on the 2nd day of June, 1958, in the said County of Caroline, the 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 afterwards returned to and resided in the County of Caroline, State of Virginia, cohabiting as man and wife, against the peace and dignity of the Commonwealth.
Judge Leon Bazile gave them a sentence of 1 year in jail, to be suspended for 25 years if the two of them left Virginia and didn't return at the same time during that entire period. After almost five years, they got fed up with exile and filed to get the sentence vacated on the following grounds:
A. Said sentence constitutes cruel and unusual punishment, within the meaning of Section 9 of the Virginia Constitution.
B. Said sentence exceeds the reasonable period of suspension permitted by Sec. 53-272 of the Code of Va., 1950, as amended.
C. Said sentence constitutes banishment, and is thus a violation of constitutional due process of law.
D. Said sentence is improper because it is based on a statute which is unconstitutional on its face, in that it denies the defendants the equal protection of the laws and denies the right of marriage which is a fundamental right of free men, in violation of Section 1 of the Virginia Constitution, and the 14th Amendment of the Federal Constitution.
E. Said statute and said sentence are unconstitutional burdens upon interstate commerce.
F. Such sentence has worked undue hardship upon the defendants by preventing them from together visiting their families from time to time as may be desireable and necessary, to promote domestic tranquility.
Bazile handed down his opinion, dismissing the Lovings' claims and upholding his previous ruling.
It is next contended that these statutes are unconstitutional in violation of Section 1 of the Virginia Constitution and the 14th Amendment of the U. S. Constitution.
There is nothing in Section 1 of the Constitution of Virginia which relates to this matter, nor is there anything in the 14th Amendment which has anything to do with the subject here under consideration.
Marriage is a subject which belongs to the exclusive control of the States.
In State v. Gibson, 16 Ind. 180, 10 Am. Rep. 42 a statute prohibiting the intermarriage of negroes and white persons was held not to violate any provisions of the 14th Amendment or Civil Rights Laws in the course of a well-reasoned and well-supported discussion of the powers retained by and inherent in the States under the Constitution said:
"* * * In this State marriage is treated as a civil contract, but it is more than a mere civil contract, it is a public institution established by God himself, is recognized in all Christian and civilized nations and is essential to the peace, happiness, and well being of society. * * *"
"* * * The right in the States to control, to guard, protect and preserve this God-giving, civilizing and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the States suffer or permit any interference therewith. If the Federal Government can determine who may marry in a State, there is no limit to its power * * *" (36 Ind. at p. 402-3)
So we've got the "marriage is a Christian, god-given institution" and the slippery-slope of "who knows where it'll end!"
The parties were guilty of a most serious crime. As said by the Court in Kinney's Case 30 Gratt 865: "It was a marriage prohibited and declared absolutely void. It was contrary to the declared public law, founded upon motives of public policy--a public policy affirmed for more than a Century, and one upon which social order, public morality and the best interests of both races depend. This unmistakable policy of the legislature founded, I think, on wisdom and the moral development of both races, has been shown by not only declaring marriages between whites and negroes absolutely void, but by prohibiting and punishing such unnatural alliances with severe penalties. The laws enacted to further and uphold this declared policy would be futile and a dead letter if in fraud of these salutary [fol. 14] enactments, both races might, by stepping across any imaginary line bid defiance to the law by immediately returning and insisting that the marriage celebrated in another state or county should be recognized as lawful, though denounced by the public law of the domicile as unlawful and absolutely void."
And of course, there's Bazile's infamous words:
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 showes that he did not intend for the races to mix.
The Lovings appealed, and the Supreme Court of Virginia again upheld the constitutionality of anti-miscegenation laws.
The problem here is not new to this court no to other courts, both state and federal, throughout the country. The question was most recently before this court in 1955, in Naim v. Naim, 197 Va. 80 ... .
In the Naim case, the Virginia statutes relating to miscegenetic marriages were fully investigated and their own constitutionality was upheld. There, it was pointed out that more than one-half of the states then had miscegenation statutes and that, in spite of numerous attacks in both state and federal courts, no court, save one, had held such statutes unconstitutional. The lone exception, it was noted, [fol. 22] was the California Supreme Court which declared the California miscegenation statutes unconstitutional in Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (sub nom. Perez v. Lippold).
