Nel's New Day

February 15, 2012

Loving Gives Hope to Same-Sex Marriage

When Richard and Mildred Loving married over a half-century ago, they were arrested in their home state of Virginia and sent to jail. After a trial, the judge released them on a suspended sentence under the condition that they leave the state for 25 years and not return together. He did this because Richard was designated “white” by the state because he was over 99 percent Anglo and Mildred was classified as “Nigra” because she was half black and half Native American.

After five years of miserable exile in Washington, D.C., Mildred wrote Robert Kennedy asking whether the civil rights legislation might help them. He said it would not and that they should contact the ACLU. This action led to five years of court battles, resulting in the U.S. Supreme Court’s unanimously ruling in Loving v.Virginia that interracial couples could legally marry any place in this nation, overturning the law in 16 states. Alabama didn’t remove its anti-miscegenation law from the books until 2000.

Yesterday, on Valentine’s Day, HBO showed director Nancy Buirski’s 78-minute documentary, The Loving Story, about the couple’s journey from banishment in Virginia to legalized interracial marriage across the country.  The story of their nine years’ together between the marriage and the court ruling is made even more compelling because of the rare photographs by Life photographer Grey Villet and archival footage by filmmaker Hope Ryden which were stored in a closet for almost 40 years. These show such simple activities as the couple holding hands and Mildred putting socks and patent leather shoes on their daughter, Peggy, while Richard loads the fireplace with wood. At the same time, they are forced to live their lives in secret, but their love shines in the photographs and films.

What struck me most about this documentary is the parallel to the nation’s fight over same-sex marriage. The Lovings were arrested at 2:00 am when the sheriff broke into their home, something that some older gays and lesbians have experienced. The couple was legally married in Washington, D.C., but in Virginia they went to jail because they were married in another U.S. jurisdiction. They had no rights such as receiving each other’s Social Security and inheriting the other’s property without a will if one of them died.

The court and the state law used God and the Bible to justify making the Lovings’  marriage illegal. According to the judge, God showed that he didn’t want interracial marriage because he put each race on a different planet. In the Supreme Court argument against Loving, the Virginia attorney general said the reason for preventing interracial marriage was the children. They deserved a stable home, and interracial couples could not provide this because of the stresses on them. They weren’t allowed to marry because society didn’t want them to be together. Audiotapes of the Supreme Court arguments show that the attorney general also justified the state’s anti-miscegenation statutes in the same way that they have the right to prohibit incest, polygamy, and underage marriage.

The two young ACLU lawyers who took on the Lovings’ case, Bernard S. Cohen and Philip J. Hirschkop, were very young. Cohen had been out of law school only three years, and Hischkkop only two—not even long enough to argue in front of the Supreme Court without partnership with another qualified lawyer. Their arguments came from the Ninth and Fourteenth Amendments—rights “retained by the people” that do not expressly appear in the Bill of Rights (Ninth Amendment) and due process and equal protection under the law (Fourteenth Amendment). As one of the Justices pointed out,Virginia refused to give a class of people their equal rights. In the same way the United States refuses rights for another class of people, gays and lesbians.

The oral arguments included the question of how the state would be damaged by interracial marriage and what the couple would lose without the opportunity to be married inVirginia. The state could provide no compelling reason, whereas the Lovings’ losses included their inability to be near their family.

Gays and lesbians have much more to lose if they cannot be married, such as potential loss of couple’s home from medical expenses of one partner caring for another gravely ill one; costs of supporting two households, travel, or emigration out of the U.S. for an American citizen unable to legally marry a non-U.S. citizen; higher cost of purchasing private insurance for partner and children if the employer is not one of 18 percent that offer domestic partner benefits; payment of higher taxes because domestic partner benefits are taxed as additional compensation; legal costs associated with obtaining domestic partner documents to gain some of the power of attorney, health care decision-making, and inheritance rights granted through legal marriage; higher health costs associated with lack of insurance and preventative care because 20 percent of same-sex couples have a member who is uninsured compared to 10 percent of married opposite-sex couples; inheritance taxes because unmarried couples cannot inherit an unlimited amount from the deceased without incurring an estate tax; and over 1000 other issues.

The Lovings did not want to hear the oral arguments before the Supreme Court. Cohen asked Richard if he had anything to tell the court. All he said was “Tell the court that I love my wife, and it is unfair that I can’t live with her inVirginia.” People in same-sex relationships agree. They love their partners and restrictive laws that prevent their legal marriage in the United States are unfair.

The bottom line is that the Constitution was written, in part, to protect the minority. It does not allow the majority to vote away the rights of the minority, as New Jersey Gov. Chris Christie wants to do by vetoing the same-sex marriage bill passed by the legislation and sending it to voters to decide. As the Rev. Al Sharpton said on The Bill Maher Show, if people are allowed to vote on human rights, he’ll be sitting at the back of the bus again. Symbolically, the LGBT community is still there.

In its ruling, the U.S. Supreme Court wrote, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. 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 discrimination. 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.”

A year before she died, on the fortieth anniversary of the Loving v. Virginia decision, Mildred Loving said, “Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. 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 the 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.”


  1. Gays have more to lose than the Lovings? Obviously you know nothing about their story. Richard built the house they lived in Va. And let’s not count out the fact the prison time they served even when Mildred was pregnant and was threatened with rape. Or the threat of death by KKK who burned crosses in their yard. And you’re talking about insurance benefits. Get a grip…and walk a mile in my shoes. You couldn’t last a block.


    Comment by BerniceG — February 16, 2012 @ 9:00 PM | Reply

    • I left out the parts about gays and lesbians losing their homes when their partners die–homes they built together, prison time when sodomy laws were still in effect, threats of death–think about Mathew Shepard, etc. Read a history of LGBT persecution in the United States, A Queer History of the United States, to see the parallels between racial and LGBT struggles. Try walking a mile in LGBT shoes.


      Comment by trp2011 — February 17, 2012 @ 6:37 PM | Reply

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