Well, I missed it by two days, but let’s do this anyway: Fifty-one years ago on Tuesday, a mere 99 years, 11 months and 3 days after we passed a constitutional amendment requiring states to stop with the racial discrimination already, the Supreme Court of the United States ruled that yes, Virginia, there are limits to constitutional violations and stop Freuding persecuting the Lovings already, okay?
In 1958 Mildred Delores Jeter, then 18 years old, became pregnant by Richard Perry Loving, then 24. Loving was welcomed into the Jeter family, even living in the family home for a time, but the pregnancy sparked the two to get married.
Living in Virginia their marriage was prohibited by Virginia’s Racial Integrity Act of 1924. Jeter, under the law, was classified as “Indian – Rappahannock”, though there’s considerable speculation that she was also Black but chose not to emphasize that for both legal and political reasons. Loving was classified as white, though he worked at a Black owned company, and most of Loving’s friends were Black. Under the law, the two could not marry in Virginia even though the “one drop” rule did not apply to single drops of indigenous blood. (An exception for anything up to 1/16th indigenous ancestry was included in the law to preserve the “white” status of wealthy Virginians whose family dated back to colonial days. Lawmakers called this the “Pocahontas” exception.) The one drop rule did apply, however, to any “negro, Mongolian, … Asiatic Indian, [or] Malay” ancestry. (This might account for a noted tendency among some Virginians to deny any Black ancestry.) The text of the marriage ban read:
It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this act, the term “white person” shall apply only to the person who has no trace whatsoever 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.
To evade the law Jeter and Loving married in Washington, D.C., at which time Jeter’s named changed to Mildred Delores Loving. But Virginia had thought of that, and had also criminalized marrying outside Virginia for the purpose of evading the Racial Ingrety Act’s ban. From Time Magazine:
At approximately 2 a.m. on July 11, 1958, Sheriff R. Garnett Brooks and his deputies barged into the couple’s bedroom. “What are you doing in bed with this woman?” Brooks barked as he shined his flashlight on the startled couple. Mildred responded, “I’m his wife.” She pointed to the framed marriage license displayed on the dresser. The document read: “Richard Perry Loving, white, Mildred Delores Jeter, Indian.”
The sudden entry was, apparently, an effort by the Sheriff to catch the Lovings having sex, which would have merited additional felony charges. (Think about that the next time you wanna talk fascist policing.)The next year, on January 6, the Lovings pled guilty to violating the law forbidding out of state marriages in evasion of the Racial Integrity Act. They were sentenced to 1 year in jail, with the sentence suspended for 25 years on condition that the couple not return to Virginia in each other’s company for that entire time. It was, in short, a sentence of exile more than a sentence of imprisonment. Mildred and Richard then moved to D.C. This proved key, because a single year’s punishment wouldn’t ordinarily be enough to merit appeal to the Supreme Court, but with the exile lingering for 25 years, there was plenty of time to meet the right attorney and make their case.
In 1963 Mildred wrote to the US Attorney General Robert F. Kennedy to explain her situation and ask for help. The years between early 1959 and mid-1963 had been momentous, with the Freedom Rides and other major desegregation efforts falling in that time. It may be that rapid changes gave her enough hope to believe that writing to Kennedy might provide some help. Whatever spurred it, her hope was well rewarded. Kennedy referred her to the ACLU.
The ACLU assigned her case to two volunteer attorneys who filed a motion with a Virginia court to vacate the Lovings’ convictions and/or set aside the sentences as unconstitutional violations of the 14th Amendment. The motion was filed on November 6, 1963. The Virginia courts did not act, perhaps hoping to wait out the case, exhausting ACLU resources without providing any definitive finding, order, or decision which might be appealed. On October 28, 1964 the Lovings’ lawyers upped the stakes by filing a federal class action lawsuit on behalf of all persons in circumstances similar to the Lovings. This prompted the state courts to finally issue a decision on the original, Loving-specific motion. That decision included the now-infamous passage, written by racist Leon M. Bazile,
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.
But of course it included much more than that. Literally the first sentence of the opinion asserted that the Lovings were guilty of “a most serious crime”. Bazile leaves no doubt of the contempt he holds for the Lovings. After describing the legislative history of the Racial Integrity Act and related statutes in order to show that Virginia did, indeed consider the conduct of the Lovings to be a crime, he wrote:
The awfulness of the offense is shown by Section 20–57 which declares: “All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.[“]
Then section 20–59 of the Code makes the contracting of a marriage between a white person and any colored person a felony.
Conviction of a felony is a serious matter. You lose your political rights; and only the government has the power to restore them ([Virginia State] Constitution Sec. 73.)
And as long as you live you will be known as a [felon]
“The moving finger writes and moves on
and having writ
Nor all your piety nor all your wit
Can change one line of it.”
The opinion was issued on January 22, 1965. From there the case made a relatively rapid trip to SCOTUS. It did stop briefly at the Virginia State Supreme Court where SCOV found (consistent with existing precedent) that Virginia’s laws were generally valid and that the Lovings’ convictions were specifically valid because the general and specific punishments did not vary by race: if you married across the state’s determination of your race, you were punished nor more or less than a person of another race would be when marrying someone of your state-identified race.
But the Lovings’ lawyers argued their case before SCOTUS on April 10, 1967. Richard asked his advocate, “tell the Court I love my wife, and it is just unfair that I can’t live with her in Virginia.” Chief Justice Warren’s opinion for the unanimous court is dated June 12, and reads in part:
Fuck you, Judge Bazile you white supremacist asshole.
Oops. Sorry about that. It doesn’t include that bit. Here’s the passage I was misremembering:
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.
As we’re remembering this case and the importance of its precedent, let’s not forget that this was not a Black/white issue to Virginia or to the Lovings. This is another case where someone of indigenous ancestry fought for the rights of us all, and even in winning was reduced by the media. Eager for a simplified racial story to tell, they wiped out Mildred Dolores Loving’s complex racial history and in passing eliminated another indigenous hero from US history.
So think about the Lovings this week. Think about Mildred’s letter. Think about history. But also think about the present, where today’s stories preserve the enforced ignorance of our past.