April 17, 2013 • 36 mins
Mildred and Richard Loving's relationship went all the way to the U.S. Supreme Court when they were arrested for breaking Virginia's anti-miscegenation laws. On June 20, 1963, Mildred wrote a letter to the ACLU asking for help. Tune in to learn more.
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Episode Transcript
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Speaker 1 (00:01):
Welcome to Stuff You Missed in History Class from how
Stuff Works dot Com. Hi, and welcome to the podcast.
I'm Tracy V. Wilson and I'm Holly Fry. Holly, can
I tell you a story? Please do. It's about what
(00:22):
we're going to talk about today. My other half Patrick,
his parents got married in New Orleans in the mid
nineteen sixties and they had to submit documentation of their
race in order to get a marriage license. That seems
so bizarre to me. Me too. He doesn't remember the details,
and unfortunately his parents have both passed away, so he
(00:44):
can't ask them. But in his memory, they each had
to prove that they weren't more than one eighth black
or in the language of the time, Negro. If either
one of them had been one race and the other not,
their marriage would have been a felony in Louisiana as
well as in many other states. Um So, this law
(01:04):
that we're talking about today are a series of laws,
the antim missagination laws that were in the South at
the time. They were affecting a lot of people of
every race. Even though the laws themselves were mostly focused
on marriages with one white person and one person of
another race. So in the discussion of Loving versus Virginia,
which we're going to talk about today, it often is
(01:26):
focused on the civil rights movement and what the ruling
meant to African Americans, which is absolutely the right way
to look at it, because antimissagination laws were horribly demeaning
to African American people. It was also a law that
applied to the rights of everyone of every race, so
it had a broad application apart from the fact that
(01:48):
antim missagination laws were really a product of slavery and
we're racist in their origin, and that is a thing
that the Supreme Court eventually ruled. And you are then,
no matter what your race, burdened with proving it just
to be with the person you want to spend your
life with, which is a bizarre hoop to have to
(02:10):
jump through. It is. I knew that that there were
antim assassination laws in effect and a lot of the
United States before Loving versus Virginia, I did not realize
that there were states that had sort of a proof
step before you could marry someone. Yeah, I mean there
have been the blood tests, and well, the bloods are
(02:31):
elements the proof of your racial heritage. Yeah, proof of
race was a new one. I would think that would
be in some cases hard to prove. That is one
of the things that came up before the Supreme Court.
So we're going to start back at the Lovings in
this part of this story. After getting the letter that
Mildred Loving sent to them in nineteen sixty three asking
(02:53):
them for help, the A. C. O. You referred the
Lovings to Bernard S. Cohen, who we quote it in
the first part of this podcast is saying that when
he told the Lovings that their case was probably going
to go to the Supreme Court, his jaw dropped. It
had been four years since the Lovings guilty verdict and
Virginia law required appeals to be filed within a hundred
(03:16):
and twenty days, so since their sentence had been suspended
as long as they stayed outside of Virginia for twenty
five years, Cohen determined that the case could be reopened
if they violated that court order. So they came home
for a visit and were arrested, and Cohen filed a
motion before Judge Bazil on November six, nineteen sixty three,
(03:37):
asking for the charges to be dismissed. He was arguing
that the law was unconstitutional. He cited that it violated
the equal protection claws of the Fourteenth Amendment and denied
the Lovings the fundamental right of marriage. Judge Basil did
not act on this motion, and months went by. Cohen
met during this time civil rights lawyer Philip J. Hirshkop.
(03:58):
Hirshkop and Cohen had both been students of zet and
To at Georgetown when they were studying law, so hirsch
Kop joined Cohen's firm and they worked together on the
Loving case for the next three years, and the two
attorneys together filed a motion in federal court in October
on they of October in nine four, asking a panel
(04:19):
of judges to address Judge Basil's refusal to act. The
judges directed Judge Basil to make a ruling or the
case would automatically be moved to federal court. They also
ruled that Mildred and Richard could return to Virginia together
while the case was in progress, So that was kind
of a big shift in what had already been established. Right.
They moved to a racially mixed neighborhood in King and
(04:41):
Queen County, Virginia. Their home life was pretty quiet. As
as we talked about in the first episode, it was
a region of Virginia that that did not get a
lot into each other's business racially. That that's sort of
how it was reported that that people kind of let
each other mind their own business. So their home life
(05:01):
is pretty quiet. But Cohen and hirsch Kop became the
targets of threats and harassment because of their representation of
the Lovings, and some of it was related to their
both being Jewish. So while the Lovings were having a
pretty quiet home life, all stuff was in the works,
their attorneys were really getting a lot of harassment. And
then finally on January twenty two nine, so several months
(05:25):
have gone by at that point, Judge Basil issued an
order denying Cohen's motion. In it, he stated, quote, Almighty
God created the races white, black, yellow, Malay, and red.
He placed them on separate continents. 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
(05:45):
did not intend for the races to mix. This quote
became infamous. It was cited repeatedly as an example of
of racism, Essentially, Cohen and hirsch Kop appealed, and they
asked for the case to be heard in federal a court. Instead,
it was heard in the Supreme Court of Appeals in Virginia,
which denied the loving's appeal in March of nineteen sixty six.
(06:08):
The next step, next step Supreme Court. Cohen and Hirschkop
filed a notice of appeal with the U. S. Supreme
Court on July nineteen sixty six. Melvin L. Wolf and
David Carliner, who were both prominent A c ou lawyers,
helped them prepare the statement and the brief that followed,
and since they were appealing a lower court's ruling, the
(06:29):
attorneys had to prove that a federal or constitutional issue
was at stake, So Cohen and Hurtchkop built an argument
that focused on their racial integrity statue as discriminatory, denying
the due process and equal protection guaranteed under the Fourteenth Amendment,
as well as other basic civil rights. Virginia's racial Integrity
Statute included ten sections, while Mildred and Richard had only
(06:53):
been charged with breaking two of them. Cohen and Hurtchkop's
twenty page statement referred to all ten sections of the
code and the hope that the Supreme Court would overturn
the whole thing. They justified this by saying that if
only those two parts were stricken down, then Mildred and
Richard would just be found guilty of one of the
other parts and stripped of their right to marry again.
(07:13):
They also cited the Supreme Court's ruling in Brown versus
Aboard of Education and McLaughlin versus Florida, which was school
integration and different treatment of race in adultery and lewd
cohabitation from our previous episode, so they cited those rulings
among others. Cohen and Hirshcock's statement also explained how the
law was disrupting the lovings lives. They couldn't live together
(07:37):
in their hometown and raised their children. Their children were
branded as illegitimate because their parents marriage wasn't valid. If
one of the Lovings died, the other wouldn't get Social
Security survivor benefits, and their children wouldn't automatically inherit their
property if their parents died. So basically, the Lovings are
being excluded from legal protections that are granted to other
(07:58):
families because of their ace. The Supreme Court's clerk asked
the Virginia Attorney General to respond, and on November eighteenth
of nineteen sixty six, the State of Virginia filed a
twenty three page reply and asked the Supreme Court not
to consider the case. The state's argument was that the
law didn't violate the Fourteenth Amendment and that the framers
(08:20):
of the amendment did not intend for it to keep
states from regulating marriage, and Virginia argued that numerous other
decisions by both state and federal courts had upheld antimesagination
statutes already. The State of Virginia also asked the court
not to consider any of the ten sections of their
antim Misagination Code other than the two under which the
(08:41):
Lovings were actually charged. The Supreme Court got all of
this information and on December twelfth, nineteen sixty six, and
announced that it would hear the case and that oral
arguments would take place on April tenth, nineteen sixty seven.
