Love: The Loving Kind

Nanci Griffith: The Loving Kind
[purchase] 

Every once in a while, I’m struck when something that seems so incredibly wrong still existed in my lifetime. Like the fact that married women couldn’t get credit cards in their own name until the 1970s, or that people of the same gender couldn’t get married until a few years ago. But it really is incredible that in my lifetime there were places in this country where it was still illegal for blacks and whites to get married, until the Supreme Court unanimously ruled, in 1967, that such laws were unconstitutional in the landmark case of Loving v. Virginia. And yes, that was their last name, which couldn’t have been more perfect.  (And no, I haven't seen the movie yet, but it's on my list.)

That it took just over 100 years from the end of the Civil War (and just under that from the ratification of the Fourteenth Amendment which, by its clear and unambiguous terms, prevents states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States;” and which prevented any state from depriving “any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”) to have the Supreme Court make such a ruling, is incredible, unless you have any knowledge of American history, and its inherent racism. (And whether the Supreme Court, as currently constituted would do the same, unanimously, actually seems unlikely to me.) 

Even with the Supreme Court ruling, Alabama continued to enforce a similar law until 1970, when the—wait for it—Nixon administration went to federal court to stop it. And Alabama actually kept the law on its books until 2000, when 60% of its voters approved a constitutional amendment to remove it. Which means that 40% of the voters still wanted to keep it. 

In 1958 (a few years before my lifetime), Mildred Jeter, a woman of Native American, European and African American heritage from Central Point, Virginia married Richard Loving, a white man (and descendant of a Confederate soldier), who was a friend of Mildred’s brothers and who reportedly had many close black friends, after Mildred became pregnant. They were married in Washington, D.C. and returned to Virginia, where their marriage was illegal. Remarkably (or, maybe not so remarkably), they were ratted out to the sheriff, who arrested them. They pleaded guilty, were convicted on January 6, 1959 and sentenced to one year in prison, suspended for 25 years on the condition that they leave the state. So, they moved to Washington, DC, but missed their hometown, despite the whole being snitched on and arrested for being married thing. 

In 1964, Mildred wrote to Bobby Kennedy, the Attorney General, who referred her to the ACLU, which filed a motion to vacate the conviction and set aside the sentences. When the state court sat on the motion for a year, the ACLU brought suit in federal court, prompting the state court judge to deny the motion, stating, remarkably (or, maybe not so remarkably): 

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 marriages. The fact that he separated the races shows that he did not intend for the races to mix 

In 1966, the Virginia Supreme Court, hearing the appeal of this ignorant and racist decision, upheld the state ban on interracial marriage, using an extremely convoluted interpretation of the Fourteenth Amendment (which had been endorsed previously by the U.S. Supreme Court). It was that decision that was rejected by the United States Supreme Court, which found that the law really, really, really violated the Constitution (and reversed its prior, totally wrong, interpretation of the Fourteenth Amendment). 

Mildred and Richard moved back to Virginia and lived there for the rest of their lives. Richard was killed by a drunk driver in 1975; the accident cost Mildred an eye. She lived on until 2008, when she died of pneumonia. 

One person who read Mildred’s obituary was Nanci Griffith, who wrote “The Loving Kind,” about the Lovings and their case, and released it in 2009 as the title song of an album. It’s a good story song and does not sound at all like a law school casebook. 

Of course, it wasn’t until 2015 that the Supreme Court, in Obergefell v. Hodges, extended the logic and holding of Loving to prevent bans on same-sex marriage. These cases, and others, used to give me hope that our country was making social progress, which the Supreme Court (eventually) caught up to. But that hope does not seem justified at this time.