...
The defendants say that the Naim opinion relied upon Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 S. Ct. 1138, but argue that the United States Supreme Court reversed the Plessy decision in Brown v. Board of Education, 347 U. S. 483, 98 L. ed. 873, 74 S. Ct. 686.
...
In the Brown case, decided in 1954, the Supreme Court ruled "that in the field of public education the doctrine of 'separate but equal' has no place" and that "Any language in Plessy v. Ferguson contrary to this finding is rejected." 98 L. ed., at p. 881.
The Plessy case was cited in the Naim opinion to show that the United States Supreme Court had made no decision at variance with an earlier holding by the Tenth Circuit Court of Appeals in Stevens v. United States, 146 F. 2d 120, that "a state is empowered to forbid marriages between persons of African descent and persons of other races or descents. Such a statute does not contravene the Fourteenth Amendment."
The Naim opinion contained a quotation from the Plessy case that "Laws forbidding the intermarriage of the two races . . . have been universally recognized as within the police power of the state." Nothing was said in the Brown case which detracted in any way from the effect of the language quoted from the Plessy opinion. As Mr. Justice Buchanan pointed out in the Naim opinion, the holding in [fol. 24] the Brown case, that the opportunity to acquire an education "is a right which must be made available to all on equal terms," 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."
Later, they seemed concerned that ruling in favor of the defendants would count as "judicial activism":
The defendants also refer us to a number of texts dealing with the sociological, biological and anthropological aspects of the question of interracial marriages to support their argument that the Naim decision is erroneous and that such marriages should not be forbidden by law.
A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate.
I don't know how much merit that claim has, but I do remember that many people complained bitterly about the decision in Brown v. Board of Education because it used sociological data to help form its decision, so maybe the court wanted to avoid a similar backlash. The state Supreme Court obviously didn't declare the statutes unconstitutional, but they did agree that the penalty the Lovings were facing was too harsh and ordered it vacated and remanded to give them a more reasonable sentence. The Lovings appealed again, and eventually got to the Supreme Court.
I'll quote here from the "Brief on Behalf of Appellee", i.e., Virginia.
Counsel for appellee submit that the constitutional issue tendered by the instant appeal has been so thoroughly settled against the position of appellants, and settled by such an exhaustive array of judicial authority, as to make it necessary for this Court to rewrite or amend the Fourteenth Amendment to reverse the judgment of the Supreme Court of Appeals of Virginia.
Initially in this connection, an analysis of the legislative history of the Fourteenth Amendment conclusively establishes the clear understanding--both of the legislators who framed and adopted the Amendment and the legislatures which ratified it--that the Fourteenth Amendment had no application whatever to the anti-miscegenation statutes of the various States and did not interfere in any way with the power of the States to adopt such statutes. The precise question was specifically considered by the framers of the Amendment, and a clear intent to exclude such statutes from the scope of the Fourteenth Amendment was repeatedly made manifest.
...
Since the constitutional duty of this Court is "to construe, not to rewrite or amend" the Constitution--a duty which requires this Court to read the Fourteenth Amendment "to effectuate the intent and purposes of the Framers"--counsel for appellee assert that, as a matter of law, the Fourteenth Amendment has no applicability to the anti-miscegenation statutes of the various States and does not circumscribe to any degree the power of the States to prevent interracial marriages. See, Bell v. Maryland, supra, at 288-289.
Secondly, counsel for appellee submit that to give effect to the legislative history of the Fourteenth Amendment is to obviate inappropriate judicial inquiry into the wisdom or desirability of a State policy preventing interracial alliances. Under well settled constitutional doctrine, such an inquiry into evidence of a scientific nature tending to support or undermine a legislative determination of the wisdom or desirability of such a policy is clearly impermissible. ...
