Loving v. Virginia, 388 U.S. 1 (1967) was the case in which the Court held that the Virginia anti-miscegenation laws violated the Due Process Clause of the Fourteenth Amendment. After assessing the case facts with “strict scrutiny”, the Court also held the laws violated the Equal Protection Clause of the Fourteenth Amendment. On July 11, 1958, Mildred and Richard Loving were apprehended in their homes in violation of Section 20-58 and 59, which were the anti-miscegenation laws that prohibited leaving the state to interracially marry and returning to the forum state as well as labeling this activity a felony. Mildred, a woman of color, and Richard, a Caucasian, both plead guilty, received one year in prison, but had their sentences mitigated on the condition that they not return to Virginia together for 25 years. Unaccepting of this cruel reprimand, the Lovings’ sought legal relief, an endeavor that lead their fate to be overturned by the SCOTUS. Relying on the federal and state obligations to honor each citizen their due process rights and equal protection under the 14th and 5th amendments and guiding public policy to recognize the sanctity of protecting the private life, the SCOTUS unanimously ruled the anti-miscegenation laws unconstitutional, a monumental decision that restored another political and social right for minorities (specifically blacks).
Facts of the case:
Upon pregnancy at eighteen, Mildred Delores Loving (a Cherokee, African American) and (soon to be husband) Richard Perry Loving (a Caucasian) left from Virginia to Washington D.C. to marry (on June 2, 1958) without breaking the Racial Integrity Act of 1924 (Lombardo) in Virginia; subsequently, the Lovings returned to their home in Central Pointe, Virginia and, while sleeping, were apprehended on July 11, 1958 by police aided by an anonymous tip. The Lovings were charged under Section 20-58 of Virginia code, which prohibited leaving to interracially marry and returning to the forum state, and Section 20-59 of Virginia Code, which labeled this activity a felony. After pleading guilty, the Loving’s were sentenced to one year in prison, but had their sentences suspended upon the condition they not return together to Virginia for 25 years. Although legal counseling described their punishments as lucky, the Lovings sought legal relief with help from the ACLU among others.
The Loving Decision in 3 contexts: Post WWII, from Colonial Miscegenation, Civil Rights Movement:
Almost two decades after the end of World War II (1945), the Loving decision is reflective of blacks’ involvement in the War. Specifically, the integration awakened a recognition of deserved rights and the according desire for political, social, and economic transformation in favor of black populations. Consequences from the war include the realignment of poor whites to blacks; the intermittent Great Migration (1910-70) spiked and sent many blacks to the North for war- related jobs, seemingly competing with white men and undoubtedly causing tension. Although brief positive sentiments from interracial marriages lived after the war, illustrated by notable theatre works like “Color Blind” by Margaret Halsey, the deep obsession with racial purity and fight against integration across multiple contexts (the war zone and job market) evoked segregationists’ fears of racial mixing and, thus, their degradation. It was this sentiment expressed by segregationist and fought by blacks that set the stage for how taboo, but aweing interracial marriages were. Post-war, the persistent, structural racial inequalities blacks faced from the residuum of Jim Crow Laws and elevated insecurities from failed freedom demonstrations more than compelled blacks to fight for interracial cooperation and marriage; the brief stint of interracial marriages during the war set the tone for its importance to blacks’ legal recognition. From postwar to the 1960s, blacks were determined to accomplish the true fulfillment of brotherhood and to reject interracial marriages as simply deviant acts of social and economic radicals. Per the Loving decision, the victory cemented the legal equality deserved to blacks, unconditionally allowing them due process under the 14th and 5th amendments; this protection was influenced heavily by postwar controversy.
As residuum of the Black Codes established in the Reconstructive Era of 1865, anti-miscegenation laws illustrated the emphasis on the “one drop rule” to monitor and ensure continued white supremacy. Specific to Virginia, the force behind such laws originated from colonial efforts to prevent “abominable mixture and spurious issue” produced by the union of whites and nonwhites and, in earlier conception, extended to Asian and American Indians. Enforced until the Loving decision, these laws undoubtedly communicated the subordination of non-white (mainly black) populations. The exceedingly primordial notions of bestiality of black men, hypersexuality in black women, and overall disapproval of race mixing were, in 1967, manifested heavily in the low number of interracial marriages: 51,000.