So now we're getting to the actual Supreme Court hearing. Yes. So.
Cohen and hurch Cop prepared for the Supreme Court case,
(09:02):
along with several other a cel You lawyers and civil
rights experts, and they conferred with psychologists and sociologists and
biologists who all specialized in interracial relationships and the well
being of children with parents of different races. So the
way that this works is that both parties submit a
brief to the Supreme Court. The Supreme Court has time
to review all of that before hearing oral arguments. So
(09:25):
Cohen and Hirsch Coop submitted a forty page brief to
the Supreme Court on February seventeenth of nineteen sixty seven,
and it outlines six key points and I'm just going
to read them as they are written down in a
book called Supreme Court Milestones, Loving versus Virginia by Susan
Dudley Gold. So their points were the entire ten sections
(09:47):
of Virginia's antimissagination code should be abolished based on their history.
Virginia's laws against interracial marriage where quote relics of slavery
and expressions of racism, laws against interracial mayor edge caused
quote immeasurable social harm. Despite the historical record, the Fourteenth
Amendment did not exempt state antimexgination laws from its requirements.
(10:10):
Virginia's laws against interracial marriage were racially discriminatory and denied
the loving's equal protection of the laws. And the laws
also violated the Fourteenth Amendments due process claws, and the
brief went into detail about each of these points, arguing
that the idea of racial purity quotes paralleled Hitler's hope
of creating a super race, and that the laws were
(10:32):
quote a present day incarnation of an ancient evil, and
they tied that into the concept of white slave owners
raping their slaves, that they set up a case system,
and that the laws were tied to an idea of
a pure race when there was really no proof that
any such thing existed. That comes up a lot in
the arguments the idea of whether there is a pure
(10:54):
race and why the focus on this pure race is
on the white race and not other races is Cohen
and Hirschkop also noted in a footnote that had Pocahonis
and John Rolf been living in Virginia at that present time,
they could not have married one another. The State of
Virginia submitted a fifty two page brief on March twenty,
(11:15):
nineteen sixty seven, which was prepared by the States legal
team Attorney General Robert Y. Button and Assistant Attorneys General
Kenneth C. Patty and R. D. Mcelwaine. Virginia's argument was
number one that the law was not unconstitutional and that
many other rulings had said so, that it was not
the court's role to overturn rulings based on sociological, biological,
(11:39):
and inthropological research, and that if the Court did, that
research would be contradictory. Virginia argued that the codes did
not violate the Fourteenth Amendment because it was not the
intent of the framers of the Fourteenth Amendment to include
anti missagination laws and its scope. The next twenty four pages,
so almost half of the document was about the legislative
(12:00):
history of the Fourteenth Amendment. There were five additional ammicky
Courier friend of the Court, not directly involved in the
proceedings but offering additional information briefs. UH four were in
the Loving's favor and one was in Virginia's favor. The
one in Virginia's favor was written by the state of
North Carolina. North Carolina had antim asssgnation laws that were
(12:23):
very like what was on the books in Virginia at
the time. The only one of these that was actually
permitted to argue before the court was the Japanese American
Citizens League. The other briefs in favor of the Lovings
were from the Inn Double A CP, the Legal Defense
and Education Fund in Double A CP, which filed separately,
and a coalition of Catholic bishops and other Catholic social organizations.
(12:47):
These briefs were largely focused on equal protection and due process.
The Catholic Organization's brief added to that that the antim
assassination laws violated the First Amendment by keeping people from
exercise in their religious freedoms, saying that marriage was quote
a fundamental act of religion. The oral arguments took place
on April tenth of nine seven, and you can actually
(13:10):
listen to the entire oral argument online, which Tracy has
been doing a lot of. I listened to the whole
oral argument and we will put a link to that
in our show notes if you would like to listen
to it. Also, um, we're going to talk about the
oral argument, both the part that was in the Loving's
favor and the part that was argued for Virginia. So
for the Lovings, Cohen and hirsch Kopp divided the time
that they were allowed to have, with hirsch Kopp arguing
(13:32):
the equal protection portion and Cohen presenting the due process
portion of their argument. Hirsch Kop was only about two
years into his career, and to argue before the Supreme Court,
a lawyer had to have been admitted to the highest
court in the state or territory or the district of
Columbia for three years. So Cohen had to move that
Hirshkoff be admitted pro Hockbeach, which is sort of a
(13:55):
just for this time, I would like this person to
be able to argue this case with me. So it's
a one time dispensation. Yes, yes, he got a one
time dispense dispensation. He's really early in his career at
this point. So Hitchcock went first with his points on
equal protection and on the race hysteria that had prompted
the Virginia codes in question and other codes similar to it.
(14:17):
He started right out of the gate with classifying the
racial Integrity Statute as a slavery law. He does not
pull any punches with that either. That's one of the
first sentences out of his mouth is that the Racial
Integrity Statute is a slavery law. He also pointed out
that a lot of the immigration and racial purity laws
that had come into play at about that time happened
when northern states were worried about the influx of Irish
(14:40):
and Italian immigrants, and western states were worried about Asian immigrants.
So these states that had worries about the immigration of
people that were coming into their their part of the country,
they built on post Civil war laws that we're governing race.
So as sort of a side note here, that there's
a whole a lot of talk about the South in
(15:01):
this case, because the antim assignation laws were all in
the South at that point, but there was racism and
a lot of the rest of the world that directly
fed into this whole argument. The idea of racial integrity
was really tied to the idea of white supremacy because
in almost all cases, the primary focus of antim assignation
(15:23):
laws was preventing white people for marrying people of other races,
So the focus was on keeping the white blood pure
and not that of other races. And he wrapped up
his argument with a reiteration, that's the laws in question. Again.
He was like slavery. He circled right back to that
slavery law. But that's kind of how he booke ended
(15:44):
his whole presentation. Cohen followed, and his argument was about
due process. There was more back and forth between Cohen
and the Supreme Court justices than with hirsh cop. He
argued that the equal protection argument was pretty strong, but
he was there was worry that if the Court only
found a violation of the equal protection clause, that Virginia
(16:07):
could pass other discriminatory laws, that they would be okay
because they were quote equal. So they would just equalize
by passing more restrictive laws. They would equalize the law
by saying that white people could only marry white people,
and African Americans could only marry African Americans, and the
Asians could only marry Asians, and that that would be equal. Uh.
(16:27):
So they were building a due process argument to try
to counteract that possibility. Cohen also passed on Richard Loving's
famously quoted line to the court as an example that
even a layperson has a fundamental understanding of what's fair,
and he tied that into the idea of due process.
And that quote from Richard Loving was tell the court,
(16:49):
I love my wife and it is just unfair that
I can't live with her. In Virginia, Justice Potter Stewart
questioned Cohen about how this due process argument might apply to,
for example, first cousins or siblings marrying, and Cohen responded
that states could still make marriage laws based on reasonable reasons,
but that making them based on race was in fact
(17:10):
not reasonable. He argued that the fourteenth Amendment was an
amendment written as protection against racial discrimination. In that light,
it applied very clearly and strongly to the loving case.
Cohen called race quote just not acceptable grounds, but an
arbitrary and capricious ground for denying marriage. They spent a
great deal of time discussing the idea of cousins marrying
(17:32):
in the actual case. Yeah, when you were hearing when
you listen to the oral argument, there's a fair amount
of questioning about whether this precedent would apply to other
things that are regarded as not okay, like the age
or how closely people are related, uh, that sort of thing.
