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

The Economist
2008-05-15

Mildred Loving, law-changer, died on May 2nd, aged 68

The loved each other. That must have been why they decided to get their marriage certificate framed and to hang it up in the bedroom of their house. There was little else in the bedroom, save the bed. Certainly nothing worth locking the front door for on a warm July night in 1958 in Central Point, Virginia. No one came this way, ten miles off the Richmond Turnpike into the dipping hills and the small, poor, scattered farmhouses, unless they had to. But Mildred Loving was suddenly woken to the crash of a door and a torch levelled in her eyes.

All the law enforcement of Caroline county stood round the bed: Sheriff Garnett Brooks, his deputy and the jailer, with guns at their belts. They might have caught them in the act. But as it was, the Lovings were asleep. All the men saw was her black head on the pillow, next to his.

She didn’t even think of it as a Negro head, especially. Her hair could easily set straight or wavy. That was because she had Indian blood, Cherokee from her father and Rappahannock from her mother, as well as black. All colours of people lived in Central Point, blacks with milky skin and whites with tight brown curls, who all passed the same days feeding chickens or smelling tobacco leaves drying, and who all had to use different counters from pure whites when they ate lunch in Bowling Green. They got along. If there was any race Mrs Loving considered herself, it was Indian, like Princess Pocahontas. And Pocahontas had married a white man…

Read the entire article here.

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.

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.