The Loving decision brought into questioned the constitutionality of enforceable segregation laws. As the pinnacle of Black Civil Rights cases increasing blacks’ political protection in cases including 1938’s Missouri ex el Gaines v. Canada, 1954’s Brown v Board of Education, and 1964’s McLaughlin v. Florida, all of which, respectively, ruled unconstitutional 1) the out- of- state placing for ‘separate but equal’s’ implementation, 2) the ‘separate but equal’ doctrine upheld in Plessy v. Ferguson, and 3) the cohabitation laws stemming from anti-miscegenation laws, Loving v. Virginia heralded the Civil Rights Era’s efforts to ascertain that blacks (humans) are equal.
On October 1958, the Lovings’ were indicted by a Grand jury in the Caroline County Circuit Court in violation of Sections 20-58 and 20-59. On January 6, 1959, the Lovings’ plead guilty and were sentenced to one year in prison, but had their sentences suspended on the condition they not return to Virginia together within 25 years; here, Justice Leon M. Bazile upheld their convictions saying, “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 marriage. The fact that he separated the races shows that he did not intend for the races to mix.” On November 6, 1963, the Lovings’ filed a motion to vacate the judgment of Caroline County because the conviction violated the 14th Amendment Due Process Clause. On October 28, 1964, the Lovings’ joined with ACLU Attorneys Bernard S. Cohen and Philip J. Hirschkop and filed a class action lawsuit, after waiting almost a year from last motion; they did this In the District Court for the Eastern District of Virginia. On January 22, 1965, the trial judge denied the motion to vacate sentences. On February 11, 1965, the class action suit was denied by a three- judge District Court Panel, and the Lovings appealed to the Virginia Supreme Court of Appeals. On March 7, 1966, Justice Harry L. Carrico modified, but upheld the sentences in Loving v. Commonwealth, 147 S.E.2d 78 (1966); he also upheld the constitutionality of the anti- miscegenation statutes. Quoting Used Naim v. Naim (1955) as precedent, Justice L. Carrico claimed that since the races were punished equally by the statutes, the Lovings’ were not injured. The Lovings’ then appealed the decision, and the United States Supreme Court noted probable jurisdiction on December 12, 1966. On Monday, April 10, 1967 the Lovings’ case was argued before the United States Supreme Court and was then decided on June 12, 1967.
Whether statues enforced by the State of Virginia to stop marriages between consenting individuals singularly on the basis of race violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Arguments by Petitioners
Bernard Cohen and Phillip Hirschkop both addressed the court sharing the responsibility of arguing the case. Hirschkop spoke about the Equal Protection Clause and Cohen spoke about the Due Process Clause.
Hirschkop declared that the Virginia law, stating that there could be no intermarriage between Whites and those with Negro blood, as a “Slavery law” and not a “health and welfare” law as defined by the state of Virginia. He explained that there was only one issue that the court should be deciding and that is; may a state make marriage between two consenting adults illegal because they do not share the same race. Hirschop gave a brief history about the Marriage laws saying they are dated back to the 1600s and were meant to keep the white woman from mixing with black men and preserving white purity, and not to preserve the purity of negro women. Virginia laws deprive the Negro of self-worth by putting them in a “lower social position and “lower economic position “and that is what the laws were put in place to do. Hirschkop goes on to say that although all marriages of someone considered White to someone outside of their race are invalid, in Virginia only marriages between Negros and Whites are criminally punished, which means that the state “is not concerned with racial integrity, but the racial supremacy of the White race”. White racial supremacy impedes upon the liberties of Negros.
Cohen argued that the Virginia law preventing the Lovings to marry and live in the state was a violation of the due process clause of the fourteenth amendment. He emphasized that marriage is a fundamental right of liberty to all citizens, which is within the Ninth Amendment and the Due Process clause. Cohen stated that the Due Process Clause has been an issue in many cases and that all of the cases apply to the Lovings case in some way. He drew the strength of his argument from the core of the Fourteenth amendment that was passed specifically to combat racial discrimination.
Arguments by Respondent
R.D. McIlwaine III
McIlwaine opened his statement by addressing Hirschkop’s argument that the two statutes being decided upon were among many that were put in place due to slavery. Therefore, he held that history should be considered. Hirschkop, on the other hand, believed all that should be considered by the court were the two statutes of the Virginia code that prevented colored people and white people from getting married. McIlwaine explained that while it is true that there are only legal repercussions for Blacks and Whites to marry each other and not other races, it is because there is an insignificant amount of other races in Virginia. He contended that there has been no effect on state’s antimiscegnation laws in the history of the fourteenth amendment, therefore the court does not have the right to take away powers given to states. The reasoning behind these antimiscegnation statues according to the state of Virginia is because studies show that “interracial marriages are detrimental to the individual, to the family, and to society.”