And so there's a pretty good amount of back and
(17:53):
forth between the justices and Cohen when talking about that
part of it. Um Cohen also poked a whole in
the state's argument that there had been debate about antimsagenation
laws in the context of the passage of the Fourteenth Amendment.
He noted that all of that debate really happened in
the context of the Civil Rights Act of eighteen sixty six,
(18:14):
not the Fourteenth Amendment. He called the racial integrity statutes
in Virginia quote odious to the Fourteenth Amendment. Cohen also
posed the question of exactly what danger would there be
to Virginia, to the people of Virginia that these laws
were trying to prevent, Like, what will it harm anyone
else if we allowed couples like this to marry? Right.
(18:36):
That came up when Virginia was making its argument, which
we'll talk about and in a moment. First there was
the the one other person who was allowed to make
an argument for the lovings in this in the oral arguments.
That was William Martani, who was the attorney for the
Japanese American Citizens League, and he got fifteen minutes to
(18:57):
speak to the Supreme Court. He made a personal appeal
as a niece, which is a person, an American person
born of Japanese parents, and his point of view was
that that made him one of the very few people
in the courtroom, apart from the other nissa who were watching,
who could definitively say what their race was, all the
(19:17):
way back in the melting pot of America, he said,
it would be just about impossible to prove that you
had quote no trace whatever of any blood other than Caucasian,
which is what the Virginia law required. He also noted
that anthropologists really reject the idea of quote, a pure race,
(19:37):
but that with scholars saying there's no such thing as
a pure race, the state of Virginia would have lay
people assigning race to people using their physical features, which
have quote no legislative purpose. Maritani also repeated the argument
that the Virginia law was clearly about white supremacy, since
the laws only governed the purity of white people's blood,
(19:59):
and we're not concerned with anyone else's racial purity. He
also kind of nods to the reluctance that we talked
about before that the court had seemed to show in
getting into race relations, because Maratoni noted that striking down
antim assagnation laws wasn't going to make anyone do anything
they didn't want to do. That wasn't gonna make people
(20:20):
have to go marry some one of another race if
they didn't want to, the way it had made schools
integrate when people didn't want to. So instead, what was
going to happen if they struck down antimissagnation laws was
to restore the freedom of choice to everyone, including people
who didn't actually agree with in our marriage between the races.
(20:40):
And that concluded the arguments in favor of the Lovings.
And then for the Commonwealth of Virginia, Assistant Attorney General R. D.
Mc owing the third presented the state's case, and he
stressed again that the States wish that the court focus
just on the two parts of the statute that Richard
and Mildred had been found guilty of breaking. Chief Justice
(21:02):
Earl Lawren started questioning him pretty early in his presentation,
and he asked about the provision in Virginia law that
a white person could marry a quote North American Indian
if that person had less than one sixteenth Indian blood.
Mcawaine said that was a special provision and that he
himself could see some constitutional problems with it, but he
(21:25):
claimed that the reason that the law in Virginia was
focused on white people marrying black people was because seventy
percent of the Virginia population was white and was black,
leaving the remaining one percent kind of not really worth
worrying about in terms of racial purity. That was almost
his exact warreds he he he was like, well, you've
(21:46):
got seventy nine percent who were white and twenty percent
who were black, and the remaining one percent not a
really a lot to worry about. Not Jermaine to their thinking. Uh,
he argued that the law was equal because black people
couldn't marry white people and white people couldn't very black people.
So he just kind of inverted it and said, see,
that's equal rights, the same for both sides. The court
then asked him whether an interracial couple who had lived
(22:09):
somewhere else and gotten married and then moved to Virginia
would be breaking a law. So if you lived in
Virginia and then you moved somewhere else to get or
went somewhere else to get married and then came back
to Virginia to skirt the law, that was illegal, and
his argument was that no, it would not be illegal.
But then there was some discussion about whether states needed
to recognize marriages that were valid in other states, but
(22:33):
not valid in that particular state. And they went back
and forth about that for a while, and then mclwaine
went on to make two main arguments. First, he reviewed
the history of the fourteenth Amendment and its passage at length,
saying that that the debates leading to its passage showed
it was not intended to prevent anti missgenation laws. And
then he went on to argue that even if the
(22:55):
Amendment was intended to prevent those laws, Virginia's intent was
to prevent quote the sociological and psychological evils which attend
interracial marriages, basically arguing that those laws were right and reasonable.
So Chief Justice Earl Warren asked him a lot of
pointed questions about the state's position that antim assassination laws
(23:15):
had been discussed in the debate around the fourteenth Amendment. Remember,
the legal team for the Lovings had already alleged that
that was not the case, and mcowain explained that it really.
He eventually, after some hedging, brought up that it was
the Freedman's Bureau Bill and the Civil Rights Act of
eighteen sixty six. But he argued that that the language
(23:38):
from those two things had made it in whole cloth
into the fourteenth Amendment, meaning that people didn't discuss them
in the Fourteenth Amendment discussions because they had been already
discussed and decided on elsewhere, so why continue to talk
about it? And he reiterated the state's rights argument and
the argument that states needed to be able to do
what was right in their own particular population and saying, quote,
(24:01):
there is a rational classification setting so far as the
Virginia population is concerned for preventing marriages between white and
colored people, who make up almost the entirety of the
state population, and that this is supported by the prevailing
climate of scientific opinion. He tied the interracial marriage conversation
to bigamy and incest and said that families that were
(24:22):
intermarried had excessive hardships from society. And he got into
pretty lengthy conversation with some of the justices, particularly Chief
Justice Warren and Justice Hugo. Black, about the research that
was tied to race and marriage. Essentially, mcawaen kept appearing
to cite studies that were biased while ignoring the studies
(24:45):
that that ran contrary to the position that he was making.
Chief Justice Warren was not tolerant of that, Chief Justice
Warren kept pointing out things that contradicted the evidence that
mclwaine was presented ing, and eventually Justice Hugo. Black said
to him, Matta, ask you this question, aside from all
(25:06):
questions from the genetics, psychology, psychiatry, sociology, and everything else,
aside from all of them, forgetting it for the moment,
is there any doubt in your mind that the object
of this statute, the basic promise on which they rest,
is that white people are the superiors of the colored
people and should not be permitted to marry. So mcawain
(25:30):
tried to get out of answering this question, and then, finally,
after some various sort of angled attempts at answering it,
acknowledge that, yes, when those laws were set down, they
were definitely racist when they were past, but he tried
to argue that they were still justifiable as he was
arguing them before the Supreme Court, and the justices also
(25:54):
asked how he thought they should rule in light of
Brown versus Board of Education, and mcawayne's stated that education
was a fundamental right, just as John M. Harland then
asked whether marriage was also an equally important right, and
mc Owen said that marriage was not equal. Children are
required to go to school, but no one is required
to marry. After mcawaan's time was up, Cohen only had
(26:17):
a few minutes for his rebuttal, and I'm sort of
extrapolating based on what he says. He did not really
talk a lot about the specific arguments that the state
had made. I think that people were pretty confident that
the state had not made a good case. So what
he spent most of that time talking about was the
necessity that the court beside on all ten sections of
(26:39):
the Code, and not just the two that the Lovings
had been charged with breaking. Um. He reiterated the rights
that Richard and Mildred had to their home and their
family and their children, and and tried to make a
strong case that if they only struck down two parts
of the Code, that their rights would be disrupted by
(27:00):
the rest of the code, and that concluded the oral arguments,
as happens in Supreme Court cases. Then there was a
long time before the Court issued an opinion, and on
June twelfth, nineteen sixty seven, Chief Justice Earl Warren delivered
the Court's opinion. It unanimously decided to overturn Virginia's entire
(27:22):
code of racial purity laws, and he cited that using
race to restrict the freedom to marry violated the equal
protection clause and that the lovings had been denied due process. So,
from the opinion, a quote is quote, there can be
no question but that Virginia's misaggenation statutes rest solely upon
distinctions drawn according to race. The statutes prescribed generally accepted
(27:46):
conduct if engaged in by members of different races. Over
the years, this Court has consistently repudiated distinctions between citizens
solely because of their ancestry as being odious who free
people whose institutions are founded upon the doctrine of equality.