If this Court (erroneously, we contend) should undertake such an inquiry, it would quickly find itself mired in a veritable Serbonian bog of conflicting scientific opinion upon the effects of interracial marriage, and the desirability of preventing such alliances, from the physical, biological, genetic, anthropological, cultural, psychological and sociological point of view. The available scientific materials are sufficient to support the validity of the challenged Virginia statutes whether the constitutional standard be deemed to require appellants to demonstrate that those statutes are arbitrary, capricious and unreasonable or to require the State to show a compelling interest in the continuation of its policy prohibiting interracial marriages. In such a situation it is the exclusive province of the Legislature of each State to make the determination for its citizens as to the desirability of a policy of permitting or preventing such alliances--a province which the judiciary may not constitutionally invade.
Again with the concerns about "judicial activism."
The Fourteenth Amendment grew out of the Civil Rights Act of 1866 and its forerunner, the Freedmen's Bureau Bill. It therefore becomes necessary that the debates in the 1st session of the 39th Congress (1865-1866) be researched in order to determine the meaning of the pertinent language of the Fourteenth Amendment as understood by its authors and its proponents.
The first material occurrence was the introduction of the supplemental Freedmen's Bureau Bill.
...
The seventh section contained language which, by way of the Civil Rights Act, subsequently became a part of the Fourteenth Amendment. It provided, in part, that if, because of any state or local law, custom or prejudice:". . . any of the civil rights of immunities belonging to white persons, including the right to make and enforce contracts ... and to have full and equal benefit of all laws and proceedings for the security of person and estate, are refused or denied to negroes . . . on account of race . . . it shall be the duty of the President of the United States, through the Commissioner, to extend military protection . . . over all cases affecting such persons so discriminated against."
Section 8 made it a misdemeanor for any person to subject any other person on account of color:" . . . to the deprivation of any civil right secured to white persons, or to any different punishment. . . ."
Senator Thomas A. Hendricks of Indiana, an opponent of the Bill, expressed the fear in the Senate debates that the "civil rights or immunities" clause in the seventh section would nullify many salutary laws of Indiana, including an Indiana constitutional provision which provided that no Negro man should be allowed to intermarry with a white woman. He then said:"Marriage is a civil contract, and to marry according to one's choice is a civil right. Suppose a State shall deny the right of amalgamation, the right of a negro man to intermarry with a white woman, then that negro may be taken under the military protection of the Government; and what does that mean? . . . Does it mean that this military power shall enforce his civil right, without respect to the prohibition of the local law? In other words, if the law of Indiana, as it does, prohibits under heavy penalty the marriage, of a negro with a white woman, may it be said a civil right is denied him which is enjoyed by all white men, to marry according to their choice; and if it is denied, the military protection of the colored gentlemen is assumed, and what is the result of it all? I suppose they are then to be married in the camp of the protecting officer without regard to the State laws. . . .
Senator Lyman Trumbull of Illinois, who had introduced the Bill and was its manager, made it clear that there was no intention to nullify the anti-miscegenation statutes or constitutional requirements of the various states or to restrict such future legislation as to miscegenation. On that point he said:". . . But, says the Senator from Indiana, we have laws in Indiana prohibiting black people from marrying whites, and you are going to disregard these laws? Are our laws enacted for the purpose of preventing amalgamation to be disregarded, and is a man to be punished because he undertakes to enforce them? I beg the Senator from Indiana to read the bill. One of its objects is to secure the same civil rights and subject to the same punishments persons of all races and colors. How does this interfere with the law of Indiana preventing marriages between whites and blacks? Are not both races treated alike by the law of Indiana? Does not the law make it just as much a crime for a white man to marry a black woman as for a black woman to marry a white man, and vice versa? I presume there is no discrimination in this respect, and therefore your law forbidding marriages between whites and blacks operates alike on both races. This bill does not interfere with it. If the negro is denied the right to marry a white person, the white person is equally, denied the right to marry the negro. I see no discrimination against either in this respect that does not apply to both. Make the penalty the same on all classes of people for the same offense, and then no one can complain." (Italics supplied.)
A week later Senator Garrett Davis from Kentucky likewise expressed the fear that the language of Section 7 was broad enough to strike down the anti-miscegenation laws of the State of Kentucky.
