Loving vs. the Commonwealth of Virginia - what happened, where are we now?

Monday, June 14, 2021

As we passed Loving Day commemorating the Loving family's Supreme Court victory that nullified anti-miscegenation laws in the US, I wanted to get a deeper understanding of the history behind interracial marriage laws. Like every other US race-related historical event I have taken a deep dive into, this one seriously disappointed in terms of how much I didn't know and just how deeply f*cked up this all is. I think the easiest way to break this down is via a timeline which I outlined below. Buckle in. 

First let's talk about America's general attitude around interracial marriage and how we got to Loving.

1614: The first interracial marriage in the US takes place between John Rolfe and Pocahontas. Leaders encourage intermarrying between Native Americans and the English colonizers in an attempt to "become one", and go as far as to offer tax breaks and cash incentives to white/Native American unions. They are met with some resistance from European colonizers.

1619: The introduction of enslaved people from Africa causes colonizers to double down on views against interracial marriage due to:

  • The colonizers' strongly held belief that Africans are inferior to English
  • Fear that Native Americans and Black slaves would intermarry and create a force against whites.
1661: Virginia leads the way, enacting a law that prohibits interracial marriages, ministers from marrying interracial couples, and imposes severe fines and indentured servitude for any woman and child if a white woman has a mixed race child.
  • Yes this is extremely hypocritical considering that we know many enslaved women birthed mixed children as a result of rapes carried out by white slave owners. It's hard to find data on this since enslaved people were not allowed to read/write, but I did find a stat that said between 1850 - 1860 the "mulatto" slave population increased 67%, while the Black slave population increased by 20%.
  • Rules like this one spurred the "one drop rule" which is a post for another day.
1865 - on: The end of slavery, the Great Migration, and an influx of immigrants heightens racist discourse, orgs like the KKK come into power, Jim Crow starts, hate prevails. We also know from the #30DayEducationChallenge that this was an incredibly violent time where white people did everything possible to hold Black people back.

1883: Pace v. Alabama. U.S. Supreme Court rules that an Alabama anti-miscegenation law is constitutional because it punished Black people and white people equally. 

1888: Supreme Court rules that states have the authority to regulate marriage.

1924: Virginia tightens up their rules around interracial marriage passing the Act to Preserve Racial Integrity that prohibits whites from marrying anyone with "a single drop of Negro blood" and defining white as "someone with only caucasian blood". At this time, 38 other states have laws prohibiting interracial marriage.

1948: Perez v. Sharp. California Supreme Court rules that CA anti-miscegenation laws violate the 14th Amendment. This is the first time since Reconstruction that a state court declared such laws unconstitutional, and makes CA the first state since Ohio in 1887 to overturn its anti-miscegenation law. This leads to the repeal or overturn of similar laws in 14 states by 1967.

1950s: By this point 24 states still have miscenegation laws in place. Most states have extended legislation to prohibit unions between whites and Mongolians, Malayans, Mulattos, and Native Americans.

1954: Brown v. Board of Education integrates schools. 

1965: McLaughlin vs. Florida. The Supreme Court rules invalid Florida's criminal statute that requires more severe penalties for cohabitation and adultery by interracial couples than same race couples. Justice Potter Stewart states:
"It is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor".

Loving vs. the Commonwealth of Virginia

1958: Richard Loving and Mildred Jeter, childhood sweethearts in Virginia, discover Mildred is pregnant. Mildred is Black and Native Indian, Perry is white, and interracial marriage is illegal in Virginia so the two travel to Washington, D.C. to get married. 

Five weeks later, police officers raid the Lovings' VA home at 2 a.m. in an attempt to find them in bed together (aka to find proof of them violating the law). They inform the Lovings that their marriage certificate is not valid in VA and take the Lovings to jail. Perry is released after a day, a pregnant Mildred is held for a few days. They are charged with unlawful cohabitation and given the option to spend a year in jail or leave Virginia and not return for 25 years. Judge Leon Bazile states:
"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."

*using religion to justify upholding white supremacy - sounds familiar!*

The Lovings move to D.C. 

1963: The Lovings travel home to VA to visit family and are arrested for traveling together. Mildred writes to the U.S. Attorney General, Robert F. Kennedy, asking for help. He refers her to the ACLU who agrees to take the Lovings' case. ACLU lawyers  Bernard Cohen and Philip Hirschkop file a motion asking Judge Bazile to vacate the Lovings' sentences, he refuses. 

Cohen and Hirschkop take the case to the Virginia Supreme Court of Appeals, which also upholds the original ruling.

1967: Following another appeal, the case makes its way to the U.S. Supreme Court. The sides look like this:

  • VA's Assistant Attorney General Robert McIlwaine III defends the constitutionality of VA's anit-miscegenation law comparing it to regulations against incest and polygamy. 
  • Cohen and Hirschkop argue VA's statute is illegal under the 14th Amendment which guarantees all citizens due process and equal protection under the law
On June 12, 1967 the Supreme Court announces their ruling. In a unanimous decision the justices find VA's interracial marriage law violates the 14th Amendment to the constitution. This overturns the Lovings' criminal conviction and renders all the remaining anti-miscegenation laws in the country null and void. Chief Justice Earl Warren wrote the Court’s decision: 
“Under our Constitution, the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed upon by the State.” 

Where are we now on this? 

1994: Rumors that white and Black students planned to attend prom together leads Alabama principal to threaten cancelling the prom. After parent protests, a class boycott, and KKK involvement the principal allowed prom to continue and was promoted to a central office role.

1996: A Georgia Baptist church elects to disenter the body of a mixed race infant who was buried in the church's all-white cemetery and refused to marry the baby's parents - a white woman and a Black man.

1998: South Carolina becomes the second to last state to lift ban on interracial marriage, with 36% of South Carolinians voting to uphold the ban. Note - since Loving v. Commonwealth of Virginia this law was not punishable.

2000: Alabama is the last state to overturn ban on interracial marriage with 40% of Alabamians voting to uphold the law.

2004: Alabama voters reject a measure to overturn a constitutional amendment to erase segregation-era wording requiring separate schools for "white and colored children" and to eliminate references to the poll taxes once imposed to disenfranchise blacks.

2014: Students at a Rochelle, GA high school organize the town's first integrated prom.

2019: Mississippi wedding venue refuses to serve interracial couples on the basis of religious beliefs which is protected under state law.

2021: Seven states still required couples to declare their racial background when applying for a marriage license, without which they cannot marry. The states are Connecticut, Delaware, Kentucky, Louisiana, Minnesota (since 1977),[36] New Hampshire, and Alabama.


Loving v. VA History

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