The court also noted that because the law only dealt
(28:07):
with white people marrying other people of other races, it
was clearly meant meant to quote maintain white supremacy. And
also from that opinion, another great quote is that marriage
is one of the basic civil rights of man, fundamental
to our very existence and survival. Justice Stewart also noted
in a separate opinion that a state law cannot make
(28:28):
an act a crime because of the race of the
person doing it, So you can't take a generally legal
activity and make it illegal because of the race of
the person. Um. This decision avoided all of the antim
assasination laws in all sixteen states that were still banning
interracial marriages at the time. So huge change, giant change
(28:52):
in uh the legal status of marriage in many many places.
So the Warren Court was pretty sweeping in a lot
of ways, and this is an example of that. Um
So what happened next holly well. Even though the courts
ruling voided the antime assagenation laws, a lot of those
laws remained on the books and several states for some time.
So Virginia repealed them in nineteen sixty eight, but still
(29:14):
had definitions of different races on the books until nineteen
seventy five. Florida, Oklahoma, Missouri, Texas, and West Virginia had
repealed their laws by nineteen sixty nine. Tennessee citizens voted
to repeal that state's laws in nineteen seventy eight. Mississippi
had a ban on interracial marriage in its state constitution
until nineteen eighty seven. South Carolina had a section in
(29:38):
its constitution barring marriages between white people and anyone with
more than one eighth African blood until Alabama was the
last state to repeal it's antime assagenation laws, and that
was in two thousand after a popular vote. Sixty had
voted in favor of repeal. So you'll still see sometimes
stories come up in the news of people who are
(30:00):
denied marriage because of their race. But at this point,
if someone does that, it is illegal, and we can
talk about the Lovings. What happened to them. So they
moved back to Central Point, to their hometown where they
always wanted to be and always wanted to raise their children,
and they kind of layed low after that. They stayed
out of the spotlight. They didn't like become I think
if this had all happened today, it would be very
(30:20):
different because they would probably be hounded by reporters and
reality TV producers right if nothing else. They would probably
have been in today's time, really pressured to to become
sort of evangelists for the civil rights movement. But they
really they they politely declined the media spotlight after they
moved back. Sadly, they were in a car accident in
(30:43):
ninety five in which they were hit by a drunk
driver and Richard was killed and Mildred lost the sight
in one eye. UM. She later died in pneumonia in
May of two thousand and eight. UM there was a
nine TV movie made about their story called Mr. And
Mrs Loving, and then there was another on HBO, a
(31:05):
documentary called The Loving Story, and that premiered just last
year on Allen Hine's Day, so Valentine's Day of uh.
And it will actually be out on DVD shortly. I
really wanted to watch it before doing this episode, but
it it was not available to me by any legal means,
so you will have to wait until June twelve is
the anniversary of the Supreme Court's ruling and it is
(31:27):
unofficially celebrated as Loving Day. And also Mildred who really
she She didn't give a lot of interviews. She she
pretty much kept to herself after especially after her husband's death.
She gave a statement about the freedom to Mary in
two thousand seven, so about a year before her death
and her statement here's here's an excerpt of it. Surrounded
(31:50):
as I am now by wonderful children and grandchildren, not
a day goes by that I don't think of Richard
and our love all right to Mary, and how much
it meant to me to have that freedom to marry
the person precious to me, even if others thought that
he was the wrong kind of person for me to marry.
I believe all Americans, no matter their race, no matter
(32:10):
their sex, no matter their sexual orientation, should have the
same freedom to marry. Government has no business imposing some
people's religious beliefs over others, especially if it denies people's
civil rights. 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,
(32:32):
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. I love her. That
is my one personal side that is not based on
(32:55):
any documented research. I think that's lovely. It is. It's
quite a like see for someone to leave. Yeah, and
um that that's why this case has been cited pretty
often in in the Defense of Marriage Act in proposition
eight cases that are before the Supreme Court as we
record this um. The Loving versus of Virginia case has
(33:16):
been cited a lot, But I don't know that many
people really know the whole story of that, so I
hope people have enjoyed learning about it in this episode.
And do you also have listener mail? I do. This
listener mail is from Linda. Linda says, I just finished
listening to your trial of Goody Garlic podcast. I couldn't
believe it when you stated that this incident took place
(33:37):
in East Hampton. I had recently listened to your podcast
on Johnny Applefeed and was surprised to learn that he
grew up in Long Meadow, Massachusetts, where I have lived
for the past ten years. Side note, we did remark
that there was a lot of Massachusetts and our recent episodes,
and that was not intentional. It was just kind of coincidence.
So back to Linda's letter. Now another podcast taking place
(33:59):
in Maryssachusetts again East Hampton, which is just about twenty
miles from here. Amazing. Oh but wait, as I listened more,
I realized that you probably meant East Hampton, which I
believe is in Long Island, New York. However, this is
only a guess since the state where the East Hampton
or East Hampton was never mentioned. Perhaps in the future,
might you might want to state which state you are
(34:20):
referring to. After all, I can't be the only listener
who knows of more than one East Hampton. By the way,
keep up the good work. Love your podcast. So first,
thank you so much, Linda. Second, the reason we didn't
say what state it was in is because it's kind
of a confusing mess. It wasn't really in a state
right yet. And we mentioned at the end of that
podcast that it had fallen under the or had agreed
(34:43):
to become part of the jurisdiction of Connecticut. It is
indeed the East Hampton that is part of Long Island.
It had agreed to join up with Connecticut as part
of the that sort of dual legal thing that they
were doing where they were delivering goody garlic and kind
of working that deal. But of course that didn't pan out,
and now it's part of New York. Yeah, we talked
(35:04):
about it wasn't really part of any state yet, right,
We talked about the Connecticut part and in the episode.
But but yeah, at the time, it was not in
any state. And then when when Long Island became part
of New York, then East Hampton became part of New York. Also,
um I found that also be so confusing when we're
talking about but I probably should have clarified at some
point that it was in fact the one on Long Island,
(35:24):
So my apologies. Thank you, Linda, Thank you for sending
that to us. If you would like to email us,
you may do so at History Podcast at Discovery dot com.
We're also on Facebook dot com slash History class stuff
and on Twitter at missed in History. We have launched
a tumbler recently. It is missed in History dot tumbler
dot com, and we're on Pinterest. If you would like
(35:46):
to learn more about what we have talked about these
last two episodes, you can come to our website and
put the word marriage in the search bar. You will
find pretty quickly in the search results be truth through
the Centuries, a timeline of marriage which referee says the
Loving versus Virginia case. You can do all of that
and a lot more at our website, which is how
stuff Works dot com. For more on this and thousands
(36:10):
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Welcome to Stuff You Missed in History Class from how
Stuff Works dot Com. Hi, and welcome to the podcast.
