Loving v Virginia
Mildred and Richard Loving
1967
• The story unfolds in the context of the
beginning of the Vietnam War, counter culture
of the 1960s and the Civil Rights struggle
which resulted in large shifts in American
society.
Back ground
• Richard Loving, white
and Mildred Jeter,
African American and
Rappahannock Native
American grew up
together in Caroline
County, Virginia.
• They fell in love and
went to Washington, DC
where interracial
marriage was legal and
married in June of 1958.
• Then they returned to
Virginia.
Caroline County, VA
July 1958 late at night…
• Sheriff Brooks and two officers came into their
bedroom located in the home of Mildred’s
parents to arrest them.
• “I woke up and these guys were standing
around the bed. I sat up. It was dark. They had
flashlights. They told us to get up, get dressed.
I couldn’t believe they were taking us to jail.”
Mildred Loving
The couple were not of the same race,
therefore they had violated the law.
• Richard was held for one night.
• Mildred was kept for several days.
Encountering a series of laws against
black-white marriages in Virginia.
• 1878 law defined black as ¼
• 1878 moving out of Virginia to marry and then
immediately returning to the state and
claiming to be married
• 1910 1/16
• 1924 “one drop” rule
• 1958 At this time anti-miscegenation laws
were being repealed by some states, but not
in Virginia.
Sentencing
• January 1959 Mildred and Richard plead guilty
and were sentenced to one year in jail.
• They received a suspended sentence if they
would
– Leave Caroline County and Virginia
– Not return together for 25 years together
– After 25 years they would still face prosecution if
they returned
Back and forth
• The Lovings moved back to Washington, DC.
• Mildred returned to Caroline County to give birth to
their three children.
• “I wanted to come home. My family was here and my
husband’s family was here. Moreover, she said, I
hated to live in he city.”
• In 1963 Mildred wrote to Robert Kennedy, Attorney
General. “I told of our situation and asked if there
was any way he could help us.”
• Robert Kennedy suggested the ACLU.
Return to Court
• American Civil Liberties Union, ACLU lawyer
Bernard Cohen took the case, later joined by
Philip Hirschop.
• November 1963 a motion was filed to set
aside the judgment.
• January 1965 Judge Bazile presided at the
hearing to have his previous judgment set
aside.
Judge Bazile
• The Loving marriage was void in Virginia.
• If they stayed that would face repeated
prosecutions.
• Quoting a Virginia High Court case Naim V
Naim marriage was “a subject which belongs
to the exclusive control of the States”
Judge Bazile
• In conclusion the judge wrote:
Almighty God created the races white, black,
yellow, malay and red, and he placed them on
separate continents. And but for the interference
with his arrangement there would be no cause
for such marriages. The fact that he separated
the races shows that he did not intend for the
races to mix.
Virginia Supreme Court
• March 7, 1966 a unanimous court declared,
“We find no sound judicial reason … to depart
from our holding in the Naim case…”
• The law against interracial marriage was as
sound as it was in the 1880s.
The Supreme Court decides to hear
the case
“the miscegenation issue… discrimination based
on race must be examined carefully…” according
to a Supreme Court clerk.
December 1966 the court agreed to hear the
case.
• “The Loving's have the right to go to sleep at
night knowing that if should they not wake in
the morning, their children would have the right
to inherit from them. They have the right to be
secure in knowing that, if they go to sleep and
do not wake in the morning, that one of them, a
survivor of them, has the right to Social Security
benefits. All of these are denied to them, and
they will not be denied to them if the whole
anti-miscegenistic scheme of Virginia... [is] found
unconstitutional.“ Bernard Cohen, ACLU
attorney.
Two sides
Loving
• 14th Amendment equal
protection and justification
• Privacy issues
• Right to happiness, the right
to marry
Virginia
• 10th Amendment, not the
14th should govern marriage
• Question the reach of the
14th Amendment
punishment was equal
• The need for racial purity
• Federal case upholding bans
on interracial marriage
• Racial purity argument
The Decision –June 1967
Chief Justice Earl Warren
• The Supreme Court rejected each of the
state’s arguments.
