Supreme Court Arguments

The Lovings’ lawyers, Bernard S. Cohen and Philip J. Hirschkop, argued that the Virginia laws against interracial marriage came from slavery laws. They also drew the connection between interracial marriage bans and racial segregation in public schools, which had been overturned 13 years earlier in the U.S. as a result of the Brown v. Board of Education (1954) decision.

Arguing against white supremacy

They named white supremacy as the underlying reason for such laws. In Virginia, the laws were focused on preserving the “racial integrity” of white people and preventing relationships between white and Black people. Similar laws in other states also banned relationships between white people and other racial groups. However, there were no restrictions on relationships between two people of color in Virginia, and they were rare in other states.

Arguing against harm to Black people

They also showed that the laws were intended to oppress Black people.

“These laws robbed the Negro race of their dignity. It’s the worst part of these laws and that’s what they’re meant to do, to hold the Negro class in a lower position, lower social position, the lower economic position.”

Arguing for equal protection

These laws, intended to uphold white supremacy and oppress Black people, denied the Lovings and so many others of their rights to equal protection and due process under the law granted by the 14th Amendment of the U.S. Constitution. In addition to legal arguments, the Lovings’ lawyers also described the negative impact on Lovings’ daily lives.

“Now, the State is ignoring a very important point…the right of Richard and Mildred Loving to wake up in the morning or to go to sleep at night knowing that the sheriff will not be knocking on their door or shining a light in their face in the privacy of their bedroom…knowing that should they not awake in the morning, their children would have the right to inherit from them.”

Arguing for love

In addition to their legal arguments, the Lovings’ lawyers also argued for the fundamental right to love.

“No matter how we articulate this…no one can articulate it better than Richard Loving when he said to me, ‘Mr. Cohen, tell the Court I love my wife and it is just unfair that I can’t live with her in Virginia.’”

William M. Marutani of the Japanese American Citizens League (JACL) also made arguments in the courtroom in support of the Lovings as a “friend of the court” (referred to in law as “amicus curiae”).

He argued that Virginia law required claiming “no trace whatever of any blood other than Caucasian,” which is impossible for anyone to prove – including Richard Loving. And then, “clerks, judges and juries, take vague and scandalous terms such as colored person, white person, Caucasian” and use their “interpretation of these terms” to determine who was violating the law.

“We submit that race as a factor has no proper place in states’ laws governing whom a person by mutual choice may or may not marry.”

He also argued an “uneven application of the laws” where “Virginia’s laws are exposed for exactly what they are, a concept based upon racial superiority – that of the white race and white race only.”

NAACP Legal Defense and Education Fund (LDF) contributed their expertise to the Lovings’ defense through a document known as an “amicus brief.” The authors were Jack Greenberg, James M. Nabrit III, and Michael Meltsner. In addition to arguments for equal protection and due process, they asserted that a person’s race cannot be “the test of criminality.”

“Actually, the laws against interracial marriage grew out of the system of slavery and were based in race prejudices and notions of Negro inferiority used to justify slavery, and later segregation.”

Because racial segregation was no longer legal, they argued that all state laws based on segregation should be invalid – including the Virginia law that affected the Lovings.

“Virginia’s principal apparent claimed justification for the law against interracial marriage…thus turns on the amalgam of superstition, mythology, ignorance, and pseudo-scientific nonsense summoned up to support the theories of white supremacy and racial ‘purity.’”

In addition to the NAACP Legal Defense Fund (LDF), several other organizations filed amicus briefs in support of the Lovings’ Supreme Court case:

The NAACP (written by Robert L. Carter and Andrew D. Weinberger)

The National Catholic Conference for Interracial Justice et al. (written by William M. Lewers and William B. Ball)

The State of Virginia’s lawyer, Robert D. McIlwaine, III, argued that laws against interracial relationships were reasonable and should be allowed for two reasons. First, states including Virginia had the right to outlaw interracial marriages because these laws did not violate the equal protections guaranteed by the Fourteenth Amendment. Second, Virginia was justified in “preventing a sociological, psychological evils which attend interracial marriages, and is…a rational expression of a policy which Virginia has a right to adopt.”

Arguing that interracial marriage bans were legal

McIlwaine argued that historical context was important, saying that the Framers of the Fourteenth Amendment never intended to prevent interracial marriage or states’ rights to create laws to that effect.

“The proponents would never have suggested that the Fourteenth Amendment was going to abolish the power of the States to forbid interracial marriage.”

McIlwaine also argued that the “problem” of interracial marriage should be left to the state legislators, saying that “each individual state has the right to make this determination for itself because under the Fourteenth Amendment it was intended to leave the problem there.”

Arguing to prevent sociological “evils”

McIlwaine argued that society is structured on the institution of marriage and that “the State has a justifiable and overriding interest in preventing interracial marriages,” similar to preventing polygamous and incestuous marriages. McIlwaine cited social scientists who claimed that “interracial marriages are definitely undesirable that they hold no promise for a bright and happy future for mankind.”

He also argued that Virginia laws “serve a legitimate…objective of preventing sociological, psychological evils which attend interracial marriages…” and quoted a text that referred to multiracial children as “the victims of intermarried parents.”

Some questions from the Justices

The Justices questioned McIlwaine’s argument that laws against interracial marriage were intended to “preserve racial purity” of all races. If this were true, then why did they only prevent a white person from marrying a Black person? McIlwaine reasoned that white and Black people make up 99.4% of Virginia’s population according to census statistics, and therefore marriages to people of other races do not “present a problem, with which we are required to deal.”

Chief Justice Earl Warren asked if Virginia’s arguments based on “scientific evidence” were any different than arguments for racial segregation. McIlwaine replied that they were no different, but the evidence he presented “supports the view not of racial superiority or inferiority, but a simple matter of difference that the difference is such that the progeny of the intermarried are harmed by it.”

Context for Virginia’s arguments

By arguing in states’ rights to enact such laws, Virginia was continuing a legacy of structural racism with legal origins from the 1600’s, the colonial period which preceded the founding of the United States. At some point in their history, 41 out of 50 U.S. states had laws against interracial marriage and relationships. At the time of the Supreme Court arguments, 16 states (including Virginia) still enforced these laws.

“For over a hundred years since the Fourteenth Amendment was adopted, numerous states as late as 1956, the majority of the States, and now even 16 states have been exercising this power without any question being raised as to the authority of the States to exercise this power.”

“This power” included laws like Virginia’s “Racial Integrity Act of 1924,” which the Lovings had violated by being married.

The State of Virginia’s arguments did not win their case. However, the underlying racist thinking and social structures still exist today and must be dismantled.

The State of North Carolina’s Attorney General (T. W. Bruton) and its Deputy Attorney General (Ralph Moody) filed an amicus brief in support of the State of Virginia.

The U.S. Supreme Court ruled in favor of the Lovings in a unanimous decision. They found that Virginia’s laws against interracial marriage violated the Lovings’ right to equal protection under the law guaranteed by the 14th Amendment to the U.S. Constitution. Chief Justice Earl Warren wrote:

“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.”

This landmark decision struck down these laws in the 16 states that still enforced them (including Virginia).

For the Lovings, this decision reversed their criminal conviction from 1958. Nine years after they were arrested, they were finally free to live in Virginia as a married couple with their three children.

The Loving v. Virginia decision was June 12th, 1967. It’s the reason that Loving Day is on June 12th.

While the Loving decision was an important legal milestone in the U.S., it’s not the end of the story. The underlying structural inequities and racist attitudes that enabled these laws still exist, and we must continue to dismantle them.