I'm Tracy V. Wilson and I'm Holly Fry. Holly, can
I tell you a story? Please do. It's about what
(00:22):
we're going to talk about today. My other half Patrick,
his parents got married in New Orleans in the mid
nineteen sixties and they had to submit documentation of their
race in order to get a marriage license. That seems
so bizarre to me. Me too. He doesn't remember the details,
and unfortunately his parents have both passed away, so he
(00:44):
can't ask them. But in his memory, they each had
to prove that they weren't more than one eighth black
or in the language of the time, Negro. If either
one of them had been one race and the other not,
their marriage would have been a felony in Louisiana as
well as in many other states. Um So, this law
(01:04):
that we're talking about today are a series of laws,
the antim missagination laws that were in the South at
the time. They were affecting a lot of people of
every race. Even though the laws themselves were mostly focused
on marriages with one white person and one person of
another race. So in the discussion of Loving versus Virginia,
which we're going to talk about today, it often is
(01:26):
focused on the civil rights movement and what the ruling
meant to African Americans, which is absolutely the right way
to look at it, because antimissagination laws were horribly demeaning
to African American people. It was also a law that
applied to the rights of everyone of every race, so
it had a broad application apart from the fact that
(01:48):
antim missagination laws were really a product of slavery and
we're racist in their origin, and that is a thing
that the Supreme Court eventually ruled. And you are then,
no matter what your race, burdened with proving it just
to be with the person you want to spend your
life with, which is a bizarre hoop to have to
(02:10):
jump through. It is. I knew that that there were
antim assassination laws in effect and a lot of the
United States before Loving versus Virginia, I did not realize
that there were states that had sort of a proof
step before you could marry someone. Yeah, I mean there
have been the blood tests, and well, the bloods are
(02:31):
elements the proof of your racial heritage. Yeah, proof of
race was a new one. I would think that would
be in some cases hard to prove. That is one
of the things that came up before the Supreme Court.
So we're going to start back at the Lovings in
this part of this story. After getting the letter that
Mildred Loving sent to them in nineteen sixty three asking
(02:53):
them for help, the A. C. O. You referred the
Lovings to Bernard S. Cohen, who we quote it in
the first part of this podcast is saying that when
he told the Lovings that their case was probably going
to go to the Supreme Court, his jaw dropped. It
had been four years since the Lovings guilty verdict and
Virginia law required appeals to be filed within a hundred
(03:16):
and twenty days, so since their sentence had been suspended
as long as they stayed outside of Virginia for twenty
five years, Cohen determined that the case could be reopened
if they violated that court order. So they came home
for a visit and were arrested, and Cohen filed a
motion before Judge Bazil on November six, nineteen sixty three,
(03:37):
asking for the charges to be dismissed. He was arguing
that the law was unconstitutional. He cited that it violated
the equal protection claws of the Fourteenth Amendment and denied
the Lovings the fundamental right of marriage. Judge Basil did
not act on this motion, and months went by. Cohen
met during this time civil rights lawyer Philip J. Hirshkop.
(03:58):
Hirshkop and Cohen had both been students of zet and
To at Georgetown when they were studying law, so hirsch
Kop joined Cohen's firm and they worked together on the
Loving case for the next three years, and the two
attorneys together filed a motion in federal court in October
on they of October in nine four, asking a panel
(04:19):
of judges to address Judge Basil's refusal to act. The
judges directed Judge Basil to make a ruling or the
case would automatically be moved to federal court. They also
ruled that Mildred and Richard could return to Virginia together
while the case was in progress, So that was kind
of a big shift in what had already been established. Right.
They moved to a racially mixed neighborhood in King and
(04:41):
Queen County, Virginia. Their home life was pretty quiet. As
as we talked about in the first episode, it was
a region of Virginia that that did not get a
lot into each other's business racially. That that's sort of
how it was reported that that people kind of let
each other mind their own business. So their home life
(05:01):
is pretty quiet. But Cohen and hirsch Kop became the
targets of threats and harassment because of their representation of
the Lovings, and some of it was related to their
both being Jewish. So while the Lovings were having a
pretty quiet home life, all stuff was in the works,
their attorneys were really getting a lot of harassment. And
then finally on January twenty two nine, so several months
(05:25):
have gone by at that point, Judge Basil issued an
order denying Cohen's motion. In it, he stated, quote, Almighty
God created the races white, black, yellow, Malay, and red.
He placed them on separate continents. 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
(05:45):
did not intend for the races to mix. This quote
became infamous. It was cited repeatedly as an example of
of racism, Essentially, Cohen and hirsch Kop appealed, and they
asked for the case to be heard in federal a court. Instead,
it was heard in the Supreme Court of Appeals in Virginia,
which denied the loving's appeal in March of nineteen sixty six.
(06:08):
The next step, next step Supreme Court. Cohen and Hirschkop
filed a notice of appeal with the U. S. Supreme
Court on July nineteen sixty six. Melvin L. Wolf and
David Carliner, who were both prominent A c ou lawyers,
helped them prepare the statement and the brief that followed,
and since they were appealing a lower court's ruling, the
(06:29):
attorneys had to prove that a federal or constitutional issue
was at stake, So Cohen and Hurtchkop built an argument
that focused on their racial integrity statue as discriminatory, denying
the due process and equal protection guaranteed under the Fourteenth Amendment,
as well as other basic civil rights. Virginia's racial Integrity
Statute included ten sections, while Mildred and Richard had only
(06:53):
been charged with breaking two of them. Cohen and Hurtchkop's
twenty page statement referred to all ten sections of the
code and the hope that the Supreme Court would overturn
the whole thing. They justified this by saying that if
only those two parts were stricken down, then Mildred and
Richard would just be found guilty of one of the
other parts and stripped of their right to marry again.
(07:13):
They also cited the Supreme Court's ruling in Brown versus
Aboard of Education and McLaughlin versus Florida, which was school
integration and different treatment of race in adultery and lewd
cohabitation from our previous episode, so they cited those rulings
among others. Cohen and Hirshcock's statement also explained how the
law was disrupting the lovings lives. They couldn't live together
(07:37):
in their hometown and raised their children. Their children were
branded as illegitimate because their parents marriage wasn't valid. If
one of the Lovings died, the other wouldn't get Social
Security survivor benefits, and their children wouldn't automatically inherit their
property if their parents died. So basically, the Lovings are
being excluded from legal protections that are granted to other
(07:58):
families because of their ace. The Supreme Court's clerk asked
the Virginia Attorney General to respond, and on November eighteenth
of nineteen sixty six, the State of Virginia filed a
twenty three page reply and asked the Supreme Court not
to consider the case. The state's argument was that the
law didn't violate the Fourteenth Amendment and that the framers
(08:20):
of the amendment did not intend for it to keep
states from regulating marriage, and Virginia argued that numerous other
decisions by both state and federal courts had upheld antimesagination
statutes already. The State of Virginia also asked the court
not to consider any of the ten sections of their
antim Misagination Code other than the two under which the
(08:41):
Lovings were actually charged. The Supreme Court got all of
this information and on December twelfth, nineteen sixty six, and
announced that it would hear the case and that oral
arguments would take place on April tenth, nineteen sixty seven.
So now we're getting to the actual Supreme Court hearing. Yes. So.
