The Fortieth Anniversary of Loving v. Virginia: The Personal and Cultural Legacy of the Case that Ended Legal Prohibitions on Interracial Marriage
Part One in a Two-Part Series

June 12 will mark the 40^th anniversary of Loving v. Virginia, the 1967 opinion in which the U.S. Supreme Court ruled that Virginia's criminal ban on interracial marriage was unconstitutional.

The ruling sounded the death knell for anti-miscegenation laws not only in Virginia, but also in the fifteen other states that still had them on the books. In this column, I'll ask: What is the legacy of this opinion, four decades later?

The Case's Path to the Supreme Court

Loving v. Virginia was, ultimately, a case about one marriage: that of Mildred Jeter, a part-African, part-Cherokee woman, and Richard Loving, a white man, who crossed the border in 1958 from their home state of Virginia to neighboring Washington, D.C. to marry. After Jeter and Loving returned to Virginia and set up house, they were indicted for violating Virginia's ban on interracial marriages.

The indictment came about when three law enforcement officers entered the Lovings's bedroom, shined a flashlight on them, and demanded to know why Richard was in bed with "this lady". The officers were unimpressed by the D.C. marriage certificate hanging on the wall; "That's no good here," Richard was told. (The details of the arrest are described, among other places, in a 1992 New York Times article by David Margolick entitled "A Mixed Marriage.")

The Lovings were arrested and convicted pursuant to a Virginia law that criminalized not only marriage between a white person and a "colored person" in Virginia, but also such a marriage when entered into out of state, if the marriage was celebrated by Virginia residents who left in order to evade the state's prohibition.

The trial judge suspended the sentences, on the condition that the couple leave the state of Virginia and not return there together for twenty-five years. The judge infamously opined at sentencing 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 marriages. The fact that he separated the races shows that he did not intend for the races to mix."

After being convicted in Virginia, the Lovings relocated to neighboring D.C., in order to comply with the conditions of their sentences. However, they returned to Virginia four years later to challenge their convictions as violating both the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution.

The Lovings's Day in the Supreme Court, and How the Court Ventured Into New Territory

The Lovings took their case all the way to the U.S. Supreme Court. Their claim was a novel one, since, at that time, the Supreme Court had never invalidated a state restriction on marriage. The Court's role, instead, had been limited to refereeing conflicts between the states, which had long differed about what restrictions to place on eligibility for marriage and the accessibility of divorce. Before Loving, then, rather than developing federal law norms about the right approach to regulating marriage and divorce, the Court had needed only to develop a coherent approach to interstate conflicts. This limited role for federal courts was consistent with the longstanding belief that domestic relations law was an area reserved to the states.

Loving, however, heralded a new era for the Supreme Court -- one in which the Court forced state marriage laws to yield to developing federal constitutional norms of equality and privacy. In striking down Virginia's anti-miscegenation law, the Supreme Court reached three important conclusions:

First, although earlier cases had implied that states' power to regulate marriage was unlimited, the Court in Loving made clear that state marriage laws must comply with federal constitutional norms.

Second, the Court concluded that Virginia's miscegenation ban violated the Equal Protection Clause of the Fourteenth Amendment, because it relied on a race-based classification to define eligibility to marry. Virginia had argued, unsuccessfully, that because its statutes "punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination on the basis of race." The Court rejected this "equal application" theory of discrimination law, noting that the fact that the law "prohibits only interracial marriages involving white persons demonstrates that the classifications must stand on their own justification, as measures designed to maintain White Supremacy." Such a law, the Court concluded, violates the "central meaning of the Equal Protection Clause."

Third, and finally, the Court concluded that Virginia's miscegenation ban also violated 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," the Court explained. "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Under the Court's substantive due process doctrine, fundamental rights cannot be infringed without a compelling governmental reason. Virginia had no such reason to justify its ban, and thus the Court found a clear Due Process violation.

The immediate import of Loving was clear: States no longer had the power to prohibit interracial marriages. However, as the next sections will explore, the ruling had other notable effects as well.

The Legacy of Loving for the Lovings Themselves

With the Supreme Court's ruling in hand, the Lovings were finally able to return to Virginia without fear of criminal persecution, and with the veil of illegitimacy raised from the heads of their three interracial children. That meant a great deal to them, for returning home as a couple was their ultimate goal, according to Robert Pratt, who knew both Richard and Mildred.

Interestingly, the Lovings did not see themselves as civil rights activists or heroes, but rather simply as people engaged in a personal struggle for freedom. They did not attend the argument in the Supreme Court, and, when asked by Ebony magazine what the ruling meant for them, Richard said only that: "For the first time, I could put my arm around her and publicly call her my wife." Mildred reported similar sentiments, telling the Washington Post in 1967 that "I feel free now . . . it was a great burden."

