Last Saturday I saw the beautiful new movie “Loving,” which tells the true story about the love between Richard Perry Loving, a white man, and Mildred Delores Jeter, a black woman, who were married in June 1958 in the District of Columbia. Soon thereafter they returned to their home in Caroline County, Virginia, where they established their marital abode and where they were criminally prosecuted and convicted for violating the state’s anti-miscegenation laws. They then were sentenced to one year in prison, but with suspension of the imposition of that sentence for 25 years on condition they live outside the state, which they did by returning to the District of Columbia.
Later the movie depicts their challenge with the aid of the American Civil Liberties Union (ACLU), to the constitutionality of these Virginia statutes with the U.S. Supreme Court eventually ruling in their favor. Below is an actual photograph of the couple and one of the actors (Ruth Negga and Joel Edgerton) who played the couple in the movie.
This beautiful movie prompted the following report of the legal details of their entanglement with anti-miscegenation laws.
Legal Proceedings in State Court
Their legal problems started with an October 1958 grand jury indictment charging the couple with violating the following provisions of Virginia’s ban on interracial marriages:
- “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.” (Va. Code § 2-59)
- “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.” (Va. Code § 2-58)
On January 6, 1959, the Lovings pleaded guilty to those charges and, as previously mentioned were sentenced to one year in jail, but with suspension of the sentence for a period of 25 years on the condition that the couple leave the State and not return to Virginia together. The trial judge stated in his opinion 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 marriage. The fact that he separated the races shows that he did not intend for the races to mix.”
The Lovings then returned to the District of Columbia, where they established their home for at least the next eight and a half years.
In the meantime, nearly five years after their convictions, on November 6, 1963, with the aid of attorneys from the ACLU, they filed a motion in the Virginia state trial court to vacate the judgment of conviction and set aside the sentence on the ground that the statutes which they had violated were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
Nearly 15 months later, on January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the state’s Supreme Court of Appeals.
On March 7, 1966, the seven justices of the Virginia Supreme Court of Appeals unanimously upheld the constitutionality of the anti-miscegenation statutes and, after modifying the sentence, affirmed the convictions. The entire opinion was based upon that court’s having upheld the constitutional validity of these statutes in a 1955 case (Naim v. Naim) and concluding that there had not been any change in the law on this issue in the subsequent 11 years. As the Virginia court stated:
- “Our one and only function in this instance is to determine whether, for sound judicial considerations, the Naim case should be reversed. Today, more than ten years since that decision was handed down by this court, a number of states still have miscegenation statutes and yet there has been no new decision reflecting adversely upon the validity of such statutes. We find no sound judicial reason, therefore, to depart from our holding in the Naim According that decision all of the weight to which it is entitled under the doctrine of stare decisis, we hold it to be binding upon us here and rule that Code, §§ 20-58 and 20-59, under which the defendants were convicted and sentenced, are not violative of the Constitution of Virginia or the Constitution of the United States.”
Proceedings in U.S. Supreme Court
The Lovings appealed this decision to the U.S. Supreme Court, which noted probable jurisdiction on December 12, 1966.
After the attorneys’ briefing and oral arguments, The Supreme Court on June 12, 1967, issued its unanimous decision holding that the Virginia anti-miscegenation statutes were unconstitutional.
In his opinion for the Court, Chief Justice Earl Warren noted that the two Virginia statutes in question were “part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages,” that they were part of Virginia’s Racial Integrity Act, which was adopted in the “period of extreme nativism” of 1924 and that “[p]enalties for miscegenation arose as an incident of slavery, and have been common in Virginia since the colonial period.” Moreover, the opinion recognized that Virginia then was “one of 16 States which prohibit and punish marriages on the basis of racial classifications.”
After rejecting various arguments advanced by the State of Virginia, the Chief Justice said, “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 Court’s opinion also concluded that the Virginia “statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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.”
“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. . . . To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. 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.”
From a 2016 perspective, it is difficult for this blogger to believe that only 50 years ago 16 states in the U.S. still had anti-miscegenation laws and were trying to defend their constitutionality. As the movie clearly points out, the Lovings did not have the financial means to mount a challenge to these laws, and the legal assistance of organizations like the ACLU is absolutely necessary for such litigation to be conducted. 
While the various phases of the litigation were proceeding over nearly nine years, Mr. and Mrs. Loving had to live with this legal cloud hanging over them that prevented them from living in their native Virginia.
Since the Supreme Court’s decision in this case, the number of interracial marriages in the U.S. has increased from 0.4% in 1960 to 0.7% in 1970, 1.9% in 1980, 2.8% in 1990, 7.0% in 2000 and 10.0% in 2010. The date of the Supreme Court decision (June 12) is now remembered in the U.S. as “Loving Day” and the decision itself was cited as precedent in federal court decisions invalidating restrictions on same-sex marriage.
This case also reminded me of the personal story of Lawrence Hill, the noted Canadian author of “The Book of Negroes” about a young African woman who is kidnapped from her native village and taken by a slave ship to the U.S., where she becomes literate and is hired by the British forces at the end of the American Revolutionary War to create the actual Book of Negroes to register those Negroes who helped the British and who thereby were eligible to evacuate Manhattan with their forces. As discussed in a prior post, Hill’s parents— a black father and a white mother —were U.S. citizens who emigrated to Canada the day after they were married in 1953 in the District of Columbia in order to escape racial discrimination and anti-miscegenation laws. Both of them were involved in the human rights movement, an influence Hill readily acknowledges.
 Dargis, Review: In ‘Loving,’ They Loved. A Segregated Virginia Did Not Love Them Back, N.Y. Times (Nov. 2, 2016) The movie is directed by Jeff Nicols and stars Joel Edgerton and Ruth Negga.
 The Virginia trial court presumably was pressed finally to issue its decision on the motion to vacate by the Lovings commencing on October 28, 1964, a class action in the U.S. District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia anti-miscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court.
 Loving v. Commonwealth,206 Va. 924, 147 S.E.2d 78 (Va. Sup. Ct. 1966) ; Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (Va. Sup. Ct. 1955). remanded, 350 U.S. 891 (U.S. Sup. Ct. 1955), aff’d, 197 Va. 734, 90 S.E.2d 849 (Va. Sup. Ct. 1956), appeal dismissed, 350 U.S. 985 (U.S. Sup. Ct. 1956).
 Loving v. Virginia, 385 U.S. 986 (1966).
 Loving v. Virginia, 386 U.S. 1 (1967). Mr. Justice Stewart submitted a brief concurring opinion to reiterate his “belief 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.’”
 Other provisions of the Virginia statutes automatically voided all marriages between “a white person and a colored person” without any judicial proceeding (§ 20-57) and defined “white persons” and “colored persons and Indians” for purposes of the statutory prohibitions (§§ 20-54 and 1-14).
 The other states with anti-miscegenation laws were Alabama, Arkansas, Delaware, Florida, Kentucky, Louisiana, Mississippi, Missouri, North carolina, Oklahoma, South Carolina, Tennessee, Texas and West Virginia. (Justices Upset All Bans On Interracial Marriage, N.Y. Times (June 13, 1967).)
 As discussed in an earlier post, I was a pro bono volunteer attorney for the Minnesota ACLU chapter in a lawsuit challenging the constitutionality of a Minneapolis Police Department raid and arrests of citizens at a political fundraiser.