Cohen and hurch Cop prepared for the Supreme Court case,
(09:02):
along with several other a cel You lawyers and civil
rights experts, and they conferred with psychologists and sociologists and
biologists who all specialized in interracial relationships and the well
being of children with parents of different races. So the
way that this works is that both parties submit a
brief to the Supreme Court. The Supreme Court has time
to review all of that before hearing oral arguments. So
(09:25):
Cohen and Hirsch Coop submitted a forty page brief to
the Supreme Court on February seventeenth of nineteen sixty seven,
and it outlines six key points and I'm just going
to read them as they are written down in a
book called Supreme Court Milestones, Loving versus Virginia by Susan
Dudley Gold. So their points were the entire ten sections
(09:47):
of Virginia's antimissagination code should be abolished based on their history.
Virginia's laws against interracial marriage where quote relics of slavery
and expressions of racism, laws against interracial mayor edge caused
quote immeasurable social harm. Despite the historical record, the Fourteenth
Amendment did not exempt state antimexgination laws from its requirements.
(10:10):
Virginia's laws against interracial marriage were racially discriminatory and denied
the loving's equal protection of the laws. And the laws
also violated the Fourteenth Amendments due process claws, and the
brief went into detail about each of these points, arguing
that the idea of racial purity quotes paralleled Hitler's hope
of creating a super race, and that the laws were
(10:32):
quote a present day incarnation of an ancient evil, and
they tied that into the concept of white slave owners
raping their slaves, that they set up a case system,
and that the laws were tied to an idea of
a pure race when there was really no proof that
any such thing existed. That comes up a lot in
the arguments the idea of whether there is a pure
(10:54):
race and why the focus on this pure race is
on the white race and not other races is Cohen
and Hirschkop also noted in a footnote that had Pocahonis
and John Rolf been living in Virginia at that present time,
they could not have married one another. The State of
Virginia submitted a fifty two page brief on March twenty,
(11:15):
nineteen sixty seven, which was prepared by the States legal
team Attorney General Robert Y. Button and Assistant Attorneys General
Kenneth C. Patty and R. D. Mcelwaine. Virginia's argument was
number one that the law was not unconstitutional and that
many other rulings had said so, that it was not
the court's role to overturn rulings based on sociological, biological,
(11:39):
and inthropological research, and that if the Court did, that
research would be contradictory. Virginia argued that the codes did
not violate the Fourteenth Amendment because it was not the
intent of the framers of the Fourteenth Amendment to include
anti missagination laws and its scope. The next twenty four pages,
so almost half of the document was about the legislative
(12:00):
history of the Fourteenth Amendment. There were five additional ammicky
Courier friend of the Court, not directly involved in the
proceedings but offering additional information briefs. UH four were in
the Loving's favor and one was in Virginia's favor. The
one in Virginia's favor was written by the state of
North Carolina. North Carolina had antim asssgnation laws that were
(12:23):
very like what was on the books in Virginia at
the time. The only one of these that was actually
permitted to argue before the court was the Japanese American
Citizens League. The other briefs in favor of the Lovings
were from the Inn Double A CP, the Legal Defense
and Education Fund in Double A CP, which filed separately,
and a coalition of Catholic bishops and other Catholic social organizations.
(12:47):
These briefs were largely focused on equal protection and due process.
The Catholic Organization's brief added to that that the antim
assassination laws violated the First Amendment by keeping people from
exercise in their religious freedoms, saying that marriage was quote
a fundamental act of religion. The oral arguments took place
on April tenth of nine seven, and you can actually
(13:10):
listen to the entire oral argument online, which Tracy has
been doing a lot of. I listened to the whole
oral argument and we will put a link to that
in our show notes if you would like to listen
to it. Also, um, we're going to talk about the
oral argument, both the part that was in the Loving's
favor and the part that was argued for Virginia. So
for the Lovings, Cohen and hirsch Kopp divided the time
that they were allowed to have, with hirsch Kopp arguing
(13:32):
the equal protection portion and Cohen presenting the due process
portion of their argument. Hirsch Kop was only about two
years into his career, and to argue before the Supreme Court,
a lawyer had to have been admitted to the highest
court in the state or territory or the district of
Columbia for three years. So Cohen had to move that
Hirshkoff be admitted pro Hockbeach, which is sort of a
(13:55):
just for this time, I would like this person to
be able to argue this case with me. So it's
a one time dispensation. Yes, yes, he got a one
time dispense dispensation. He's really early in his career at
this point. So Hitchcock went first with his points on
equal protection and on the race hysteria that had prompted
the Virginia codes in question and other codes similar to it.
(14:17):
He started right out of the gate with classifying the
racial Integrity Statute as a slavery law. He does not
pull any punches with that either. That's one of the
first sentences out of his mouth is that the Racial
Integrity Statute is a slavery law. He also pointed out
that a lot of the immigration and racial purity laws
that had come into play at about that time happened
when northern states were worried about the influx of Irish
(14:40):
and Italian immigrants, and western states were worried about Asian immigrants.
So these states that had worries about the immigration of
people that were coming into their their part of the country,
they built on post Civil war laws that we're governing race.
So as sort of a side note here, that there's
a whole a lot of talk about the South in
(15:01):
this case, because the antim assignation laws were all in
the South at that point, but there was racism and
a lot of the rest of the world that directly
fed into this whole argument. The idea of racial integrity
was really tied to the idea of white supremacy because
in almost all cases, the primary focus of antim assignation
(15:23):
laws was preventing white people for marrying people of other races,
So the focus was on keeping the white blood pure
and not that of other races. And he wrapped up
his argument with a reiteration, that's the laws in question. Again.
He was like slavery. He circled right back to that
slavery law. But that's kind of how he booke ended
(15:44):
his whole presentation. Cohen followed, and his argument was about
due process. There was more back and forth between Cohen
and the Supreme Court justices than with hirsh cop. He
argued that the equal protection argument was pretty strong, but
he was there was worry that if the Court only
found a violation of the equal protection clause, that Virginia
(16:07):
could pass other discriminatory laws, that they would be okay
because they were quote equal. So they would just equalize
by passing more restrictive laws. They would equalize the law
by saying that white people could only marry white people,
and African Americans could only marry African Americans, and the
Asians could only marry Asians, and that that would be equal. Uh.
(16:27):
So they were building a due process argument to try
to counteract that possibility. Cohen also passed on Richard Loving's
famously quoted line to the court as an example that
even a layperson has a fundamental understanding of what's fair,
and he tied that into the idea of due process.
And that quote from Richard Loving was tell the court,
(16:49):
I love my wife and it is just unfair that
I can't live with her. In Virginia, Justice Potter Stewart
questioned Cohen about how this due process argument might apply to,
for example, first cousins or siblings marrying, and Cohen responded
that states could still make marriage laws based on reasonable reasons,
but that making them based on race was in fact
(17:10):
not reasonable. He argued that the fourteenth Amendment was an
amendment written as protection against racial discrimination. In that light,
it applied very clearly and strongly to the loving case.
Cohen called race quote just not acceptable grounds, but an
arbitrary and capricious ground for denying marriage. They spent a
great deal of time discussing the idea of cousins marrying
(17:32):
in the actual case. Yeah, when you were hearing when
you listen to the oral argument, there's a fair amount
of questioning about whether this precedent would apply to other
things that are regarded as not okay, like the age
or how closely people are related, uh, that sort of thing.
