Loving v. Virginia: The Beginning of the Crusade for Marriage Equality in the United States

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Loving v. Virginia: The Beginning of the Crusade for Marriage Equality in the United States

Historical Paper: Junior Division (2489 words)

Love is a feeling that is of paramount important to the pursuit of happiness; it shouldn’t be limited by law, but rather upheld by it. Mildred and Richard Loving exemplified and worked for this belief. Mildred Jeter, a mixed race woman, and Richard Loving, a white man, married in the District of Columbia and then returned to their small community in Caroline County, Virginia only to be arrested because of their recent marriage. They would not accept such an infringement on their basic civil rights and took their controversial case to the United States Supreme Court. Today, the unanimous decision that the Warren Court handed down in favor of Mildred and Richard Loving has many connotations. In arguing against Virginia’s discriminatory marriage laws, Mildred and Richard Loving left the legacy of starting the longtime crusade for marriage equality in the United States that has culminated with today’s gay marriage Supreme Court cases and the passage of legalized gay marriage laws in over thirty of the states in the Union.  

Throughout the history of the United States, interracial marriage has long been viewed as a social taboo. In the 1660s, Maryland became the first colony to officially illegalize interracial marriage. Other Southern colonies followed, and soon, the regulation of interracial marriage was commonplace in southern law. In fact, only ten states in the union never had a form of an anti-miscegenation law in place. By 1958, 16 of the states with anti-miscegenation laws had repealed these statutes. Prior to the Supreme Court’s ruling in Loving v Virginia, eight states had repealed their statutes. There were still 16 states that still had not repealed their anti-miscegenation laws at the time of the case, and all of these states were relatively Southern in location (“Teaching Tolerance”).

The twentieth century Civil Rights movement was already established prior to the Loving case; in fact, the case was relatively late in the movement. Thirteen years before the case, in 1954, the Warren Court had outlawed school segregation in Brown v Board of Education. In 1963, the march on Washington took place, and in 1964 the 24th Amendment was officially passed, banning poll taxes and other discriminatory voting laws. There were many events advocating for African American rights before the Loving case.

 In 1958, Mildred and Richard Loving got married in the District of Columbia because interracial marriage was illegal in the Virginia. They soon returned to their native community of Caroline County. Four months later, in October, the Lovings were arrested in their home. They were arrested in the dead of night, woken up in the bed that had their marriage certificate proudly displayed above it  (Mildred Loving, 1). Later that month, the Lovings were indicted by a local grand jury for evading Virginia’s ban on interracial marriages enumerated in the Virginia Constitution's sections 20-58 and 20-59 (Warren, “Opinion”).

The local court’s ruling, handed down by Justice Leon Bazile, was that the Lovings would not be able to reside in or visit Virginia together for the next twenty five years. If they abided by this ruling, they would not serve jail time. Justice Bazile's ruling was appallingly prejudiced:  “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 marriage. The fact that he separated the races shows that he did not intend for the races to mix” (Warren, p. 1). Justice Bazile’s ruling highlights the overall racial ignorance influenced by religion found throughout much of Virginia in the late 1950s. His opinion is parallel to many of the modern-day justifications for the illegalization of gay marriage in that it includes references to spiritualism and tradition rather than constitutionality. Many believe that if Justice Bazile’s opinion were not so heavily rooted in slurs and ignorance, the Lovings may never have made it to the Supreme Court (The Loving Story). His justification of the separation of the races in regard to marriage is also similar to anti-gay marriage messages in that it emphasizes the separateness of different races or genders and how it is “unnatural” for them to marry or procreate. Like many of the gay couples in Alabama who were recently denied their rights by Judge Roy Moore, the Lovings experienced extreme prejudice within their local court system. 

With the help of the American Civil Liberties Union, the Lovings tried to appeal Justice Bazile’s decision to Federal District Court. However, the court ruled that marriage laws were a state matter and therefore transferred the matter to the Virginia Supreme Court. Virginia’s Supreme Court handed down a less biased opinion than that of Bazile, but it still underhandedly endorsed white supremacy (The Loving Story). The road of trials experienced by the Lovings within the court system was later reflected in same sex marriage cases and gave struggling gay couples a fellow activist couple to relate to.  

The Lovings then appealed to the US Supreme Court, and, after a long wait, the arguments of their case were heard by the Supreme Court on Monday, April 10, 1967 (Oyez Project). The two lawyers who presented the Lovings’ arguments were Bernard S. Cohen and Phillip J. Hirkschkop. Hirkschkop argued that statutes 20-58 and 20-59 of Virginia state law violated the Equal Protection clause of the Fourteenth Amendment while Cohen argued that they violated the Due Process clause of the Fourteenth Amendment (Oral Arguments). 

