that the Loving’s story is factual, and perhaps even more extraordinary that such events occurred only 55 years ago. Yet in June of 1958, 24 states, including Virginia, prohibited interracial marriage. With Hale they talk through the Voting Rights Act of 1964[5] and the Civil Rights Act of 1965[4]. But these topics, important in their own right, capture only a portion of the important history she teaches. For Hale, the history comes more alive through the story of the Lovings and their nine-year battle that resulted in the 1967 Supreme Court Decision that invalidated all state laws prohibiting interracial marriage. Though she has taught the case for some time, only recently has it carried more weight to her. Just last year, HBO premiered The Loving Story, a documentary that tells the Loving’s dramatic tale, for which Hale served as an historical advisor…

Read the entire article here.

The Crime of Being Married

Life Magazine
1966-03-18
pages 85-
Source: Library of Virginia

Photographs by Grey Villet

A Virginia couple fights to overturn an old law against miscegenation

She is Negro, he is white, and they are married. This puts them in a kind of legal purgatory in their home state of Virginia, which specifically forbids interracial marriage.

Last week Mildred and Richard Loving lost one more round in a seven-year legal battle, when the Virginia Supreme Court upheld the constitutionality of the state’s antimiscegenation law. Once again they and their three children were faced with the loss of home and livelihood…

Read the article here.

The Loving Story

Home Box Office (HBO)
2012-02-14, 21:00 EST

Nancy Buirski, Director and Producer

In June 2, 1958, a white man named Richard Loving and his part-black, part-Cherokee fiancée Mildred Jeter travelled from Caroline County, VA to Washington, D.C. to be married. At the time, interracial marriage was illegal in 21 states, including Virginia. Back home two weeks later, the newlyweds were arrested, tried and convicted of the felony crime of “miscegenation.” To avoid a one-year jail sentence, the Lovings agreed to leave the state; they could return to Virginia, but only separately. Living in exile in D.C. with their children, the Lovings missed their families and dearly wanted to return to their rural home. At the advice of her cousin, Mildred wrote a letter to Attorney General Robert F. Kennedy, who wrote her back suggesting she get in touch with the American Civil Liberties Union.

Two young ACLU lawyers, Bernard S. Cohen and Philip J. Hirschkop, took on the Lovings’ case, fully aware of the challenges posed at a time when many Americans were vehement about segregation and maintaining the “purity of the races.” In interviews filmed at the time, the two lawyers dissect the absurdities of the laws and the difficulties of trying a case over five years old. Today, Hirschkop recalls that Mildred was quiet and articulate, while joking that his initial impression of Richard was that he looked like a crew-cut “redneck.” As they came to know them, however, it became apparent that the couple was deeply committed to each other. With an eye towards taking their case to the highest possible court, Cohen filed a motion to vacate the judgment on the Lovings’ original conviction and set aside the sentence. Local Judge Leon Bazile denied the motion, stating that God had separated people by continents and did not “intend for the races to mix.” After the Virginia Supreme Court responded with similarly antiquated and racist sentiments, Cohen and Hirschkop seized the opportunity to take the case to the U.S. Supreme Court.

Although the odds of getting a case heard by the Court were slim, Cohen and Hirschkop learned that Loving v. Virginia would be heard on April 10, 1967. Aware that their case had the potential to set a landmark precedent, the two green lawyers (Hirschkop was only two years out of law school and had never argued before the Supreme Court) prepped in New York before heading to the famous Supreme Court building in D.C. In oral arguments heard on audiotape, the State compared anti-miscegenation statutes to the right to prohibit incest, polygamy, and underage marriage, claiming that children are victims in an interracial marriage. The plaintiff’s lawyers, by contrast, included legal arguments interspersed with references to sociology and anthropology. And though the Lovings chose not to attend, Cohen may have made the most compelling case by relaying to Chief Justice Warren and his fellow judges Richard’s simple message: “Tell the court that I love my wife, and it is unfair that I can’t live with her in Virginia.”

After a two-month wait, the U.S. Supreme Court ruled unanimously in favor of the Lovings on June 12, 1967. This precedent-setting decision resulted in 16 states being ordered to overturn their bans on interracial marriage. Alabama was the last holdout, finally repealing its anti-miscegenation law in 2000.

Long Way Home: The Loving Story

Augusta Films
2010

Director and Producer: Nancy Buirski
Producer and Editor: Elisabeth Haviland James

Richard and Mildred Loving, Circa 1967

This documentary feature film, currently in production, tells the dramatic story of Mildred and Richard Loving, a black and Cherokee woman married to a white man (against the law in 1958-Virginia) and of their famous anti-miscegenation case argued in the Supreme Court in 1967. Thrown into rat-infested jails and exiled from their hometown for 25 years, the Lovings fought back and changed history. Using rare archival footage, home movies, photographs, interviews with witnesses, friends and family, and poetic visual and narrative sequences, the documentary will build a complex portrait of the couple at the heart of marriage equality in this country. It will also do something rare in storytelling—look at the story itself as it has mutated over the years, with the understanding that history is only as reliable as those who tell it.

Both of the attorneys, Bernie Cohen and Philip Hirschkop, who represented Mildred and Richard Loving in the 1967 Supreme Court case Loving v. Virginia have agreed to participate in the project as consultants and as on-camera interviews.  In addition, Peggy Loving Fortune and Sidney Jeter Loving, the surviving children of Mildred and Richard have agreed to be on-camera participants. This is notable because, like their mother, they have guarded their privacy and avoided media attention for most of their lives.

For more information, click here. To donate to the project, click here.