Senator Trumbull replied:" . . . The Senator says the laws of Kentucky forbid a white man or woman marrying a negro, and that these laws of Kentucky are to exist forever; that severe penalties are imposed in the State of Kentucky against amalgamation between the white and black races. . . . "But, sir, it is a misrepresentation of this bill to say that it interferes with those laws. I answered that argument the other day when it was presented by the Senator from Indiana. The bill provides for dealing out the same punishment to people of every color and every race; and if the law of Kentucky forbids the white man to marry the black woman I presume it equally forbids the black woman to marry the white man, and the punishment is alike upon each. All this bill provides for is that there shall be no discriminations in punishments on account of color; and unless the Senator from Kentucky wants to punish the negro more severely for marrying a white person than a white for marrying a negro, the bill will not interfere with his law." (Italics supplied.)
The supplemental bill passed the Senate on January 25 1866, by a vote of 37 to 10, three absent.
And on it goes. Pages 9-31 of the brief--almost half of the 52-page document--were devoted to the history of the 14th Amendment. At the end they finally devoted time to justifying the statutes being challenged:
Reference to that decision [Perez v. Sharp] reveals that the justices on both sides of this question could make wide appeal to a vast body of scientific materials to support their respective positions. The scientific authorities cited in the dissenting opinion in that case, as well as the utilization of such authorities by the dissenting Justices, is of such pertinence to the position taken by the Commonwealth in the case at bar as to merit extended quotation in the body of this brief (198 P. (2d) at 33-45)
And they quote extensively from Justice Shenk's dissent in Perez v. Sharp. After that, they try quoting something a bit more recent.
Moreover, it appears that there has been no diminution in the flood of scientific materials on this subject. See, Gates: Heredity in Man (1929); Gates: Genetics, Taxonomy, and the Races of Man, 68 Journal of the Elisha Mitchell Scientific Society No. 2, (1952); Keith: A New Theory of Human Evolution (1949); Darlington: The Facts of Life (1956); Mayr: Animal Species and Evolution (1963); Coon: The Origin of Races (1962); The Race Concept: Results of an Inquiry (UNESCO, 1952); Ingle: Race Differences and the Future, Science, Vol. 146. No. 3642, (1964); Ingle: Race, Science, and Social Policy, Science, Vol. 146, No. 3651 (1964). So far as counsel for the Commonwealth have been able to ascertain the most recent scientific treatise upon the propriety or desirability of interracial marriages from the psychological and sociological point of view is that of Dr. Albert I. Gordon, entitled Intermarriage--Interfaith Interracial, Interethnic published in 1964. This work has been characterized as the "definitive book on intermarriage" by Dr. Gordon W. Allport, Professor of Psychology at Harvard University, and as "the most careful, up-to-date, methodologically sound study of intermarriage in North America that exists..." by Dr. Herbert Gezork, President of the Andover Newton Theological School.
Typical of the findings, observations and conclusions set forth in this most recent treatise upon the subject of interracial marriages are the following:[PP. 334-335]
"Inasmuch as we have already noted the higher rate of divorce among the intermarried, it is not proper to ask 'Shall we then add to the number of children who become the victims of their intermarried parents?' If there is any possibility that this is likely to occur--and the evidence certainly points in that direction--it would seem that our obligation to children should tend to reduce the number of such marriages.* * *
[P. 357]
"The argument that persons who oppose intermarriage--religious or racial--are per se 'prejudiced,' may be true of some persons; true, in degree, about others; and yet be completely untrue about still others. The desire to perpetuate one's own religion or to prevent its assimilation is understandable and reasonable. If it were necessary to 'prove' that each of us is entitled to life only because we possess some demonstrably unique or special talent or gift of mind or body, our society would be decimated in short order. Just as no individual needs to explain his desire to live, so it would seem to me that neither races of man nor religious or ethnic groups need offer apologies for their desire to perpetuate themselves. I believe that the tendency to classify all persons who oppose intermarriage as 'prejudiced' is, in itself, a prejudice.* * *
[PP. 367-368]
"It is my conviction that intermarriage is definitely inadvisable. It places a greater stress and strain upon marriage than is ordinarily true when persons of similar religious views are married. We need not guess about this. In every case of interfaith marriage that we have examined the facts about the greater strains involved have come to the fore. The fact that divorce and separation rates are higher in these interfaith marriages serves also to support this view.* * *