Hirkschkop’s argument was very straightforward. He argued that statutes 20-58 and 20-59 violated the Equal Protection Clause because they specifically targeted whites and Negroes, and no other races. He elaborated on this argument when he said that Virginia’s laws “robbed the negro race of its dignity” (Oral Arguments). Many homosexual couples today argue that they feel violated by the marriage regulation laws in their home states, an argument similar to the Hirkschkop's. Hirkschkop also argued that anti-miscegenation laws robbed mixed raced children of many of their rights, explaining this as follows, “It’s more than criminality that’s at point here… the legitimacy of children’s right to inherit land [is at stake here]… and reaching a decision we ask you to reach it on that basis” (Oral Arguments).

The effect on the children because of their parents’ “illegitimate” union can also be used when arguing for gay marriage. Their subsequent offspring would be less able to inherit land from their unbiological parent. But, most importantly, they would be denied the assurance of a stable family structure.  Hirkschkop’s use of this argument shows one of the many ways that the Loving case is parallel to later cases regarding marriage equality.   

 Hirkschkop’s constitutional argument can also be applied to the gay marriage cases of today. The Equal Protection Clause of the Fourteenth Amendment states that no state can deny an individual “the equal protection of the laws.” By denying one of a certain sexual orientation the ability to marry, one is essentially denying them the ability to be equally protected by the laws of a state. As President Barack Obama even recently said, “I think the equal protection clause does grant same-sex marriage” (Huffington Post). By being the first to argue the application of the equal protection clause to marriage rights and having his case upheld by the Supreme Court, Hirkschkop helped to create one of the fundamental arguments for marriage equality. Yet again, an argument used by the Lovings helped to set the stage for later Supreme Court cases.

Cohen’s argument regarding the application of the Due Process Clause also can apply to cases for gay marriage. One of the most compelling points of Cohen’s argument occurred when he rebutted the claim regarding the historical application of the Fourteenth Amendment, “The Fourteenth Amendment is an amendment which grows and can be applied to situations as our knowledge becomes greater” (Oral Arguments). As our acceptance of homosexual unions has become greater, Cohen's argument can be widely applied. Cohen’s and the Lovings’ argument on the growing meaning of the Fourteenth Amendment in regards to marriage is one that is often used as a key argument to justify same sex marriage. 

The Due Process Clause of the Fourteenth Amendment can be used as an argument for the passage of laws granting homosexuals the right to marry.  The clause enumerates how all citizens must be granted the due process of the law, and by banning gay marriage, one is are virtually denying 1.6% of the US population full access to the due process of law (Washington Post). Cohen’s overall argument is extremely applicable to many of the arguments regarding marriage made today. 

In the Loving case, William Mauritani argued as amicus curiae for the reversal of Virginia statues 20-58 and 20-59 on behalf of the Japanese Americans League. He mainly argued that there can be no precise definition of race and therefore the Virginia statutes were invalid, but he also made many statements that are applicable to today’s arguments regarding marriage. During his argument, he stated, “Virginia’s express state policy for its anti-miscegenation laws has been declared to maintain ‘Purity of public morals’” (Oral Arguments). Keeping the traditional values of the US is often argued as a major defense of “traditional” marriage statutes, but by ruling in favor of Mauritani’s argument, the Supreme Court held that constitutionality comes before the preservation of tradition.  

Two of the most significant arguments for repealing same sex marriage bans in state constitutions are the Equal Protection Clause and the Due Process Clause, both of which were widely covered in the arguments presented by the appellants in the Loving case. The Lovings left the legacy of putting forth a case that would present some of the most important Constitutional arguments of our era.  

The defense of the Commonwealth of Virginia was argued by Robert McIlwaine, the Assistant Attorney General of the Commonwealth of Virginia. The core tenants of his arguments were the historical applications of the Fourteenth Amendment and the overall psychological wellbeing of mixed race children compared to their unmixed counterparts. He strongly emphasized that only statutes 20-58 and 20-59 of the Virginia code were being considered, instead of anti-miscegenation statutes as a whole.

McIlwaine argued that there were certain “sociological and psychological evils” that go with interracial marriage (Oral Arguments). Like many opponents of gay marriage today, he argued that less traditional marriages harmed the purity of society and hurt the wellbeing of others. He further stated that interracial couples were inclined to lustfulness (Oral Arguments). This sort of prejudice is rampant among opponents of gay marriage, and therefore McIlwaine’s argument is extremely similar to that of opponents of gay marriage today.  

McIlwaine tried to state that the regulation of marriage was solely a power of the legislative branch (Oral Arguments). This argument has been used by many today to prevent the enforcement of gay marriage rulings handed down to their states, especially in southern states where gay marriage is largely unaccepted. This argument has proved ineffective as the Supreme Court’s ruling on these issues has eventually allowed all to marry in these states. 

 About a month after the arguments were presented, on Monday, June 12, 1967, the Supreme Court unanimously decided that statutes 20-58 and 20-59 of Virginia state law violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment (Oyez Project). The Lovings were now allowed to reside in their native Virginia lawfully. For the first time, the Supreme Court had regulated marriage laws within the states. By doing so, the court set the precedent for later cases regarding marriage and opened the door for the repeal of many marriage statutes within the United States. 

