June 12, 1967 – The Supreme Court Decided Loving v. Virginia

Loving v. Virginia, 388 U.S. 1 (1967) was a landmark civil rights case in which the United States Supreme Court declared Virginia’s anti-miscegenation statutes unconstitutional, overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States. Chief Justice Earl Warren, writing for the Court, declared that statutes preventing marriage solely on the basis of racial classification violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

At the time of this decision, Virginia was one of 16 states prohibiting and punishing marriages on the basis of racial classification. According to one Virginia statute, a “white person” was absolutely prohibited from marrying anyone other than another “white person.” The license-issuing official had to be satisfied that applicants’ statements as to their race were correct, and certificates of “racial composition” had to be kept by both state and local registrars.

In June, 1958, two Virginia residents, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. Shortly thereafter, they returned to Virginia and took up residence. In October 1958 a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. Apparently the irony of their married name did not occur to their accusers.


The Lovings were convicted and sentenced to one year in jail; however, the trial judge suspended the sentence for 25 years on the condition that the Lovings leave the state. Intuiting the mind of the Creator, as well as proving he never read any science, the judge wrote:

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.”

After their convictions, the Lovings took up residence in the District of Columbia. In 1964, frustrated by their inability to travel together to visit their families in Virginia, Mildred Loving wrote in protest to Attorney General Robert F. Kennedy. Kennedy referred the matter to the American Civil Liberties Union.

The ACLU filed a motion on the Lovings’ behalf to vacate the judgment and set aside the sentence on the ground that the statute, the “Racial Integrity Act of 1924,” violated the Fourteenth Amendment. Before the motion was decided, the Lovings also filed a class action in federal court to have the Virginia statutory scheme declared unconstitutional. This began a series of procedures and appeals that ultimately reached the Supreme Court.

In the Supreme Court, the state of Virginia referred to its 1965 decision in the Virginia Supreme Court of Appeals in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as providing the reasons supporting the validity of these laws. In Naim, the court – in 1965! – concluded that the State’s legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride.”

The State of Virginia also argued that the Equal Protection Clause of the Fourteenth Amendment meant only that punishment must be applied equally to different racial classifications. It cited discussions in Congress at the time the Amendment was adopted to indicate that the framers would have condoned the statutes. The State said further that even if the clause were applicable, the Court should defer to the wisdom of the state legislature.

The Court rejected the State’s argument about the inapplicability of the Equal Protection Clause. It reasoned that although the amendment may not have been thought to proscribe a ban on miscegenation at the time it was passed, it had taken on a “broader, organic purpose.”

Justice Earl Warren

Justice Earl Warren

Justice Warren ruled, “The Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.” He further held:

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ … At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny….”

In addition, and somewhat gratuitously, Justice Warren found that the Virginia statures also violated the amendment’s Due Process Clause. He came to the conclusion that the freedom to marry was a “liberty” protected by the Due Process Clause, but he said nothing about how the “dueness” applied. His ostensible due process argument was pure equal protection:

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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.” [Emphasis added.]

Warren’s equal protection argument was cogent, even inspiring. However, his due process argument was unnecessary, and opened the court to the charge of judicial legislating through the substantive due process doctrine that had fallen into disrepute.

On the positive side, however, as Law Professor Dorothy Roberts points out in “Loving v. Virginia as a Civil Rights Decision,” 59 N.Y.L. Sch. L. Rev. 175 (2014–2015), the previous treatment of interracial marriage as a private matter that affected only a tiny minority of African Americans made its prohibition seem less significant and urgent. On the contrary, she observed:

[T]he anti-miscegenation apparatus erected in Virginia buttressed the racial order in fundamental ways that encompassed, and even surpassed, its impact on the everyday lives of interracial couples alone. Bans on interracial marriage not only stigmatized this aspect of social life, but they reinforced the ideology and practice of racial separation that undergirded the entire Jim Crow regime and systematically dehumanized all black people. . . . . . . [B]y highlighting the way Virginia institutionalized white supremacy in its regulation of families, the Loving decision helps to dispel the false dichotomy between public and private domains. . . . “

Mildred and Richard Loving went on to have three children: Donald, Peggy and Sidney Loving. Richard Loving died at age 41 in 1975, when a drunken driver struck their car. Mildred Loving lost her right eye in the same accident.

Mildred Loving died of pneumonia on May 2, 2008, in Milford, Virginia, at age 68. Her daughter Peggy Fortune said “I want [people] to remember her as being strong and brave yet humble—and believ[ing] in love.”

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