Press-Republican

February 12, 2012

A historic battle for interracial marriage

A historic battle for interracial marriage laws

ROBIN CAUDELL
Press-Republican

PLATTSBURGH — Loving.

A better name could not have been scripted for the 1967 U.S. Supreme Court decision that struck down 16 states' statutes against interracial marriage.

Loving v. Virginia.

Richard Perry Loving, a white man, and Mildred Delores Jeter, a woman of black and Native-American descent, married in Washington, D.C., on June 2, 1958. After returning to their home in Caroline County, Va., they were arrested, jailed and convicted for violating Virginia's Racial Integrity Act, which prohibited interracial marriage between whites and non-whites.

Section 20-54 of the Virginia Code defined "white," in part:

"For the purpose of this chapter, the term 'white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons."

The same code defined colored persons and Indians as "every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians."

'I LOVE MY WIFE'

Blood quantum didn't matter to the Lovings. They simply wanted to live married in Virginia and wanted their children legitimized.

Mrs. Loving was a product of Central Point, a multiracial community. There were others like them who were married but hid it or were in common-law relationships without the advantages of marriage.

Miscegenation statutes similar to Virginia's existed in Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and West Virginia. Maryland repealed its prohibitions against interracial marriage after the Loving suit was filed.

Mrs. Loving wrote a letter to Attorney General Robert F. Kennedy, who directed the Virginia couple to seek assistance from the American Civil Liberties Union.

In a New York Times article (June 12, 1992) marking the 25th anniversary of the historic decision, Mr. Loving was quoted before the court ruling: "Mr. Cohen, tell the Court I love my wife, and it is just unfair that I can't live with her in Virginia."

EQUAL PROTECTION

Retired Plattsburgh City Court Judge Penelope Clute graduated from Michigan State University the year the Supreme Court decided in favor of the Lovings. She attended law school 1970 through 1973 at Wayne State University.

"Loving v. Virginia was a major case that we read in constitutional law class," Clute said. "I just remember that time period of the late '60s and the Warren Supreme Court made a number of significant constitution decisions, especially about equal protection. That was a period of time during the civil rights movement, equal protection of the laws was very alive, very significant in Supreme Court decision making, and therefore for law students studying the law. Equal protection and due process were very big decisions made during that time."

Clute remembered the case and the name. She didn't recall that it was a criminal case.

"They were actually sentenced to jail and banished from the state for 25 years as a condition of their sentence," she said. "That seems astounding.

MARRIAGE A CRIME

The facts of Loving v. Virginia were straightforward.

"There was no controversy," Clute said. "This was absolutely clear. He's white. She's black. And they can't live in the state even if they married elsewhere. It was a straight forward constitutional test and a very important decision."

When attorney Mark Schneider reads "Loving v. Virginia," what leaps out at him is how the Lovings' marriage was a crime.

"Another thing that occurs to me is they did cite a statute that made sex between the races illegal equally for blacks and whites. It's interesting in light of the some of founding fathers who slept with their black slaves."

The U.S. Supreme Court cited two legal bases for Loving v. Virginia, one of which was equal protection under the 14th Amendment to the U.S. Constitution.

"Virginia argued that both the white and black partners in the marriage would both be penalized," Schneider said. "It was not unfair. The Supreme Court in its wisdom placed a very heavy burden when you discriminate on the basis of ancestry and race. Two members of the court said they 'cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense.'"

BASIC CIVIL RIGHT

Loving v. Virginia also violated due process, also part of the 14th Amendment.

"You are allowed due process of law," Schneider said. "This is where the court held that marriage is one of the basic civil rights fundamental to our very existence and survival. This is the section that people who are looking to expand this case to cover gay marriage or whatever are saying it's a basic right, fundamental to our existence and survival."

In its closing paragraph, the Supreme Court stated:

"The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

"Denying this fundamental right subverts the principle of equality at the heart of the 14th amendment," Schneider said.

"Other distinctions can be used to limit marriage," he said. "That leads to the controversy you are looking at now. A hundred years ago, interracial marriage was seen as incorrect. Now, people think same-gender marriage is incorrect."

The Supreme Court decision restored the Lovings to their home in Virginia after nine years in exile. They raised three children and their marriage proved a lengthy union — Mr. Loving died in 1975 in a collision with a drunk driver. Pneumonia took Mrs. Loving's life in 2007.

Email Robin Caudell at: rcaudell@pressrepublican.com