'Illicit Cohabitation': Listen To 6 Stunning Moments From Loving V. Virginia | KERA News

'Illicit Cohabitation': Listen To 6 Stunning Moments From Loving V. Virginia

Jun 12, 2017
Originally published on June 12, 2017 11:46 am

"Illicit cohabitation."

"Psychological evils."

"Racial integrity."

It's difficult to imagine how much the country's language around race and interracial marriage has changed in the past half century.

But just 50 years ago, interracial marriage was prohibited in Virginia and 15 other states.

The Supreme Court's landmark ruling in Loving v. Virginia declared unconstitutional a Virginia law prohibiting mixed-race marriage. The ruling also legalized interracial marriage in every state.

Bernard Cohen and Philip Hirschkop, two young ACLU lawyers at the time, took the case of the Lovings — a black and Native American woman named Mildred and Richard Loving, her white husband — all the way to the high court.

Listen to six standout moments from the trial below, transcribed by the Supreme Court in 1967:

1. Cohen and Hirschkop asked the court to look closely at whether the Virginia law violated the equal protection clause of the 14th Amendment. If the framers had intended to exclude anti-miscegenation status in the 14th Amendment, which assures equal protection under the law, they argued that it would have been easy for them to write a phrase excluding interracial marriage, but they didn't Cohen argued:

"The language was broad, the language was sweeping. The language meant to include equal protection for Negroes that was at the very heart of it and that equal protection included the right to marry as any other human being had the right to marry subject to only the same limitations."

2. Cohen forcefully, but calmly argued that the Lovings and their children, just like any other family, had the right to feel protected under the law.

Five weeks after the Lovings' wedding on July 14, cops led by the sheriff stormed into their house at 2 in the morning. The young couple was arrested and jailed for violating the state's "Racial Integrity Act." The Lovings were sentenced to a year in prison, but a judge set them free under the condition they leave Virginia.

Cohen argued that the state was ignoring a very important point:

"And that is 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 for illicit co-habitation."

3. Cohen's co-counsel Hirschkop, only three years after graduating with Georgetown Law, methodically pointed out Virginia's long history of discriminatory laws aimed to prevent race-mixing. The state's first ban of interracial marriage goes back to 1691, Hirschkop reminded the justices. And he argued that in the 1920s, immigration laws were being passed while "the Klan rode openly in the south and that's when they talked about the bastardy of the races, and miscegenation and amalgamation and race suicide became the watch word."

"And John Powell, a man we singled out in our brief, a noted pianist of his day, started taking up the Darwin Theory and perverting it through the theory of eugenics, the theory that applied to animals, to pigs, and hogs, and cattle.

They started applying it to human beings.

In taking Darwinism that the Negro race was a stepping stone, was that lost men we've always been looking for between the white man and the abominable snowman whoever else, they went back.

And that's when the Anglo-Saxon Club was formed in the State of Virginia and that's when Virginia Legislature passed our present body of law.

They took all these old laws.

These antebellum and postbellum laws and they put them together into what we presently have."

4. Hirschkop also argued that Virginia's anti-miscegenation laws rob people of their integrity and of their freedom and that Virginia's "not concerned with racial integrity of the Negro race, only with the white race."

"They were not concerned with the racial integrity but racial supremacy of the white race," he argued.

The young lawyer relentlessly argued that the central purpose of the 14th Amendment lies on protecting citizenship rights – equally - regardless of color.

"We fail to see how any reasonable man can but conclude that these laws are slavery laws were incepted to keep slaves in their place, were prolonged to keep the slaves in their place, and in truth, the Virginia law still view the Negro race as a slave race, that these are the most odious laws to come before the court. They robbed the Negro race of its dignity and only a decision which will reach the full body of these laws in the State of Virginia will change that. We ask that the Court consider the full spectrum of these laws and not just the criminality, because it's more than a criminality that's at point here, that the legitimacy of children right to inherent land, the many, many rights, and in reaching a decision, we ask you reach on that basis."

Thank you Your Honors.

5. But Virginia's Assistant Attorney General R.D. McIlwaine III argued that the Civil Rights Act of 1866, which preceded the 14th Amendment, was not intended to offer protection to biracial married couples.

McIlwaine says that the state's anti-miscegenation laws were rational and that Virginia had the right to adopt them.

McIlwaine forcefully argued that Virginia's anti-miscegenation law did not violate the 14th Amendment and offered Justices an alternative contention to make his point:

"If the Fourteenth Amendment be deemed to apply to State anti-miscegenation statutes, then these statutes serve a legitimate, legislative objective of preventing a sociological, psychological evils which attend interracial marriages, and is a — an expression, a rational expression of a policy which Virginia has a right to adopt."

6. McIlwaine argued about the importance of the institution of marriage and the interest of the state in ensuring successful and stable marriages, homes and families. Chief Justice Earl Warren questioned McIlwaine's argument, but the assistant attorney general repeatedly pointed out the disadvantage of mixed-race marriages

MCILWAINE: "Intermarried families are subjected to much greater pressures and problems than those of the intra-married 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 prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.

W: There are people who have the same — same feeling about and interreligious marriages, but because that maybe true, would you think that the State could prohibit people from having interreligious marriages?

M: I think that the evidence in support of the prohibition of interracial marriage is stronger than that for the prohibition of interreligious marriage.

But I think that the --

W: How can you — how can you say that?

M: Well, we say that principally --

W: Because — because you believe that?

M: No, sir.

We say it principally on the basis of the authority which we have cited in our brief, particularly, this one volume, which we have cited from copiously in our brief which is --

Earl Warren

Who wrote that?

R. D. McIlwaine, III

This is a book by Dr. Albert I. Gordon, Your Honor, which is characterized as the definitive book by Dr. Albert I. Gordon, which is characterized as the definitive book on intermarriage, and has the most careful, up to date, methodologically sound study of intermarriage in North America that exists.

It is entitled "Intermarriage, Interfaith, Interracial, Inter-ethnic."

Now, our proposition on the psycho-sociological aspects of this question is bottomed almost exclusively on this particular volume."

On June 12, 1967, the U.S. Supreme Court justices ruled in the Lovings' favor. The unanimous decision upheld that distinctions drawn based on race were not constitutional. The court's decision made it clear that Virginia's anti-miscegenation law violated the Equal Protection Clause of the 14th Amendment.

The landmark civil rights decision declared prohibitions on interracial marriage unconstitutional in the nation. Chief Justice Earl Warren wrote the opinion for the court; he wrote that marriage is a basic civil right and to deny this right on a basis of color is "directly subversive of the principle of equality at the heart of the Fourteenth Amendment" and seizes all citizens "liberty without due process of law."

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