Today is Loving Day, a holiday that celebrates the anniversary of Loving v Virginia, the Supreme Court case which declared interracial marriage legal across the US. It's shocking to remember that the ruling — which was a blow against institutionalized racism, a step towards greater marriage equality for all, and the basis for last year's award-winning film Loving, about the couple at the center of the legal storm — is only 50 years old, and that many of our parents were alive in an era when states could uphold laws barring people of different races from marrying. But it is true; and the fact that we're only a generation removed from a time when people were locked up, fined and exiled for daring to marry or cohabit with somebody of a different race is one of the most glaring examples of the racism that runs deep throughout our country's foundations.
The story of how childhood sweethearts Mildred and Richard Loving brought about one of the most important US legal rulings of the 20th century is a long one — and one that did not begin with them and their case. "Anti-miscegenation laws" — specific laws that prohibited marriage between people of different races — have a long and brutal history in the US that reaches back to the colonial era; a history that we're still fighting today. In honor of Loving Day, let's be sure that we know our history.
Anti-Miscegenation Laws Were About Depriving African-American People Of Their Rights
The word "miscegenation" itself is a modern invention. It was first used in New York in 1863, and is a weird mix of Latin: "miscere," to mix, and "genus," race or type. Long before that, though, American states, particularly in the South, had rules prohibiting marriage, sex and children between white and black people, for reasons that went beyond simple racism; rather, these laws were part of a concerted program to deprive African-American people of rights and status. The laws also promoted the idea that racial "purity" was a national priority, and that children of mixed racial ancestry weakened the country.
States started to produce laws against "mixing" in the 1660s: Virginia made interracial "fornication" harshly punishable in 1662, and in 1664, Maryland passed the first law outlawing blacks and whites from intermarrying, specifically addressing white women who "forgetful of their free condition and to the disgrace of our Nation do intermarry with Negro slaves." The law outlined that white women who married black men had to become slaves themselves, as would any children born in the marriage.
Legal scholar Professor Julie Novkov explains that the Civil War made these laws worse, particularly in the South, because "the white South had to develop new means of linking whiteness to superior status, rights, and authority in both the legal and social realms. This goal was achieved by establishing a rigid division between white and black through the prevention of any black incursions across a newly defined color line." Mixed-race children were also considered legal "problems" in these areas, because nobody could agree on their "status": were they black or white? Many states agreed that the child of a black female slave was also a slave, even if her father was white, but state laws differed regarding inheritance, titles, and legitimacy. Many states decided to "solve" the issue by banning marriage, sex, cohabitation or some combination of the three between races.
Anti-miscegenation laws, as they were often called, showed up in many states; a report in the 1950s showed that there were a huge range of prohibitions across the US, from laws forbidding African-Americans from marrying Native Americans (Louisiana, Maryland and Oklahoma) to anti-interracial marriage laws included in state constitutions (Alabama, Florida, Mississippi, North & South Carolina and Tennessee). Only nine states never outlawed interracial marriages.
People Began Fighting Laws Against Interracial Marriage In Court In The 19th Century
Loving v Virginia was actually part of a long legacy of people — especially interracial couples themselves — taking on anti-miscegenation laws in court. And these cases began almost a century before, in the 1800s.
The first case dates back to 1878; the Washington Post outlines the history of Andrew Kinney, a black man, and his wife, Mahala Miller, a white woman, who would take their right to have their marriage recognized in Virginia all the way to the Supreme Court. For Kinney and Miller, their challenge ended in failure, with the Court ruling that "there can be no doubt as to the power of every country to make laws regulating the marriage of its own subjects; to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying". And the Supreme Court didn't do any better in 1883, when it ruled in Pace v Alabama that an unmarried interracial couple punished for living in "fornication and adultery" (with two years' imprisonment each) weren't experiencing unequal protection under the law — even though the punishment for same-race couples who lived together was much more lenient.
Cases that fought these marriage bans continued to crop up throughout the 20th century, even as new laws banning marriages between couples of different races continued to pop up. For example, in 1907, the Expatriation Act held that any US woman who married a non-citizen gave up her own US citizenship (no similar law applied to US men who married women who were not US citizens); the Cable Act of 1922 stated that women could retain their citizenship if they married non-citizen men who were eligible for citizenship, which meant that US women who married Asian men (who were not permitted to become US citizens at the time) lost their citizenship. Several Senators attempted to pass constitutional amendments banning interracial marriage completely.
But things started to shift. Even though the US Supreme Court itself refused to hear two challenges to state miscegenation laws in the 1950s, in 1948, California's Supreme Court ruled in Perez v Sharp that the state ban on interracial marriage was unconstitutional, and laws in Florida against interracial cohabitation were thrown out in McLaughlin v Florida in 1964. The stage was set for the big decision; but the road to the Lovings' victory was still long and hard.
In 1958, Police Jailed Richard & Mildred Loving — Just For Being Married
The Lovings just wanted to be married and live in Virginia without being thrown in jail, an incredibly simple request — but their fight for that right was an incredibly difficult one. They'd gone to Washington DC, where interracial marriages were legal, to get married in 1958 — but that sort of "marriage tourism" was seen as a problem: in the early 1910s, both Vermont and Massachusetts had passed laws saying that interracial marriages for people who didn't live in the state were null and void.
The Lovings were arrested one month after their marriage, when police raided their home based on an anonymous call; Richard Loving had his bail set for a whopping $1000 and Mildred Loving was left in jail for several days while several months pregnant. This arrest led to a sentence of exile from the state of Virginia for 25 years on pain of imprisonment. Considering that both Lovings were lifelong Virginians whose families and friends all resided there, it was a cruel judgement.
And the judge's own opinions made things worse. He noted:
That judicial opinion made clear the racist thinking that had supported anti-miscegenation laws for hundreds of years. But the Lovings were still to have their day in the Supreme Court.
The 1967 Victory Took On Centuries Of Racist Law
To give you some impression of what the Lovings were up against, here's the text of the Virginia law they were fighting:
Which is why the Supreme Court verdict was so astonishing and heartening: It was unanimously decided that interracial marriage laws were "obviously an endorsement of the doctrine of White Supremacy." Justice Warren, who wrote the judgement, disapprovingly quoted a case from 1955 in which a Virginia court said that anti-miscegenation laws were designed "to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride."" The whole judgement is worth a read. "JUSTICES UPSET ALL BANS ON INTERRACIAL MARRIAGE," the New York Times trumpeted on the day, and Martin Luther King called it a "real attack on racism".
The Legacy Of Loving V Virginia Is Huge
Two years ago today, the Supreme Court of the United States heard arguments on the historic marriage equality case Obergefell v. Hodges. pic.twitter.com/458JEwAw22— Matsui for Congress (@Matsui4Congress) April 29, 2017
Today, all US citizens have the right to marry a person of any race, though stories of people who still try to oppose interracial marriage are not totally unheard of — like the Justice of the Peace who, in 2009, refused to officiate a wedding between a white woman and a black man in Louisiana, and would later resign instead of facing a federal discrimination lawsuit.
However, one of the biggest legacies of the Loving v Virginia decision was in the fight for marriage equality for the LGBTQ community, in large part because of this bit written at the end of the judgement:
It held what legal scholars believe is a significant role in the case that eventually made same-sex marriage legal across the country in 2015, Obergefell v Hodges. "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were," Justice Kennedy wrote in that decision, in what was probably a deliberate echo of the landmark Loving case.
Half a century isn't that long ago. America's history of discrimination isn't just history; it's right here with us, right now. Today's a good day to remember that.