In a 9-0 Unanimous vote, the justices agreed that the state of Virginia violated the due process clause of the fourteenth amendment. The court stated that the Virginia statues preventing the Lovings from marrying violated their liberty and personal right to marry whomever they chose. The court stated that, “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations”.
Majority Opinion (Warren)
Chief Justice Earl Warren authored the majority opinion. The decision was unanimous. Evaluating the Virginia statute punishing interracial marriage (Section 259) and the State’s support for Virginia statutes with Naim v. Naim 197 Va. 80, 87 S.E.2d 749 (which equated interracial marriages to the ‘corruption of blood’), Chief Justice Warren held the primary statute unconstitutional. The State argues 1) that its statute incriminating miscegenation is valid under the Equal Protection Clause as they apply to both races (i.e. both partners in the interracial marriage would be culpable) and, thus, 2) passes the rational basis test (considering that struct scrutiny, the constitutionality test used for racial classifications, is, to the State, unnecessary for an ‘equal application of a law’). Dismissing these propositions, Warren asserts that there is no rational basis/ compelling government interest for the racial classifications. Furthermore, the Court denied the State’s third argument that their equal application/ protection clause method was acceptable under Pace v. Alabama 106 U.S. 583 (1883) (a case punishing equally each person in an interracial relationship for fornication); the Court firmly responded, “the clear and central purpose of the Fourteenth Amendment [is] to eliminate all official state sources of invidious racial discrimination in the States” (Schubert). Explaining that distinctions based solely on one’s ancestry (i.e. immutable characteristics) conflict with the doctrine of equality embedded in the Constitution and attributing the prohibition of interracial marriages to White Supremacy’s agenda, the Court holds that this marital restriction violates the centrality of the Fourteenth Amendment and deprives the Lovings of their due process right to marry- “a basic civil right of man” (Schubert) untouchable by the States.
Associate Justice Stewart wrote the concurring opinion for Loving v. Virginia restating his concurring opinion in McLaughlin v. Florida 379 U.S. 184. 198, which said, it was impossible for a state law to be binding under the constitution if the criminality of the action depended on the person’s race.
Full Text of Opinions
In the Loving v. Virginia, the court unanimously overturned the lower court’s decision. The Commonwealth of Virginia stated that both whites and blacks were forbidden from marrying the opposite race. Also, both whites and blacks were penalized in the same manner under this law, and that the law was not racially discriminatory because of this. The U.S. Supreme Court ruled that the Virginia anti-miscegenation statute was in violation of the Fourteenth Amendment in the Constitution. Both the due process clause, and the equal protection clause of the amendment were being violated by this statute.
Chief Justice Earl Warren in his major opinion stated, “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” Also, Justice Stewart stated he believed that, “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.” Because I adhere to that belief, I concur in the judgment of the Court. With this unanimous decision, the U.S. Supreme Court show that a change in both civil rights and human understand was taking over in the United States.
After the unanimous ruling in Loving v. Virginia, individuals were free to marry anyone of any race. This was a huge step towards equality in America. Individuals were no longer being persecuted by the legal system and society for marrying someone of a different race. The Loving decision inspires movements to increase the qualities of minorities political and social rights. This case is said to have led to other things like the less racism in America, the first black president, and it drove the same-sex marriage debate. The Loving decision ended the legally enforceable segregation laws. As the last of Black Civil Rights cases such as 1938’s Missouri ex rel Gaines v. Canada, 1954’s Brown v Board of Education, and 1964’s McLaughlin v. Florida, all of which, respectively, ruled unconstitutional 1) the out- of- state placing for ‘separate but equals’ implementation, 2) the ‘separate but equal’ doctrine upheld in Plessy v. Ferguson, and 3) the cohabitation restrictions stemming from anti-miscegenation laws, Loving v. Virginia heralded the Civil Rights Era’s efforts to ascertain that blacks (humans) are equal.
A response to the reality of noncompliant desegregation pushes since the Brown decision and the judicial and evolving electorate’s discontent with subversive precedent, the Loving Decision was a medium for political and social equality. Also, being a post- war conception, the Loving decision recognized the increasing prominence of blacks in spacious segments of the United States like in states that were predominately white.
