Skip to Content
Litigation. Collaborative Law. Mediation.

What’s in a Name? For Loving v. Virginia, the Answer Is “Everything”


Richard Loving was a family friend of the Jeters; they both lived in Central Point, Virginia. The Jeters had a daughter, Mildred. She was 11 when she met Richard (who was 17 at the time), and when she was older, she and Richard fell in love. Mildred got pregnant at 18, and she and Richard lived together in the Jeter household until they married a year later, in 1958. They traveled from Virginia to Washington, D.C. for the ceremony – not because they necessarily wanted to go there, but because they had to go there.

Mildred Jeter was Black; Richard Loving was White. And under Virginia’s Racial Integrity Act of 1924, it was illegal for an interracial couple to marry.

The couple returned home to Virginia, but someone made an anonymous tip to the Country Sheriff, who arrested them. They were charged with two counts.

The first was Section 258 of the Virginia Code: Leaving State to evade law.

If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59*, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.

The second was Section 259 of the Virginia Code: Punishment for marriage. “If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”

(* Section 20-59 made “miscegenation” – a particularly terrible phrase for reproduction of two people by different races – a punishable felony.)

The couple pled guilty in 1959, and were sentenced to a year in prison, but the sentence was suspended provided the Lovings left Virginia, and promised not to return together, for at least 25 years. So back to D.C. they went.

In most cases, this would be the end of a particularly heartbreaking story, and another sad chapter in the book of America’s Jim Crow history.

But this is not most cases.

The Lovings fight back

By 1963, the Lovings had enough. They had three small children at home, and sneaking back and forth to Virginia to see their families – sometimes separately, sometimes together – was taking its toll. Then one of their children was hit by a car. Mildred wrote to Attorney General Robert Kennedy and asked for his help; he referred her to the American Civil Liberties Union (ACLU) who took on the case.

Despite the nature of the case, Bernard S. Cohen and Philip J. Hirschkop – the ACLU lawyers – proceeded the way most cases proceed today when an injustice has been committed:

  1. They sought to vacate the case.
  2. When that did not work, they appealed the Circuit Court decision.
  3. When they lost their appeal, they went to the Supreme Court of the United States.

Cohen and Hirschkop wanted to have the original decision reversed by Virginia’s Caroline County Circuit Court. The claimed the ruling was a violation of the Equal Protection Clause under the Fourteenth Amendment, which says that States cannot “deny to any person within its jurisdiction the equal protection of the laws.” The Circuit Court Judge ruled against them.

Cohen and Hirschkop made the same Fourteenth Amendment case to the Virginia Supreme Court of Appeals. That judge also sided with the original ruling.

The attorneys brought the case – Loving v. Virginia – before the Supreme Court. The Commonwealth of Virginia argued that “because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race.” In other words, because both races were treated equally, there was no violation of the Equal Protection Clause.

Except, as it turns out, that was not entirely true. The statute applied to White and Black people, but not to people of other races, making it both racist and unequal. As the opinion from case states:

While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia’s miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve “racial integrity.”

The Court, in the end, appeared to credit Richard Loving’s feelings about his wife: “it is just unfair that I can’t live with her in Virginia.” The Justices ruled for the Lovings, overturned their convictions, and made miscegenation laws illegal throughout the country.

The Court was direct in its opinion, authored by Chief Justice Earl Warren:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Interestingly, the Court decided to go one step further, and recognize that there is something legally special about the institution of marriage. As Warren wrote for the unanimous court: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.” This reasoning also served as the basis for the Supreme Court’s decision in Obergefell v. Hodges, which legalized same-sex marriage in the U.S. Obergefell cited Loving extensively, and used its strong language on the issue of equality in marriage. Only time will tell how many other injustices are overcome because of this case.

Berkman Bottger Newman & Schein LLP is a premier matrimonial law firm serving clients throughout New York City, Westchester, and Bergen County, NJ. To schedule a consultation, please call (212) 466-6015 or will out our contact form.