And so there's a pretty good amount of back and
(17:53):
forth between the justices and Cohen when talking about that
part of it. Um Cohen also poked a whole in
the state's argument that there had been debate about antimsagenation
laws in the context of the passage of the Fourteenth Amendment.
He noted that all of that debate really happened in
the context of the Civil Rights Act of eighteen sixty six,
(18:14):
not the Fourteenth Amendment. He called the racial integrity statutes
in Virginia quote odious to the Fourteenth Amendment. Cohen also
posed the question of exactly what danger would there be
to Virginia, to the people of Virginia that these laws
were trying to prevent, Like, what will it harm anyone
else if we allowed couples like this to marry? Right.
(18:36):
That came up when Virginia was making its argument, which
we'll talk about and in a moment. First there was
the the one other person who was allowed to make
an argument for the lovings in this in the oral arguments.
That was William Martani, who was the attorney for the
Japanese American Citizens League, and he got fifteen minutes to
(18:57):
speak to the Supreme Court. He made a personal appeal
as a niece, which is a person, an American person
born of Japanese parents, and his point of view was
that that made him one of the very few people
in the courtroom, apart from the other nissa who were watching,
who could definitively say what their race was, all the
(19:17):
way back in the melting pot of America, he said,
it would be just about impossible to prove that you
had quote no trace whatever of any blood other than Caucasian,
which is what the Virginia law required. He also noted
that anthropologists really reject the idea of quote, a pure race,
(19:37):
but that with scholars saying there's no such thing as
a pure race, the state of Virginia would have lay
people assigning race to people using their physical features, which
have quote no legislative purpose. Maritani also repeated the argument
that the Virginia law was clearly about white supremacy, since
the laws only governed the purity of white people's blood,
(19:59):
and we're not concerned with anyone else's racial purity. He
also kind of nods to the reluctance that we talked
about before that the court had seemed to show in
getting into race relations, because Maratoni noted that striking down
antim assagnation laws wasn't going to make anyone do anything
they didn't want to do. That wasn't gonna make people
(20:20):
have to go marry some one of another race if
they didn't want to, the way it had made schools
integrate when people didn't want to. So instead, what was
going to happen if they struck down antimissagnation laws was
to restore the freedom of choice to everyone, including people
who didn't actually agree with in our marriage between the races.
(20:40):
And that concluded the arguments in favor of the Lovings.
And then for the Commonwealth of Virginia, Assistant Attorney General R. D.
Mc owing the third presented the state's case, and he
stressed again that the States wish that the court focus
just on the two parts of the statute that Richard
and Mildred had been found guilty of breaking. Chief Justice
(21:02):
Earl Lawren started questioning him pretty early in his presentation,
and he asked about the provision in Virginia law that
a white person could marry a quote North American Indian
if that person had less than one sixteenth Indian blood.
Mcawaine said that was a special provision and that he
himself could see some constitutional problems with it, but he
(21:25):
claimed that the reason that the law in Virginia was
focused on white people marrying black people was because seventy
percent of the Virginia population was white and was black,
leaving the remaining one percent kind of not really worth
worrying about in terms of racial purity. That was almost
his exact warreds he he he was like, well, you've
(21:46):
got seventy nine percent who were white and twenty percent
who were black, and the remaining one percent not a
really a lot to worry about. Not Jermaine to their thinking. Uh,
he argued that the law was equal because black people
couldn't marry white people and white people couldn't very black people.
So he just kind of inverted it and said, see,
that's equal rights, the same for both sides. The court
then asked him whether an interracial couple who had lived
(22:09):
somewhere else and gotten married and then moved to Virginia
would be breaking a law. So if you lived in
Virginia and then you moved somewhere else to get or
went somewhere else to get married and then came back
to Virginia to skirt the law, that was illegal, and
his argument was that no, it would not be illegal.
But then there was some discussion about whether states needed
to recognize marriages that were valid in other states, but
(22:33):
not valid in that particular state. And they went back
and forth about that for a while, and then mclwaine
went on to make two main arguments. First, he reviewed
the history of the fourteenth Amendment and its passage at length,
saying that that the debates leading to its passage showed
it was not intended to prevent anti missgenation laws. And
then he went on to argue that even if the
(22:55):
Amendment was intended to prevent those laws, Virginia's intent was
to prevent quote the sociological and psychological evils which attend
interracial marriages, basically arguing that those laws were right and reasonable.
So Chief Justice Earl Warren asked him a lot of
pointed questions about the state's position that antim assassination laws
(23:15):
had been discussed in the debate around the fourteenth Amendment. Remember,
the legal team for the Lovings had already alleged that
that was not the case, and mcowain explained that it really.
He eventually, after some hedging, brought up that it was
the Freedman's Bureau Bill and the Civil Rights Act of
eighteen sixty six. But he argued that that the language
(23:38):
from those two things had made it in whole cloth
into the fourteenth Amendment, meaning that people didn't discuss them
in the Fourteenth Amendment discussions because they had been already
discussed and decided on elsewhere, so why continue to talk
about it? And he reiterated the state's rights argument and
the argument that states needed to be able to do
what was right in their own particular population and saying, quote,
(24:01):
there is a rational classification setting so far as the
Virginia population is concerned for preventing marriages between white and
colored people, who make up almost the entirety of the
state population, and that this is supported by the prevailing
climate of scientific opinion. He tied the interracial marriage conversation
to bigamy and incest and said that families that were
(24:22):
intermarried had excessive hardships from society. And he got into
pretty lengthy conversation with some of the justices, particularly Chief
Justice Warren and Justice Hugo. Black, about the research that
was tied to race and marriage. Essentially, mcawaen kept appearing
to cite studies that were biased while ignoring the studies
(24:45):
that that ran contrary to the position that he was making.
Chief Justice Warren was not tolerant of that, Chief Justice
Warren kept pointing out things that contradicted the evidence that
mclwaine was presented ing, and eventually Justice Hugo. Black said
to him, Matta, ask you this question, aside from all
(25:06):
questions from the genetics, psychology, psychiatry, sociology, and everything else,
aside from all of them, forgetting it for the moment,
is there any doubt in your mind that the object
of this statute, the basic promise on which they rest,
is that white people are the superiors of the colored
people and should not be permitted to marry. So mcawain
(25:30):
tried to get out of answering this question, and then, finally,
after some various sort of angled attempts at answering it,
acknowledge that, yes, when those laws were set down, they
were definitely racist when they were past, but he tried
to argue that they were still justifiable as he was
arguing them before the Supreme Court, and the justices also
(25:54):
asked how he thought they should rule in light of
Brown versus Board of Education, and mcawayne's stated that education
was a fundamental right, just as John M. Harland then
asked whether marriage was also an equally important right, and
mc Owen said that marriage was not equal. Children are
required to go to school, but no one is required
to marry. After mcawaan's time was up, Cohen only had
(26:17):
a few minutes for his rebuttal, and I'm sort of
extrapolating based on what he says. He did not really
talk a lot about the specific arguments that the state
had made. I think that people were pretty confident that
the state had not made a good case. So what
he spent most of that time talking about was the
necessity that the court beside on all ten sections of
(26:39):
the Code, and not just the two that the Lovings
had been charged with breaking. Um. He reiterated the rights
that Richard and Mildred had to their home and their
family and their children, and and tried to make a
strong case that if they only struck down two parts
of the Code, that their rights would be disrupted by
(27:00):
the rest of the code, and that concluded the oral arguments,
as happens in Supreme Court cases. Then there was a
long time before the Court issued an opinion, and on
June twelfth, nineteen sixty seven, Chief Justice Earl Warren delivered
the Court's opinion. It unanimously decided to overturn Virginia's entire
(27:22):
code of racial purity laws, and he cited that using
race to restrict the freedom to marry violated the equal
protection clause and that the lovings had been denied due process. So,
from the opinion, a quote is quote, there can be
no question but that Virginia's misaggenation statutes rest solely upon
distinctions drawn according to race. The statutes prescribed generally accepted
(27:46):
conduct if engaged in by members of different races. Over
the years, this Court has consistently repudiated distinctions between citizens
solely because of their ancestry as being odious who free
people whose institutions are founded upon the doctrine of equality.