For example, the Loving decision was used to substantiate the eventual allowance of same- sex marriages, from its denotation in Lawrence for the sole sake of privacy for homosexuals to its immediate effect in Obergefell for legalizing gay marriage. Also, the Loving decision is incorporated in contemporary women’s studies, African American studies, and additional liberal arts to explore how the race/ discrimination problem has not ameliorated, but has simply changed form- a phenomenon experienced and displayed in media related publications of colorism, misogyny, and colorblindness.
Scholarly Commentary and Debate
With a unanimous decision in the Loving v. Virginia (1967) scholars, government offices and everyday people have debated the significance on the culture of America. Scholarly journals like Northwestern Law Scholarly Commons points out the outcome of loving was correct, but the thinking was wrong based on a Scalia-style of originalist thought. Attorneys for the LGBT movement use the loving case as it outline the 14th Amendment with the Due Process Clause in cases today. In applying Loving v. Virginia (1967) scholars have pointed out that the civil rights movement also help as the timing was right for a decision which helped blacks be equal to whites. In a case like Baker v. Nelson (1972) the Supreme Court decision again was in line with the time and what the American people may or may not have been ready for with a one line summary decision. Writing that “the exclusion of same-sex couples from marriage did not present a substantial federal question”. As more cases of who has the right to get married under the law arises people will point to the loving decision, but the time readiness may have more of an impact on how the courts rule.
- Equal Protection Clause of the Fourteenth Amendment
- Due Process Clause of the Fourteenth Amendment
- Pace v. Alabama 1883
- Maynard v. Hill 1888
- Naim v. Naim 1955
- Mc.Laughlin v. Florida 1964
- Loving v. Commonwealth 1966
Important Subsequent Cases
- Roe v. Wade 1973
- Lawrence v. Texas 2003
- U.S v. Windsor 2013
- Obergefell v. Hodges 2015
Calabresi, Steven G., and Andrea Matthews. “Originalism and Loving v. Virginia.” BYU L. Rev. (2012): 1393. Available Here
Christopher R. Leslie, Justice Alito’s Dissent in Loving v. Virginia , 55 B.C.L. Rev. 1563 (2014), Available Here
“Loving v. Virginia.” Law Cornell, Available Here
“Loving v. Virginia.” Oyez, Available Here Accessed 12 Feb. 2017.
Newbeck, Phyl and Brendan Wolfe. “Loving v. Virginia (1967).” Encyclopedia Virginia. Virginia Foundation for the Humanities, 26 Oct. 2015. Web. 12 Feb. 2017. Available Here
“Report on Loving Case 1967.” Youtube, uploaded by sgtrius, 28 July 2009, Available Here
Skelton, Chris. “Loving v. Virginia.” Supreme Justia, Available Here. Accessed 12 February 2017.
“Transcription from Original.” Excerpts from a Transcript of Oral Arguments in Loving v. Virginia (April 10, 1967). Accessed April 30, 2017. Available Here.
Academic Books, Law Review, and Articles
Epstein, Lee, and Thomas G. Walker. Constitutional Law for a Changing America: Rights Liberties, and Justice. 9th ed., Washington, D.C., CQ Press, 1992.
Lombardo, Paul A. “Miscegenation, eugenics, and racism: Historical footnotes to Loving v. Virginia.” UC Davis L. Rev. 21 (1987): 421.
Roberts, Dorothy E. “Loving v. Virginia as a Civil Rights Decision.” NYL Sch. L. Rev. 59 (2014): 175. Available Here
Romano, Renee Christine. Race mixing: Black-white marriage in postwar America. Harvard University Press, 2009.
Romero, Victor C., Crossing Borders: Loving v. Virginia as a Story of Migration. Howard Law Journal, Vol. 51, No. 1, Fall 2007 . Available at SSRN: Available Here
Schubert, Frank August. Introduction to Law and the Legal System. 11th ed., Stamford, CT., Cengage Learning, 2015.
U.S. Supreme Court. “Loving v. Virginia.” Social Policy: Essential Primary Sources, edited by K. Lee Lerner, et al., Gale, 2006, pp. 260-262. World History in Context, link. Available Here. Accessed 12 Feb. 2017.
Wadlington, Walter. “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective.” Virginia Law Review, vol. 52, no. 7, 1966, pp. 1189–1223. Available Here
Spring 2017 Sanchez Vanessa, Woods Christopher, Manning Michelle , Ohonba Brianna
Tasks for Future Contributors
Scholarly Debate and Articles