Loving v Virginia

Mildred and Richard Loving

1967 The story unfolds in the context of the beginning of the Vietnam War, counter culture of the 1960s and the Civil Rights struggle which resulted in large shifts in American society.

Back ground Richard Loving, white and Mildred Jeter, African American and Rappahannock Native American grew up together in Caroline County, Virginia. They fell in love and went to Washington, DC where interracial marriage was legal and married in June of 1958. Then they returned to Virginia.

Caroline County, VA July 1958 late at night… Sheriff Brooks and two officers came into their bedroom located in the home of Mildred’s parents to arrest them. “I woke up and these guys were standing around the bed. I sat up. It was dark. They had flashlights. They told us to get up, get dressed. I couldn’t believe they were taking us to jail.” Mildred Loving

The couple were not of the same race, therefore they had violated the law. Richard was held for one night. Mildred was kept for several days.

Encountering a series of laws against black-white marriages in Virginia. 1878 law defined black as ¼ 1878 moving out of Virginia to marry and then immediately returning to the state and claiming to be married 1910 1/16 1924 “one drop” rule 1958 At this time anti-miscegenation laws were being repealed by some states, but not in Virginia.

Sentencing January 1959 Mildred and Richard plead guilty and were sentenced to one year in jail. They received a suspended sentence if they would Leave Caroline County and Virginia Not return together for 25 years together After 25 years they would still face prosecution if they returned

Back and forth The Lovings moved back to Washington, DC. Mildred returned to Caroline County to give birth to their three children. “I wanted to come home. My family was here and my husband’s family was here. Moreover, she said, I hated to live in he city.” In 1963 Mildred wrote to Robert Kennedy, Attorney General. “I told of our situation and asked if there was any way he could help us.” Robert Kennedy suggested the ACLU.

Return to Court American Civil Liberties Union, ACLU lawyer Bernard Cohen took the case, later joined by Philip Hirschop. November 1963 a motion was filed to set aside the judgment. January 1965 Judge Bazile presided at the hearing to have his previous judgment set aside.

Judge Bazile The Loving marriage was void in Virginia. If they stayed that would face repeated prosecutions. Quoting a Virginia High Court case Naim V Naim marriage was “a subject which belongs to the exclusive control of the States”

Judge Bazile In conclusion the judge wrote: 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.

Virginia Supreme Court March 7, 1966 a unanimous court declared, “We find no sound judicial reason … to depart from our holding in the Naim case…” The law against interracial marriage was as sound as it was in the 1880s.

The Supreme Court decides to hear the case “the miscegenation issue… discrimination based on race must be examined carefully…” according to a Supreme Court clerk. December 1966 the court agreed to hear the case.

“The Loving's have the right to go to sleep at night knowing that if should they not wake in the morning, their children would have the right to inherit from them. They have the right to be secure in knowing that, if they go to sleep and do not wake in the morning, that one of them, a survivor of them, has the right to Social Security benefits. All of these are denied to them, and they will not be denied to them if the whole anti-miscegenistic scheme of Virginia... [is] found unconstitutional.“ Bernard Cohen, ACLU attorney.

Two sides Virginia Loving 14th Amendment equal protection and justification Privacy issues Right to happiness, the right to marry 10th Amendment, not the 14th should govern marriage Question the reach of the 14th Amendment punishment was equal The need for racial purity Federal case upholding bans on interracial marriage Racial purity argument

The Decision –June 1967 Chief Justice Earl Warren The Supreme Court rejected each of the state’s arguments. “…the Tenth Amendment had to yield to the Fourteenth when it came to the claim of “exclusive control” over the “regulation of marriage.” Miscegenation statutes of Virginia could no longer satisfy the standard of constitutionality.

Free Now The Supreme Court ruled unanimously that race could not be a factor in determining marriage laws.

DOMA Defense of Marriage Act May 1996 DOMA started its way through Congress in 1996 there was no state approved same-sex marriage. In September 1996 President Bill Clinton signed DOMA into law. Votes indicated that it would have become law even if he had vetoed it.

In support of DOMA DOMA validates states’ rights to define marriage for their own state purposes DOMA validates traditional recognition of marriage between one man and one woman for federal purposes

1996 Clinton and DOMA Clinton stated that the Act confirmed the right of states to determine the issues of same-sex marriage for their own state. The Act clarified the terms “marriage” and “spouse” for federal purposes. Clinton stated that he opposed same-sex marriage, but discrimination, violence or intimidation violated equal protection under the law.

Federal Purposes There are over 1,000 federal statutes and programs tied to marriage. The tax code dominates the use of the word marriage. The definition of marriage matters for purposes of social security Health care decisions, death benefits, adoption and child custody are all affected by the term marriage.

DOMA in 2011 President Obama and Attorney General Eric Holder announced that we could no longer defend DOMA in certain court cases, but at the same time they would continue to enforce the law. Speaker John Boehner, on behalf of the US House of Representatives, hired outside lawyers to defend DOMA. Part of Justice department appropriations are for this purpose.

Supreme Court March 27, 2013 The U.S. Supreme Court will begin hearing two cases. Edith Windsor legally married in Canada in 2007 to her same-sex partner, Thea Spyer. Ms. Spyer passed away leaving her estate to Ms. Windsor. Both were residents of New York state, which at the time of Ms. Spyer’s death, recognized same-sex marriage Ms. Windsor then owed almost $400,000 in federal estate taxes, which she would not have had to pay had federal law recognized her marriage. Ms. Windsor argued in court that Section 3 of DOMA was unconstitutional . The Second Circuit court agreed.

Supreme Court March 27, 2013 The second case to be ruled on will determine in California’s Proposition 8 which changes the state constitution is in alignment with the U.S. Constitution. The federal Government says that California couples have the same rights through civil unions, but it doesn’t allow couples to get married. Because same-sex couples are being treated differently they are not being treated equally as required by the Constitution.

Sources Amy Howe, Court to consider same-sex marriage cases: In Plain English, SCOTUS blog (Nov. 29, 2012, 8:39 PM), http://www.scotusblog.com/2012/11/court-to-consider-same-sex-marriage-cases-in-plain-english/ Amy Howe, In Proposition 8 case, the federal government weighs in: In Plain English, SCOTUS blog (Feb. 28, 2013, 6:26 PM), http://www.scotusblog.com/2013/02/in-proposition-8-case-the-federal-government-weighs-in-in-plain-english/ It’s time to overturn DOMA By Bill Clinton, March 07, 2013, Washington Post http://www.huffingtonpost.com/news/republicans-doma http://www.nytimes.com/2012/12/08/us/supreme-court-agrees-to-hear-two-cases-on-gay-marriage.html?_r=0

Sources 388 U.S. 1 APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA Syllabus Tell the Court I Love My Wife . Peter Wallenstein. Palgrave.2002.New York. From Jim Crow to Civil Rights. Klarman Michael. Oxford University Press.2004.New York. Definition of miscegenation found at www.dictionary.com Pascoe, P. (2009). What comes naturally: Miscegenation and the making of race in America. New York: Oxford University Press. Multiple documents found at www.loc.gov individual sources found on slides.