Loving v. Virginia

LOCATION: Virginia General Assembly


CITATION: 388 US 1 (1967)
ARGUED: Apr 10, 1967
DECIDED: Jun 12, 1967

Bernard S. Cohen - For the Appellant
Philip J. Hirschkop - For the Appellant
R.D. McIlwaine III - For the Appellee
William M. Marutani - for the Japanese American Citizens League, as amicus curiae, urging reversal

Facts of the case

In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years).


Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment?

Media for Loving v. Virginia

Audio Transcription for Oral Argument - April 10, 1967 in Loving v. Virginia

Earl Warren:

Number 395, Richard Perry Loving, et al., Appellants, versus Virginia.

Mr. Hirschkop.

Bernard S. Cohen:

Mr. Chief Justice, may it please the Court.

I'm Bernard S. Cohen.

I would like to move the admission of Mr. Philip J. Hirschkop pro hac vice, my co-counsel in this matter.

He's a member of the Bar of Virginia.

Earl Warren:

Your motion is granted.

Mr. Hirschkop, you may proceed.

Philip J. Hirschkop:

Thank you Your Honor.

Mr. Chief Justice, Associate Justices, may it please the Court.

We will divide the argument.

Accordingly, I will handle the Equal Protection argument as we view it and Mr. Cohen will argue the Due Process argument.

You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law.

We referred to the law itself -- oh at first, I'd like to bring the Court's attention, there are some discrepancy in the briefs between us and the common law especially as to which laws are in essence.

They have particularly said that Section 20-58 and 20-59 of the Virginia Code are the only things for consideration by this Court, and those two Sections, of course, are the criminal section, making a criminal penalty for Negro and white to intermarry in the State of Virginia.

20-58 is the evasion section under which this case particularly arose which makes it a criminal act to people who go outside the State to avoid the laws of Virginia to get married.

We contend, however, Your Honors that there is much more in essence here.

That there's actually one simple issue, and the issue is, may a State proscribe a marriage between two adult consenting individuals because of their race and this would take in much more in the Virginia statutes.

Sections 20-54 and 20-57 void such marriages and if they void such marriages, you would only decide on 20-58 and 20-59, these people, whether they go back to Virginia and they are in Virginia now, will be subject to immediate arrest under the fornest -- fornication statute, and the lewd and lascivious cohabitation statute and more than that, there are many, many other problems with this.

Their children would be declared bastards under many Virginia decisions.

They themselves would lose their rights for insurance, social security and numerous other things to which they're entitled.

So we strongly urge the Court considering this to consider this basic question, may the state proscribe a marriage between such individuals because of their race and their race alone.

John M. Harlan II:

How many states (Inaudible)?

Philip J. Hirschkop:

There are 16 states, Your Honors that have these States.

Presently, Maryland just repealed theirs.

These all are southern states with four or five border southern states as Oklahoma and Missouri, and Delaware.

There have been in recent years two Oklahoma and Missouri that have had bills to repeal them but they did not pass the statute.

Now, in dealing with the equal protection argument, we feel that on its face, on its face, these laws violate the equal protection of the laws.

They violate the Fourteenth Amendment, and in dealing this, we look at the arguments advanced by the State and there're basically two arguments advanced by the State.

On one hand, they say the Fourteenth Amendment specifically exempted marriage from its limitations.