Background: Antimiscegenation Statutes
Antimiscegenation statutes were state laws prohibiting interracial sex, cohabitation, and/or marriage.
The antimiscegenation statutes “arose as an incident to slavery and [had] been common in Virginia since the colonial period.” Loving, 388 U.S. at 6. The statutory scheme in place only fifty years ago dated “from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War.” Id.
In addition to Virginia, fifteen other states had antimiscegenation statutes that prohibited and punished mixed-race marriages at the time of the Supreme Court’s landmark decision in Loving v. Virginia. Id. In 1958, however, when the Loving case first began, almost half the country had an antimiscegenation statute on the books. Douglas Martin, Mildred Loving, Who Battled Ban on Mixed-Race Marriage, Dies at 68, N.Y. Times, May 6, 2008, available at http://www.nytimes.com/2008/05/06/us/06loving.html.
Loving v. Commonwealth: Criminal Action in Virginia
The antimiscegenation statutes did not stop Virginia citizens Richard Perry Loving, a white man, and Mildred Jeter Loving, an African American woman, from getting married in June of 1958 in Washington, D.C. Five weeks after their marriage, the county sheriff and two deputies, acting on a tip, interrupted their sleep in their Virginia home in the early morning of July 11, 1958. Upon confirming that they were indeed husband and wife, Mr. Loving spent a night in jail, and his wife spent several more for violating Virginia’s antimiscegenation statute. Martin, Mildred Loving.
On January 6, 1959, the Lovings pleaded guilty to an indictment that charged the two as follows:
[T]he said Richard Perry Loving being a White person and the said Mildred Delores Jeter being a Colored person, did unlawfully and feloniously go out of the State of Virginia, for the purpose of being married and with the intention of returning to the State of Virginia and were married out of the State of Virginia, to-wit, in the District of Columbia on June 2, 1958, and afterward returned to and resided in the County of Caroline, State of Virginia, cohabiting as man and wife.
Loving v. Commonwealth, 206 Va. 924, 925 (Va. 1966), overruled by Loving, 388 U.S. 1.
The language of the indictment alone is startling, but the sentence the two received is truly beyond belief. The trial court fixed their punishment at one year in jail but suspended the sentence “for a period of twenty-five years upon the provision that both accused leave Caroline County and the state of Virginia at once and do not return together or at the same time to said county and state for a period of twenty-five years.” Id.In so ruling, the trial court stated thus:
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.
Loving, 388 U.S. at 3.
The Lovings filed a federal class action in the Eastern District of Virginia on October 28, 1964, 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.” Id. The federal court continued the action so that the Virginia Supreme Court could consider the case.
The Virginia Supreme Court upheld the Lovings’ conviction and the antimiscegenation laws as constitutional under both the U.S. and Virginia constitutions. The Virginia Supreme Court relied on an opinion that cited as support Plessy v. Ferguson, 163 U.S. 537 (1896), the case famously overturned in Brown v. Board of Education, 347 U.S. 483 (1954). Loving, 206 Va. at 926–27. In doing so, the Virginia Supreme Court noted while the holding in Brown established “that the opportunity to acquire an education ‘is a right which must be made available to all on equal terms,’ [it] cannot support a claim for the intermarriage of the races or that such intermarriage is a ‘right which must be made available to all on equal terms.’” Id. at 927 (quoting Naim v. Naim, 197 Va. 80, 87 (Va. 1955)). The Virginia Supreme Court also relied on Pace v. State, 106 U.S. 583, 585 (1883),which upheld the constitutionality of an Alabama statute that imposed an increased penalty for adultery committed by a mixed-race couple. In holding antimiscegenation statutes constitutional under the Virginia and U.S. constitutions, the Virginia Supreme Court relied on this precedent and the fact that no other jurisdiction had found antimiscegenation clauses unconstitutional.
The Virginia Supreme Court’s ruling on the Lovings’ sentence proved equally shocking. The Virginia Supreme Court found that the sentence did not constitute an illegal banishment of the Lovings from Virginia. Loving, 206 Va. at 930. The court pointed out that “[a]lthough the defendants were, by the terms of the suspended sentences, ordered to leave the state, their sentences did not technically constitute banishment because they were permitted to return to the state, provided they did not return together or at the same time.” Id. That said, the court did reverse the suspended sentence because it found the requirement that the two not return to Virginia was more than required to ensure “that the defendants not again cohabit as man and wife in [Virginia.]” Id. at 931.
The Virginia Supreme Court remanded the case to the trial court for further proceedings on the sentencing.
Loving v. Virginia: Reversal by the U.S. Supreme Court
The U.S. Supreme Court, however, never let the Virginia trial court make any further determination.
The Court began its reversal of the conviction by acknowledging that “marriage is a social relation subject to the State’s police power” but stating that this power must conform within “the commands of the Fourteenth Amendment.” Loving, 388 U.S. at 8.
The Commonwealth agreed with this basic assertion but argued
that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree.
Id. Put another way, as long as the punishments do not change based on the perpetrator's race, the law conforms with the Fourteenth Amendment. Assuming the validity of this argument, the Commonwealth argued that a rational basis existed for this racially based law. Id.
The Supreme Court quickly disposed of this misapplication of the Fourteenth Amendment. Id. at 9. In doing so, the Court noted that the statutes contain racial classifications “and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” Id. The Court continued thus:
Over the years, this court has consistently repudiated “distinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.
Id. at 11 (internal citations and brackets omitted). The Court held that the antimiscegenation statute had no “legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” Id. at 12. The Court held that the statutes violated the Equal Protection Clause and also found marriage to be a fundamental right under the Due Process Clause of the Fourteenth Amendment. Id. at 11–12 (“To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive to 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 Court reversed the convictions in an 8–1–0 decision, with Justice Potter Stewart concurring in the result because he believed 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.” Id. at 13 (Stewart, J., concurring).
Mildred Loving died at the age of 68 on May 2, 2008, in her home in Central Point, Virginia, from apparent pneumonia. Richard Loving died in a car accident in 1975. Martin, Mildred Loving.
Lessons learned from Loving, however, continue to reverberate to this day. As expected, the decision in Loving played a prominent role in Obergefell v. Hughes, 135 S. Ct. 2584 (2015), the case invalidating bans on same-sex marriage. But one does not have to look too deeply into this story to find another perhaps less obvious lesson—a lesson about the importance of the Constitution’s promise to provide equal protection to all regardless of the state’s alleged justifications in support of suspect criminal statutes.
Mark A. Flores is a litigation associate at Haynes and Boone, LLP, in Fort Worth, Texas.