Though many people remained opposed to interracial marriage, the Lovings told reporters they had the support of their hometown community and were welcomed home. Richard told Life magazine that they "encounter hostile stares only when they venture away."

The Lovings's marriage ended tragically in 1975 when Richard was killed by a drunk driver. Mildred lost an eye in the same accident, but lived several decades more without Richard. She and the sheriff who arrested them never "exchanged a single word," though both lived in the same small Virginia town for decades.

When David Margolick interviewed the sheriff for the New York Times in honor of the 25th anniversary of the ruling, in 1992, the sheriff was unapologetic about his role in the case. He said, "I was acting according to the law at the time, and I still think it should be on the books. I don't think a white person should marry a black person. I'm from the old school. The Lord made sparrows and robins, not to mix with one another."

The Cultural Legacy of Loving

Occurring just two months after the Court handed down its Loving decision, Virginia's first interracial marriage was scarcely noted by the press. And months later, the first interracial marriage in Tennessee was celebrated on the steps of the Nashville City Hall and Courthouse.

Yet the acceptance of interracial marriage was by no means immediate nationwide. Indeed, the day after the decision came down, the sitting Governor of Georgia, Lester Maddox, observed that he would prefer to see "less mixed marriages. But if one doesn't know any better than to mess up, let them have it."

It is hard to say whether this view represented any kind of national consensus, but Maddox's begrudging acceptance of the legal ruling despite his clear objection to the underlying social practice was no doubt shared by others. Indeed, in a 1964 New York Times article, Anthony Lewis predicted that the invalidation of laws banning intimacy between whites and blacks would have little practical effect: "Only social disapproval really inhibits marriage between whites and Negroes now. Any southern couple desiring to marry in the face of a state antimiscegenation law can go to a state without one. It is the whole social apparatus of caste, and history, that makes intermarriage unlikely."

Lewis's prediction was reinforced by an article a few years later in which Barry Furlong reported on several black-white interracial marriages in which the respondents described a variety of problems, both personal and societal, that resulted from their status as parties to a racially-mixed marriage. Furlong asserted that "[t]here is a singularity to each of those marriages, though some are more singular than others. No one couple reflects all of the woes and tribulations of marriages across racial lines, but there are some representative reactions and problems." The problems reported ranged from family estrangement, to rejection by religious groups, to difficulty traveling.

Yet despite these reports, there is no doubt that cultural opposition to interracial marriage diminished in the decades before and after Loving. Several religious authorities openly supported the practice. In 1963, for example, the National Catholic Welfare Conference adopted resolutions deploring "the attitudes and cruel behavior of American society which penalizes and ostracizes those persons who exercise their fundamental human right to free choice of a marital partner by entering into interracial marriages." The United Presbyterian Church wrote a position paper calling for the immediate repeal of all laws banning interracial marriage. Meanwhile, opposition within secular institutions also diminished. In 1963, for example, the United States Air Force ended its practice of asking personnel whether they had married a person of another race during their overseas tours.

However, cultural acceptance of interracial marriage was far from complete in the 1960s, and, even today, interracial marriage is relatively rare. As law professor Rachel Moran notes in her book, Interracial Intimacy, "[a]ntimiscegenation laws played a critical role in defining racial difference, enforcing racial inequality, and establishing the boundaries of proper sexual and marital practices. The Loving decision lifted formal restrictions on intermarriage, but it would be naive to think that the Court could instantly undo the informal assumptions and practices that developed during three centuries of a 'separate but equal' principle in sex, marriage, and family."

Research about patterns of racial intermarriage and racial preference in the selection of intimate partners confirms this conclusion. One recent study documented significant increases in interracial marriage since the 1970s, but also noted trends that reflect Loving's limits. Interracial marriages account for only 6 percent of all marriages in the United States, and African-Americans remain the "least likely of all racial/ethnic minorities to marry whites." The same study concluded that although "the pace of marital assimilation among African Americans proceeded more rapidly over the 1990s than it did in earlier decades, the social boundaries between African Americans and whites nevertheless remain highly rigid and resilient to change." Research on dating preferences also reveals that a significant proportion of the population still prefers to date people of their own race.

The cultural legacy of Loving, like the law's power to transform societal norms more generally, is thus limited.

Part II of this series of columns will consider the legal legacy of Loving v. Virginia. - Ed.

The ideas in this column are fleshed out more fully in John DeWitt Gregory & Joanna Grossman, The Legacy of Loving, 51 Howard Law Journal (forthcoming 2007), an essay written for a symposium honoring the 40^th anniversary of the case.