A couple of days ago, June 12, 2007, marked the 40th anniversary of Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court decision that ended the practice of making interracial marriages a crime. The Warren Court, famous for its seminal decisions in the area of defendants’ rights, stepped into the area of personal relationships, and marital ones at that.
In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, left the State of Virginia and crossed over into the District of Columbia to marry. While Virginia prohibited interracial marriage, the District of Columbia did not forbid such marriages. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County.
However, Virginia was one of a number of states with anti-miscegenation statutes on the books. The purpose of the statutes was to prevent mixing – miscegenation – of the races in order to maintain the “purity” of the white race.
The two statutes under which the Lovings were convicted and sentenced were part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating the following two sections of the Virginia Code:
§ 20-58 of the Virginia Code:
“Leaving State to evade law. — If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.”
Section 20-59, which defines the penalty for miscegenation, provides:
“Punishment for marriage. — If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”
At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. The trial judge opined that:
“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.”
After their convictions, the Lovings left the State of Virginia and established residence in the District of Columbia. They ultimately filed to have their convictions vacated but were unsuccessful in their efforts before the Caroline County trial court and the Supreme Court of Appeals of Virginia. Failing at both attempts to vindicate their relationship, the Lovings appealed to the United States Supreme Court in 1966.
The Lovings’ appeal rested on the 14th amendment’s equal protection and due process clauses. The 14th amendment was passed in 1868 at the end of the Civil War along with two other amendments known collectively as the “Civil War Amendments” or the “Reconstruction Amendments.” Those three amendments were the 13th Amendment passed in 1865, which outlawed slavery and involuntary servitude – except as punishment for crime; the 14th Amendment, which mandated that states not deprive its citizens of life, liberty, or property without due process of law, nor deny equal protection of the laws, nor abridge the privileges and immunities of citizenship; and the 15th amendment passed in 1870, which prohibited the abridgment of voting rights based on race, color, or previous condition of servitude.
When the Supreme Court reviews a case alleging a violation of the 14th amendment, it must use a standard of review. Each clause in the 14th amendment means something different. The “privileges and immunities” clause was interpreted narrowly in the 1873 Slaughterhouse Cases as protecting only those rights of national citizenship, thus that clause is rarely used to argue violations of constitutional rights. However, the equal protection clause of the 14th Amendment and the due process clause of the 14th Amendment have been used extensively to selectively impose many of the guarantees of the Bill of Rights against the states. Recall, the Bill of Rights was established to prevent abuse of rights by the federal government, not the state governments. Yet, state governments were also capable of denying rights and trampling on fundamental freedoms. Thus, the Supreme Court began using the 14th Amendment as a way to stop states from abusing the rights of their own citizens.
The Equal Protection Clause does not prohibit all discrimination, just unreasonable discrimination. If a law treats people differently, the state must demonstrate a good reason for the difference in treatment. Under the Equal Protection Clause, when a state passes a law, generally the Court defers to the state legislature and only looks to see if the state has a rational basis for imposing a law. This is a fairly easy standard of review. But if the legislation touches on either a suspect classification such as race or a fundamental right such as free speech, the state must show that its law reflects a “compelling state interest” in order to survive a constitutional challenge. The Supreme Court uses the standard of strict scrutiny which is the highest and toughest standard used by the Court to review these cases.
Since the Virginia statutes were based on a racial (suspect) classification, the Supreme Court used the strict scrutiny standard of review to ascertain whether the State of Virginia had a compelling state interest in prohibiting interracial marriages. In deciding the state did not have a compelling interest, the Supreme Court held that:
“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race.
There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”
The Supreme Court also addressed the issue that the statutes deprived the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The Court held that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
The landmark opinion was written by Chief Justice Earl Warren who was joined by Justices Black, Douglas, Clark, Harlan, Brennan, Stewart, White, and Fortas. The decision was what is known as a unanimous decision, 9-0, the strongest statement of belief that the Supreme Court imposes. Loving v. Virginia ended, finally, the prohibition against interracial marriage. Just two generations ago a fundamental right that we take for granted today, did not fully exist.
NOTE: The Lovings were the parents of three children. Tragically, Richard was killed in a car accident in 1975; Mildred, who is till living today, lost an eye in the accident. The story of the Lovings was turned into a movie in 1996 titled Mr. & Mrs. Loving, starring Lela Rochon, Timothy Hutton, and Ruby Dee.