Richard and Mildred Loving’s Legal Entanglement with Anti-Miscegenation Laws

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.[1] 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.

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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.[2]

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.[3]  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.[4]

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.[5]

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,”[6] 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.”[7]

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.”

Conclusion

 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. [8]

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.

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[1] 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.

[2] 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.

[3] 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).

[4] Loving v. Virginia, 385 U.S. 986 (1966).

[5] 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.’”

[6] 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).

[7] 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).)

[8] 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.

 

U.N. Human Rights Committee’s Review of U.S. Human Rights

In March 2014, the United Nations’ Human Rights Committee (the Committee) made a very negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights.

Before we examine the Committee’s hearings that resulted in that very negative evaluation in subsequent posts, we will look at the background of the ICCPR and the events leading up to the Committee’s hearings and evaluation.

Background of the ICCPR

As discussed in a prior post, the ICCPR was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated.

The ICCPR (in terms reminiscent of the U.S. Bill of Rights) establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The ICCPR forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.

The ICCPR’s Part IV established the Human Rights Committee, and its Article 41 provides that periodically the States Parties to the treaty shall “submit reports on the measures they have adopted which give effect to the rights recognized . . . [in the treaty] and on the progress made in the enjoyment of those rights” and that the Committee “shall study [such] . . . reports . . . . [and make] such general comments as it may consider appropriate.”[1]

Under Articles 28 and 29 of the treaty, its states parties elect the 18 Committee members to four-year terms from “nationals of the States Parties . . . who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience, . . . [and] who shall be elected and shall serve in their personal capacity.”

The Committee, under Article 31, “may not include more than one national of the same State” and “consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.”

As discussed in a prior post, the Covenant went into force on March 23, 1976, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty. On October 5, 1977, the U.S. signed the treaty, but it was not until nearly 15 years later (June 8, 1992), that the U.S. ratified this treaty (with reservations) and became a state party thereto. Now there are 168 states parties to the treaty.

Events Leading Up to the Committee’s Evaluation 

1. U.S. Report. On December 30, 2011, the U.S. submitted to the Committee its 188-page Fourth periodic report.[2]

The report opened with these words of President Obama,“By no means is America perfect. But it is our commitment to certain universal values which allows us to correct our imperfections, to improve constantly, and to grow stronger over time. . . .”

The report then marched through the U.S. implementation of each of the 27 Articles of the ICCPR.

In conclusion, the U.S. report discussed the Committee’s Concluding Observations on the prior U.S. report that the U.S. “acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction, but outside its territory, as well as its applicability in time of war.” The U.S., however, reiterated its position that the Covenant does not so apply.

With respect to the Committee’s prior request that the U.S. “consider in good faith the interpretation of the Covenant provided by the Committee,” the U.S. continued to reject the Committee’s interpretation on applicability, but said it “appreciates its ongoing dialogue with the Committee with respect to the interpretation and application of the Covenant, considers the Committee’s views in good faith, and looks forward to further discussions of these issues when it presents this report to the Committee.”

2. Committee’s List of Issues. On April 29, 2013, after reviewing the U.S. report and Common Core Document, the Committee issued its six-page, 27-paragraph List of Issues, which asked the U.S. to respond to the following:

  • U.S. constitutional and legal framework: clarify U.S. position on applicability of Covenant for individuals under its jurisdiction, but outside its territory; measures to ensure state and local authorities comply with the Covenant; whether a national human rights institution will be established; and whether the U.S. will withdraw its reservations to the Covenant.
  • Non-discrimination and equal rights of men and women: describe efforts to address racial disparities in criminal justice system and to eliminate all kinds of racial profiling against Arabs, Muslims and South Asians; provide information on imposition of criminal penalties on street people and on obstacles to undocumented migrants’ accessing health services and higher education institutions.
  • Right to life: provide information on various issues regarding the death penalty and victims of gun violence; and clarify how drone attacks allegedly comply with the Covenant and whether senior officers and lower-ranking soldiers have been investigated and punished for unlawful killings in armed conflict.
  • Prohibition of torture and cruel, inhuman or degrading treatment or punishment and treatment of detainees: provide information on independent investigations of treatment of detainees, whether U.S. regards so-called “enhanced interrogation” to violate the Covenant, why the U.S. has not adopted a statute prohibiting torture within its territory, whether the U.S. systematically evaluates “diplomatic assurances” before transfers of detainees, addressing claims of police brutality and excessive use of force, regulation of electro-muscular-disruption devices, prohibition and prevention of corporal punishment of children and application of criminal law to minors, non-consensual use of medication in psychiatric and research institutions, solitary confinement, separation of juvenile from adults detainees, rights of detainees in Guantanamo Bay, Afghanistan and Iraq, rights of immigrant detainees and prevention of domestic violence.
  • Elimination of slavery and servitude: provide information on combatting human trafficking and protection of children from sexual exploitation.
  • Right to privacy: provide information on NSA surveillance.
  • Freedom of assembly and association: clarify why certain workers are excluded from right to organize in trade unions.
  • Freedom of movement, marriage, family and protection of minors: clarify whether all cases of individuals serving life sentences without parole for offenses committed as a minor have been reviewed and if U.S. will abolish such sentences; and provide information on children held at Guantanamo Bay, Afghanistan and Iraq.
  • Right to take part in conduct of public affairs: provide information on voting rights of citizens who have completed their sentences for felony convictions, states’ measures to impose legal or de facto disenfranchisement of voters and efforts to provide residents of District of Columbia right to vote and elect representatives to U.S. Senate and House of Representatives.
  • Rights of minorities: provide information on protection of indigenous sacred sites and their rights to be consulted and consent to matters affecting their interests.

3. U.S. Replies. On July 5, 2013, the U.S. submitted its 28-page Replies to the List of Issues. It said the U.S. responded “with great pleasure” and was “pleased to participate in this process.” The U.S., it said, “in the spirit of cooperation, provided as much information as possible in response to the questions posed by the Committee.”

The U.S., however, maintained its position that the treaty did not have extraterritoriality, i.e., it did not apply to U.S. conduct outside the U.S. It did provide some additional information, but did not retract any of its previous positions that prompted the Committee’s List of Issues.

4. Civil Society Organizations’ Submissions. Sometime prior to October 2013, 138 reports about the status of U.S. human rights were submitted to the Committee by civil society organizations, including Amnesty International, Human Rights Watch, the American Civil Liberties Union, Physicians for Human Rights and Minnesota-based Advocates for Human Rights.

5. Postponement. The Committee’s review of the U.S was scheduled for October 2013, but was postponed until March 2014, pursuant to a U.S. request due to the then ongoing U.S. government shutdown.[3]

6. U.S. Delegation. On March 7, 2014, the U.S. submitted to the Committee the list of members of the U.S. delegation for the upcoming session. The U.S. Representative was Mary McLeod, Principal Deputy Legal Adviser, Office of the Legal Advisor, Department of State. She was to be aided by 27 Advisers from the Departments of State, Justice, Defense, Homeland Security, Health and Human Services and Interior; the U.S. Mission to the U.N.; the Attorney General of the State of Mississippi; the Mayor’s Office of Salt Lake City, Utah; and a Private Sector Adviser (a private attorney from Los Angeles, California).

Conclusion

On March 13 and 14, 2014, the Committee held hearings in Geneva, Switzerland on the U.S. report and other information, and on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America) that was very critical of the U.S. compliance with the ICCPR.[4]

These subjects will be discussed in subsequent posts.

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[1] The nation states creating and joining this treaty chose to not grant the Committee the power to order the states to do anything. Instead, the Committee only may make recommendations as observations.

[2] The report was supplemented the same date by the 85-page U.S. Common Core Document that contained general information (U.S. demographic, economic, social and cultural characteristics) and legal information (U.S. constitutional, political and legal structure; general framework for the protection and promotion of human rights; and information on non-discrimination and equality and effective remedies).

The U.S.’ fourth periodic report and Common Core Document were preceded by the first U.S. report to the Committee on July 29, 1994 (with the Committee’s concluding observations on October 3, 1995) and the U.S.’ combined second and third reports on November 28, 2005 (with the Committee’s concluding observations on September 15 and December 18, 2006).

[3] The civil society organizations submitted to the Committee an additional 41 reports before the March 2014 Committee session.

[4] The Committee’s procedure and report are similar to, but separate from, the Universal Periodic Review (UPR) of U.S. human rights that is conducted by a separate U.N. organization, the Human Rights Council, as discussed in a prior post.