The court also noted that because the law only dealt
(28:07):
with white people marrying other people of other races, it
was clearly meant meant to quote maintain white supremacy. And
also from that opinion, another great quote is that marriage
is one of the basic civil rights of man, fundamental
to our very existence and survival. Justice Stewart also noted
in a separate opinion that a state law cannot make
(28:28):
an act a crime because of the race of the
person doing it, So you can't take a generally legal
activity and make it illegal because of the race of
the person. Um. This decision avoided all of the antim
assasination laws in all sixteen states that were still banning
interracial marriages at the time. So huge change, giant change
(28:52):
in uh the legal status of marriage in many many places.
So the Warren Court was pretty sweeping in a lot
of ways, and this is an example of that. Um
So what happened next holly well. Even though the courts
ruling voided the antime assagenation laws, a lot of those
laws remained on the books and several states for some time.
So Virginia repealed them in nineteen sixty eight, but still
(29:14):
had definitions of different races on the books until nineteen
seventy five. Florida, Oklahoma, Missouri, Texas, and West Virginia had
repealed their laws by nineteen sixty nine. Tennessee citizens voted
to repeal that state's laws in nineteen seventy eight. Mississippi
had a ban on interracial marriage in its state constitution
until nineteen eighty seven. South Carolina had a section in
(29:38):
its constitution barring marriages between white people and anyone with
more than one eighth African blood until Alabama was the
last state to repeal it's antime assagenation laws, and that
was in two thousand after a popular vote. Sixty had
voted in favor of repeal. So you'll still see sometimes
stories come up in the news of people who are
(30:00):
denied marriage because of their race. But at this point,
if someone does that, it is illegal, and we can
talk about the Lovings. What happened to them. So they
moved back to Central Point, to their hometown where they
always wanted to be and always wanted to raise their children,
and they kind of layed low after that. They stayed
out of the spotlight. They didn't like become I think
if this had all happened today, it would be very
(30:20):
different because they would probably be hounded by reporters and
reality TV producers right if nothing else. They would probably
have been in today's time, really pressured to to become
sort of evangelists for the civil rights movement. But they
really they they politely declined the media spotlight after they
moved back. Sadly, they were in a car accident in
(30:43):
ninety five in which they were hit by a drunk
driver and Richard was killed and Mildred lost the sight
in one eye. UM. She later died in pneumonia in
May of two thousand and eight. UM there was a
nine TV movie made about their story called Mr. And
Mrs Loving, and then there was another on HBO, a
(31:05):
documentary called The Loving Story, and that premiered just last
year on Allen Hine's Day, so Valentine's Day of uh.
And it will actually be out on DVD shortly. I
really wanted to watch it before doing this episode, but
it it was not available to me by any legal means,
so you will have to wait until June twelve is
the anniversary of the Supreme Court's ruling and it is
(31:27):
unofficially celebrated as Loving Day. And also Mildred who really
she She didn't give a lot of interviews. She she
pretty much kept to herself after especially after her husband's death.
She gave a statement about the freedom to Mary in
two thousand seven, so about a year before her death
and her statement here's here's an excerpt of it. Surrounded
(31:50):
as I am now by wonderful children and grandchildren, not
a day goes by that I don't think of Richard
and our love all right to Mary, and how much
it meant to me to have that freedom to marry
the person precious to me, even if others thought that
he was the wrong kind of person for me to marry.
I believe all Americans, no matter their race, no matter
(32:10):
their sex, no matter their sexual orientation, should have the
same freedom to marry. Government has no business imposing some
people's religious beliefs over others, especially if it denies people's
civil rights. 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,
(32:32):
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. I love her. That
is my one personal side that is not based on
(32:55):
any documented research. I think that's lovely. It is. It's
quite a like see for someone to leave. Yeah, and
um that that's why this case has been cited pretty
often in in the Defense of Marriage Act in proposition
eight cases that are before the Supreme Court as we
record this um. The Loving versus of Virginia case has
(33:16):
been cited a lot, But I don't know that many
people really know the whole story of that, so I
hope people have enjoyed learning about it in this episode.
And do you also have listener mail? I do. This
listener mail is from Linda. Linda says, I just finished
listening to your trial of Goody Garlic podcast. I couldn't
believe it when you stated that this incident took place
(33:37):
in East Hampton. I had recently listened to your podcast
on Johnny Applefeed and was surprised to learn that he
grew up in Long Meadow, Massachusetts, where I have lived
for the past ten years. Side note, we did remark
that there was a lot of Massachusetts and our recent episodes,
and that was not intentional. It was just kind of coincidence.
So back to Linda's letter. Now another podcast taking place
(33:59):
in Maryssachusetts again East Hampton, which is just about twenty
miles from here. Amazing. Oh but wait, as I listened more,
I realized that you probably meant East Hampton, which I
believe is in Long Island, New York. However, this is
only a guess since the state where the East Hampton
or East Hampton was never mentioned. Perhaps in the future,
might you might want to state which state you are
(34:20):
referring to. After all, I can't be the only listener
who knows of more than one East Hampton. By the way,
keep up the good work. Love your podcast. So first,
thank you so much, Linda. Second, the reason we didn't
say what state it was in is because it's kind
of a confusing mess. It wasn't really in a state
right yet. And we mentioned at the end of that
podcast that it had fallen under the or had agreed
(34:43):
to become part of the jurisdiction of Connecticut. It is
indeed the East Hampton that is part of Long Island.
It had agreed to join up with Connecticut as part
of the that sort of dual legal thing that they
were doing where they were delivering goody garlic and kind
of working that deal. But of course that didn't pan out,
and now it's part of New York. Yeah, we talked
(35:04):
about it wasn't really part of any state yet, right,
We talked about the Connecticut part and in the episode.
But but yeah, at the time, it was not in
any state. And then when when Long Island became part
of New York, then East Hampton became part of New York. Also,
um I found that also be so confusing when we're
talking about but I probably should have clarified at some
point that it was in fact the one on Long Island,
(35:24):
So my apologies. Thank you, Linda, Thank you for sending
that to us. If you would like to email us,
you may do so at History Podcast at Discovery dot com.
We're also on Facebook dot com slash History class stuff
and on Twitter at missed in History. We have launched
a tumbler recently. It is missed in History dot tumbler
dot com, and we're on Pinterest. If you would like
(35:46):
to learn more about what we have talked about these
last two episodes, you can come to our website and
put the word marriage in the search bar. You will
find pretty quickly in the search results be truth through
the Centuries, a timeline of marriage which referee says the
Loving versus Virginia case. You can do all of that
and a lot more at our website, which is how
stuff Works dot com. For more on this and thousands
(36:10):
of other topics, visit how stuff Works dot com. Netflix
streams TV shows and movies directly to your home, saving
(36:33):
you time, money, and hassle. As a Netflix member, you
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