"Intermarriages are wrong too because they are often based on the mistaken premise that, in this way, universalism and human brotherhood is assured. Not only has this theory not been proved--it has rather, been exploded. Two nothings are still nothing. A plus and a minus simply cancel each other out. Nothing of any significance is gained by such a marriage. If all humans on a given day gave up all their differences (an utterly fantastic idea) we might have half a chance. But in the world as we know it such an idea is impracticable if not absurd.* * *
"As I view it, intermarriage constitutes a threat to society and is not necessarily a promise of a brighter day to come.* * *
[P. 370]
"Intermarriage, as I view it, holds no promise for a bright and happy future for individuals or for mankind. The evidence, as I view it, is clear on this point. The facts speak for themselves.* * *
[PP. 372-373]
"The statistical evidence incorporated in this study makes it clear that the 'odds' do not favor intermarriages, in that almost two to four times as many intermarriages as intramarriages end in divorce, separation or annulment. This is a highly significant fact. It is objective and utterly free from emotion-inducing factors. It ought, therefore, to be considered and weighed most carefully.* * *
"I lay no claim to omniscience or infallibility; hence, I cannot claim that the views expressed here are correct in every detail and meet every situation. Both years of study of intermarriage as a concern of the social scientist, and years of intimate personal contact with people who have come to me asking for counsel and assistance with marital problems, make me feel that I may be of assistance to others who contemplate intermarriage. Perhaps our society will change so radically in its views and attitudes within the next decade that my views, too, will change. However, I doubt that such a condition is likely to occur. So for the present these views are, I think, worthy of careful consideration and study."
North Carolina submitted a scant, six-page amicus curiae brief on behalf of Virginia. Its conclusion is mildly interesting:
We do not enter into the scientific realm on this question. There is no equalitarianism in the field of biology, anthropology and geneticism. There is no certitude or concrete exactness in this field. These so-called sciences have not yet reached the position or status of the exact sciences one hundred and fifty years ago. Usually the major emphasis in such books or discussions centers around the alleged sex jealousies of the white man and the alleged preference of the Negro man for white women. You can select books and treatises both pro and can on this question; one thing is sure and that is neither cranial measurements, intelligence quotients nor statistical averages will ever settle the question. This field is like expert witnesses in that you pay your money and take your choice. If a state feels like the life of its people is better protected by a policy of racial integrity as to both races, or for any other race for that matter, then it has the right to legislate in such field. The fact that the state's conclusions may differ from the conclusions of other groups should not affect the matter unless minority groups are entitled to preferential constitutional privileges contrary to the judgment of the majority.
Whereas Virginia was fairly careful not to make the claim that blacks were inferior to whites, North Carolina seemed to consider that an open question and reasonable assumption. And of course there's the standard "no special rights" blather.
Oral arguments pretty much rehashed what was written in the briefs; if you're interested or bored or both, you can download an mp3 of them here. One interesting point is around 78 minutes into the arguments, Mr. McIlwaine propounded on behalf of Virginia:
We start with the proposition, on this connection, that it is the family which constitutes the structural element of society, and that marriage is the legal basis upon which families are formed. Consequently this court has held in numerous decisions over the years that society is structured on the institution of marriage; that it has more to do with the welfare and civilizations of a people than any other institutions; and that out of the fruits of marriage spring relationships and responsibilities with which the state is necessarily required to deal. Text writers and judicial writers agree that the state has a natural, direct and vital interest in maximizing the number of successful marriages which lead to stable homes and families, and in minimizing those which do not. It is clear from the most recent available evidence on the psychosociological aspect of this question that intermarried families are subjected to much greater pressures and problems than are those of the intramarried, and that the state's prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage, or the proscription of minimum ages at which people may marry, and the prevention of the marriage of people who are mentally incompetent."Marriage is important! That's why we have to keep it out of the hands of those
But, well... you know how the story ends.
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