In the last part of Chief Justice Earl Warren's official opinion, he stated, “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” (Opinion, p 4).This truth would be held self-evident in the following years, in which the right to marry would become of paramount importance. The Supreme Court agreed with the argument of the Lovings and that the freedom to marry was one of the most important American civil liberties.  

After the case, the Lovings returned to Caroline County and peacefully raised their family there. Tragically, Richard would died a few years later in an accident caused by a drunk driver. Mildred never remarried. She continued to live a quiet life in Caroline county surrounded by family and friends (The Loving Story).  

Later in life, Mildred wrote a statement on the 40th anniversary of the Loving announcement. In it, she detailed how she believed all should have the right to marry. In the last paragraph of this paper, she truly exhibits just what kind of legacy she and her husband left: “I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about” (Mildred Loving, p. 2)  The Lovings truly believed that they and all US citizens have the right to marry the person they love.

The Lovings were almost anti-leaders. They were quiet and reserved, and kept to themselves throughout most of the Supreme Court proceedings (The Loving Story). But they had the courage to present a controversial case to the Supreme Court, an action that risked the safety of their family and their livelihood. They were willing to do this because they truly did believe in the cause they were fighting for: that all should be able to freely marry the person that they love. Their unwillingness to give up through the many trials they faced in the process of making it to the Supreme Court helped set the precedent for later gay couples. The Lovings’ leadership was truly essential in the success of the freedom to marry movement.

Their case and the Lovings themselves left the legacy of serving as a catalyst for the freedom to marry movement that would become so prevalent in later history. The constitutional arguments used in their case were highly influential, and the Supreme Court’s decision to rule on the issue of marriage set a precedent (cited in U.S. v. Windsor). The Lovings had an extremely fitting name for their legacy—they truly did believe that law should not determine one’s ability to love, but rather support it.  The Lovings were like many of our most influential historical figures; they acted out of necessity for what they believed and had the courage to challenge the social mores of their society in the name of justice and love. Although they are not widely known, they were some of the most influential leaders in the movement to allow all to express their love and marry because of it.










Works Cited

Primary sources

Kennedy, J. “Opinion”. June 26, 2013.

This opinion on the landmark supreme court case United States v. Winsor, in which the supreme court declared Section Three of the Defense of Marriage Act unconstitutional, cited the Loving case on page 16.

Lavender, Paige. “Obama: ‘I Think the Equal Protection Clause Does Guarantee Same Sex Marriage’ In All States.”. October 20, 2014. Huff Post Politics. http://www.huffingtonpost.com/2014/10/20/obama-gay-marriage_n_6014116.html

This source detailed how Obama believed that the equal protection clause today justified gay marriage. This definitely shows how the arguments used in the Loving case are relevant today.

“Loving v. Virginia Oral Arguments”. Monday, April 10, 1967. Oyez Project at IIT Chicago-Kent

College of Law. http://www.oyez.org/cases/1960-1969/1966/1966_395

I used this source to obtain accurate oral arguments and quotes that could be used to draw parallels between gay marriage arguments of today and the arguments used by the lawyers in this case. This was a recording of all the arguments during the case. It included a transcript of all of the arguments that were made. The arguments were around 140 minutes in length. I listened to all of them and took notes along the way.

Loving, Mildred. “Loving for All”. June 12, 2007.

This article was delivered on the 40th anniversary of the Loving v. Virginia announcement and truly exhibited the legacy of the Lovings. Mildred detailed some of her and Alfred’s story and then issued a statement in favor of gay marriage.

Volokh, Eugene. “What Percentage of the US Population is Gay, Lesbian, or Bisexual?”. Washington Post Online. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/15/what-

This source used accurate information regarding the percentage of the US population that is gay or lesbian. This information was obtained from the Centers for Disease Control and contained very unbiased data. Although this source only included one fact, it was a fact that was essential to my argument.

Warren, Earl. “Opinion”. June 12, 1967. Legal Information Institute at Cornell.


There were some quotes in this source that were very relevant today. I used this to obtain quotes for my argument. Warren’s opinion was well worded an provided a timeline of the case and much of the information relevant to the case.

Secondary Sources

Buirski, Nancy. The Loving Story. PBS.

This documentary sparked my interest for the Loving family and their pursuit of marriage. equality. This gave me my first timeline of events and a general outline for the case itself. I rewatched this documentary and took notes to get and keep more information as I watched it.

“Loving v. Virginia”. Oyez Project at IIT Chicago-Kent College of Law. http://www.oyez.org/cases/1960-1969/1966/1966_395

The Oyez Project had concise information about the case. I fact checked all of the information I found here and it was very accurate. I used this for general information and a general timeline of events.

“Teaching Tolerance”. PBS Educational Resources.

This source provided a lot of background information on the interracial marriage laws present

before the Loving case and helped me to understand events in the civil rights movement as a

whole before the Loving case.

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