• “…the Tenth Amendment had to yield to the
Fourteenth when it came to the claim of
“exclusive control” over the “regulation of
marriage.”
• Miscegenation statutes of Virginia could no
longer satisfy the standard of constitutionality.
Free Now
• The Supreme Court ruled unanimously that
race could not be a factor in determining
marriage laws.
DOMA
Defense of Marriage Act
May 1996 DOMA started its way
through Congress in 1996 there was no state
approved same-sex marriage.
In September 1996 President Bill Clinton
signed DOMA into law. Votes indicated that
it would have become law even if he had
vetoed it.
In support of DOMA
• DOMA validates states’ rights to define
marriage for their own state purposes
• DOMA validates traditional recognition of
marriage between one man and one woman
for federal purposes
1996 Clinton and DOMA
• Clinton stated that the Act confirmed the right of
states to determine the issues of same-sex
marriage for their own state.
• The Act clarified the terms “marriage” and
“spouse” for federal purposes.
• Clinton stated that he opposed same-sex
marriage, but discrimination, violence or
intimidation violated equal protection under the
law.
Federal Purposes
• There are over 1,000 federal statutes and
programs tied to marriage.
• The tax code dominates the use of the word
marriage.
• The definition of marriage matters for purposes
of social security
• Health care decisions, death benefits, adoption
and child custody are all affected by the term
marriage.
DOMA in 2011
• President Obama and Attorney General Eric
Holder announced that we could no longer
defend DOMA in certain court cases, but at
the same time they would continue to enforce
the law.
• Speaker John Boehner, on behalf of the US
House of Representatives, hired outside
lawyers to defend DOMA. Part of Justice
department appropriations are for this
purpose.
Supreme Court
March 27, 2013
The U.S. Supreme Court will begin hearing two cases.
Edith Windsor legally married in Canada in 2007 to her same-sex
partner, Thea Spyer. Ms. Spyer passed away leaving her estate to
Ms. Windsor. Both were residents of New York state, which at
the time of Ms. Spyer’s death, recognized same-sex marriage
Ms. Windsor then owed almost $400,000 in federal estate taxes,
which she would not have had to pay had federal law recognized
her marriage.
Ms. Windsor argued in court that Section 3 of DOMA was
unconstitutional .
The Second Circuit court agreed.
Supreme Court
March 27, 2013
• The second case to be ruled on will determine in California’s
Proposition 8 which changes the state constitution is in
alignment with the U.S. Constitution.
• The federal Government says that California couples have the
same rights through civil unions, but it doesn’t allow couples
to get married. Because same-sex couples are being treated
differently they are not being treated equally as required by
the Constitution.
Sources
• Amy Howe, Court to consider same-sex marriage cases: In Plain English,
SCOTUS BLOG (Nov. 29, 2012, 8:39 PM),
http://www.scotusblog.com/2012/11/court-to-consider-same-sexmarriage-cases-in-plain-english/
• Amy Howe, In Proposition 8 case, the federal government weighs in: In
Plain English, SCOTUS BLOG (Feb. 28, 2013, 6:26 PM),
http://www.scotusblog.com/2013/02/in-proposition-8-case-the-federalgovernment-weighs-in-in-plain-english/
• It’s time to overturn DOMA By Bill Clinton, March 07, 2013, Washington
Post
• http://www.huffingtonpost.com/news/republicans-doma
• http://www.nytimes.com/2012/12/08/us/supreme-court-agrees-to-heartwo-cases-on-gay-marriage.html?_r=0
Sources
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388 U.S. 1 APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA
Syllabus
Tell the Court I Love My Wife . Peter Wallenstein. Palgrave.2002.New
York.
From Jim Crow to Civil Rights. Klarman Michael. Oxford University
Press.2004.New York. Definition of miscegenation found at
www.dictionary.com
Pascoe, P. (2009). What comes naturally: Miscegenation and the making of
race in America. New York: Oxford University Press.
Multiple documents found at www.loc.gov individual sources found on
slides.