The Law: Anti-Miscegenation Statutes: Repugnant Indeed

Time Magazine
1967-06-23

Judge Leon Bazile looked down at Richard Loving and Mildred Jeter Loving as they stood before him in 1959 in the Caroline County, Va. courtroom. “Almighty God,” he intoned, “created the races white, black, yellow, Malay and red, and he placed them on separate continents. The fact that he separated the races shows that he did not intend for the races to mix.” With that, Judge Bazile sentenced the newlywed Lovings to one year in jail. Their crime: Mildred is part Negro, part Indian, and Richard is white.

In Virginia, as in 15 other states (the number was once as high as 30), there is a law barring white and colored persons from intermarrying. The Lovings could have avoided the sentence simply by leaving the state, but they eventually decided to fight the Virginia antimiscegenation law “on the ground that it was repugnant to the 14th Amendment.” In rare unanimity, all nine Supreme Court Justices agreed last week that it was repugnant indeed.

Read the entire article here.

“Tell the Court I Love My [Indian] Wife” Interrogating Race and Self-Identity in Loving v. Virginia

Souls: A Critical Journal of Black Politics, Culture, and Society
Volume 8, Issue 1 (April 2006)
pages 67-80
DOI: 10.1080/10999940500516983

Arica L. Coleman, Assistant Professor of Black American Studies
Unverisity of Delaware

The article reexamines the Loving V. Virginia case by focusing on their tri-racial community of Central Point, Virginia and Mildred Loving‘s self identity as an Indian woman. Loving’s self identity was informed by the twentieth-century politics of racial purity, which resulted in a community-wide denial of African ancestry. I argue that Mildred Loving’s marriage to a white man was not an affirmation of Black/white intermarriage, but rather adhered to the code of racial purity as defined by the state of Virginia, a legacy which continues in the post-Civil Rights era.

The 1967 case of Loving v. Virginia, in which the Supreme Court declared anti-miscegenation laws unconstitutional, has garnered far less scholarly attention than its 1954 predecessor. Brown v. the Board of Education, which overturned legalized segregation. What little appeared in the way of scholarship has focused on analysis the history the history of anti-miscegenation legislation, the events which led up to the case presentation before the nine justices, the legal precedents regarding the arguments presented before the court, and the unanimous decision delivered by Chief Justice Earl Warren. Until recently with the exception of an article which appeared in Ebony magazine several months after the Supreme Court decision, writers have given little attention to the personal lives of the actual plaintiffs now enshrined in American history, as “the couple that rocked the courts.”…

Read or purchase the article here.

The Blurring of the Lines: Children and Bans on Interrracial Unions and Same-Sex Marriages

Fordham Law Review
May 2008
Volume 76, Number 6
pages 2733-2770

Carlos A. Ball, Professor of Law and Judge Frederick Lacey Scholar
Rutgers University School of Law, Newark

When Richard Loving and Mildred Jeter drove from their hometown of Central Point, Virginia, to Washington, D.C., on June 2, 1958, in order to get married, Mildred was several months pregnant Later that year—a few weeks before the couple pled guilty to having violated Virginia’s antimiscegenation law—Mildred gave birth to a baby girl. Richard and Mildred had two more children, a son born in 1959 and a second daughter born a year after that.

The legal commentary on Loving v. Virginia usually does not discuss the fact that the couple had children. In some ways, this is not surprising given that their status as parents was not directly relevant to either their violation of the Virginia statute, or to their subsequent constitutional challenge to that law. Concerns about the creation of interracial children, however, were one of the primary reasons why antimiscegenation laws were first enacted in colonial America and why they were later adopted and retained by many states. It is not possible, in other words, to understand fully the historical roots and purposes of antimiscegenation laws without an assessment of the role that concerns related to interracial children played in their enactment and enforcement.

The offspring of interracial unions were threatening to whites primarily because they blurred the lines between what many of them understood to be a naturally superior white race and a naturally inferior black race. As long as there was a clear distinction between the two racial categories—in other words, as long as the two categories could be thought to be mutually exclusive—then the hierarchical racial regimes represented first by slavery, and later by legal segregation, could be more effectively defended. The existence of interracial children destabilized and threatened the understanding of racial groups as essentialized categories that existed prior to, and independent of, human norms and understandings. To put it differently, interracial children showed that racial categories, seemingly distinct and immutable, were instead highly malleable. Therefore, from a white supremacy perspective, it was important to try to deter the creation of interracial children as much as possible, and the ban on interracial marriage was a crucial means to attaining that goal.

Although it is possible to disagree on how much progress we have made as a society in de-essentializing race, it is (or it should be) clear that an essentialized and static understanding of race is both descriptively and normatively inconsistent with the multicultural American society in which we live. In fact, it would seem that we have made more progress in deessentializing race than we have in de-essentializing sex/gender. One of the best examples of this difference in progress is that while we no longer, as a legal matter, think of the intersection of race and marriage in essentialized ways, legal arguments against same-sex marriage are still very much grounded in an essentialized (and binary) understanding of sex/gender.

The conservative critique of same-sex marriage is premised on the idea that men and women are different in essential and complementary ways and that these differences justify the denial of marriage to same-sex couples.  One of the most important of these differences relate to the raising of children. The reasoning—which is found in the arguments of conservative commentators, in the briefs of states defending same-sex marriage bans, and in some of the judicial opinions upholding those bans—is that there is something unique to women as mothers and something (separately) unique to men as fathers that makes different-sex couples able to parent in certain valuable ways that same-sex couples cannot.

These arguments continue to resonate legally and politically because our laws and culture continue to think about sex/gender in essentialized and binary ways. In fact, one of the reasons why same-sex marriage is so threatening to so many is that the raising of children by same-sex couples blurs the boundaries of seemingly preexisting and static sex/gender categories in the same way that the progeny of interracial unions blur seemingly preexisting and static racial categories…

Read the entire article here.