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Loving v. Virginia: “Banished” for Love

Photo of the “New Virginia Law to Preserve Racial Integrity” from the Virginia Health Bulletin by the Virginia Department of Health, March 1924, Vol. XVI, Extra No. 2. Photo by Francisco Macías

“Absence from those we love is self from self–a deadly banishment.”–William Shakespeare, A Midsummer Night’s Dream

At the Library

On May 3, 2017, in observance of the approaching 50th anniversary of Loving v. Virginia, the Library of Congress hosted a discussion on this famous interracial-marriage case.  The panel included Patricia Hruby Powell and Shadra Strickland, the author and illustrator, respectively, of a new and illustrated young people’s book titled Loving vs. Virginia.  The event was supported by the Jonah S. Eskin Memorial Fund of the Library of Congress—established to honor the late son of Marcia and Barnet Eskin.

Powell and Strickland shared primary sources they found in their research which was used to write and illustrate the book.  They were joined by Georgetown law professor (emerita) and constitutional specialist Elizabeth Hayes Patterson, associate director of the Association of American Law Schools.  The discussion was moderated by Deborah Taylor, an award-winning librarian and director of School and Student Services at Enoch Pratt Free Library in Baltimore.

Students who attended the event had an opportunity to ask the presenters questions. If you missed the event, you can watch it here—on Facebook and YouTube.

Historical Background

As one could surmise, what we now term as racism had been a way of everyday life for some time.  And it is no surprise that the legislative system had been leveraged to uphold this manner of oppression.  But the law can be at once an instrument for oppression and liberation.  Since colonial times, anti-miscegenation laws had existed in British North America and, after the Revolutionary War, in the United States.  Below is a selection of salient moments with respect to legal challenges of interracial marriage and anti-miscegenation laws.

1630— On September 17, the Governor and Council of Virginia colony decided that  Hugh Davis was to be “soundly whipped, before an assembly of negroes and others for abusing himself to the dishonor of God and shame of Christians, by defiling his body in lying with a negro; which fault he is to acknowledge next Sabbath day.”

1664–September 20, Colonial Maryland passes the “first colonialanti-amalgamation law‘,” which provided that “whatsoever free-born [English] woman shall intermarry with any slave . . . shall serve the master of such slave during the life of her husband; and that all the issue of such free-born women, so married shall be slaves as their fathers.”

1691In Virginia colony, legislation provides that “Any white person married to a black or mulatto is banished [. . .] partners in an interracial marriage cannot stay in the colony for more than three months after they are married.” [Emphasis added.]

1865Black Codes were issued by the states in the South, during the Reconstruction Era, subsequent to the Civil War with the aim of limiting the freedoms of the newly emancipated African Americans.  Among those limitations was interracial marriage.

1883Pace v. Alabama–“In November, 1881, the plaintiff in error, Tony Pace, a negro man, and Mary J. Cox, a white woman were indicted under sec. 4189 in a circuit court of Alabama for living together in a state of adultery or fornication, and were tried, convicted, and sentenced, each to two years’ imprisonment in the state penitentiary.  On appeal to the supreme court of the state, the judgment was affirmed [. . .].'”

1921Kirby v. KirbyNo. 1970, Supreme Court of Arizona, May 2, 1922–“Joe R. Kirby, alleging that he is of Caucasian blood and that Mayellen Kirby is a negress, and that on or about May 27, 1914, in Pima County, Ariz., they were married, brought suit to have said marriage annulled.”  The Supreme Court of Arizona included  in its opinion that “‘In many jurisdictions intermarriage of the white and black races or of the white and Indian and Mongolian race has been prohibited by statute, and such statutes generally declare illegal and absolutely void marriages of white persons with negroes of the whole or part blood, Mongolians or Indians.’ 18 R. C. L. 444. § 73.”  The Supreme Court of Arizona affirmed the case of Joe Kirby and the annulment was granted.

1924The New Virginia Law to Preserve Racial Integrity provided that “‘white’ persons were defined as those with ‘no trace whatsoever of any blood other than Caucasian’ or ‘one sixteenth or less of the blood of the American Indian.'”

1939Estate of Monks–This complicated case–which included issues of fraud and undue influence–revolved around the validity of the marriage between Allan Bradford Monks and Antoinette Giraudo.  The court concluded that Miss Giraudo had “Negro blood” and the marriage, which had taken place in Arizona, was void–as well as the will, which had assigned the entire estate to Giraudo.  The fraud aspect of the case was drawn from testimony by a “man who [. . .] stated that she was Louisiana Creole.  In addition to the testimony [. . .] the trial court had the opportunity to observe the appellant for many days [. . .] and was entitled to draw conclusions from such observations.”  The court concluded that Miss Giraudo had committed fraud when she represented herself as “a member of the Caucasian race.” Their finding was that these “representations were false, fraudulent and untrue.”

1948Pérez v. Sharp–(32 Cal. 2d 711)–Decided at the Supreme Court of California, this becomes the first case to find that anti-miscegenation laws in the United States were a violation of the Fourteenth Amendment of the U.S. Constitution. During the case, the California Civil Code of 1872 § 60 was cited.  It provides that “Marriages, illegal.  All marriages of white persons with negroes, mongolians, or mulattoes are illegal and void.”

About the Case

Before the Earl Warren Supreme Court, a landmark civil rights case was argued on April 10, 1967 and decided, ruling unanimously in favor of the plaintiffs Richard Perry Loving and Mildred Jeter Loving, on June 12, 1967 (388 U.S. 10).  Fifty years ago today, Chief Justice Warren delivered the unanimous decision of the court; within that decision was this statement:

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings return to Virginia and established their marital abode in Caroline County.  At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages.  On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentences for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years.” (Ibid. 3) [Emphasis added.]

The matter of leaving the state is a curious one.  In fact, banishment is what comes to mind.  When I set out to write this blog post, banishment was certainly what I aimed to write about. If we look to the language of the statute of Virginia colony of 1691, you can infer that this is what the authorities in Virginia aimed to do.  However, when the case went before the Supreme Court of Virginia (Loving v. Commonwealth, 206 Va. 924 (Va. 1966)), on March 7, 1966, the Supreme Court of Virginia states that the “terms imposed by the trial court for suspension of the sentences did not technically constitute banishment.”  But perhaps that’s a topic better examined in a future post.

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