facebook linkedin twitter

Could the Potential Decision on Roe Pose Threat to Interracial Marriage Precedent?

May 6, 2022 by Dan McCue
Could the Potential Decision on Roe Pose Threat to Interracial Marriage Precedent?
This Jan. 26, 1965 file photo shows Mildred Loving and her husband Richard P Loving. (AP Photo)

WASHINGTON — As talk about the possible collateral effect of the Supreme Court potentially overturning Roe v. Wade continues to roil Washington, The Well News reached out to attorney Philip Hirschkop to ask what impact that might have on the standing of his landmark civil rights case before the high court, Loving v. Virginia.

The Loving decision, handed down in 1967, struck down all state laws banning interracial marriage on the grounds they violate the Equal Protection and Due Process Clauses of the 14th Amendment to the U.S. Constitution.

Beginning in 2013, it was cited as precedent in U.S. federal court decisions holding restrictions on same-sex marriage in the United States unconstitutional, including in the 2015 Supreme Court decision Obergefell v. Hodges.

The plaintiffs in the case were Richard Loving, a White man, and Mildred Loving, a woman of Cherokee, Portuguese and African-American ancestry who identified as Black.


After Loving became pregnant in the early summer of 1958, the couple traveled to Washington, D.C., to marry in order to evade Virginia’s Racial Integrity Act of 1924, which made marriage between Whites and non-Whites a criminal offense.

Richard and Mildred’s marriage certificate, 6/2/1958. (National Archives)

Shortly after the couple returned to their Central Point, Virginia, home, police raided their home, hoping to find them having sex, as interracial sex was also illegal in Virginia at the time. Instead, the officers found the couple merely asleep.

When the surprised Loving awoke to find her bed surrounded by police, she pointed to the couple’s marriage certificate, which they’d hung on the wall.


The officers told the couple the certificate was invalid in the Commonwealth of Virginia.

The couple was ultimately convicted of violating the Racial Integrity Act and sentenced to a year in prison. They appealed their conviction to the Supreme Court of Virginia, which upheld it. They then appealed to the U.S. Supreme Court.

Throughout their case, the Lovings were supported in court by the American Civil Liberties Union, which asked Hirschkop and another attorney, Bernard Cohen to work together in the couple’s defense.

When the case came before the Supreme Court, Hirschkop and Cohen, both just newly out of law school, were permitted to share the oral argument before the justices.

During oral arguments, the state argued Virginia’s law was not a violation of the Equal Protection Clause because the punishment was the same regardless of the offender’s race, and thus it “equally burdened” both Whites and non-Whites.

But the court didn’t buy that argument, finding that the law nonetheless violated the Equal Protection Clause because it was based solely on “distinctions drawn according to race” and outlawed conduct – getting married – that was otherwise generally accepted and which citizens were free to do.


On Thursday, Hirschkop, who will turn 86 next week, told The Well News via email, “Obviously, from what I’ve heard of the opinion, it would undermine the equal protection ruling in Loving, but probably not affect the holding as there was a strong decision on due process which is unaffected by the present draft opinion.

“Aside from that, mixed racial couples now are so accepted in society it’s not likely that anything but a few states would even try to undermine that,” he said, adding, “There are always the crazies in places like Texas and Florida that would follow the lead of the new corrupt majority on the Supreme Court.”

A+
a-

In The News

Health

Voting

Civil Rights

May 19, 2022
by Dan McCue
Oklahoma Bans Nearly All Abortions After Fertilization

OKLAHOMA CITY — The Oklahoma Legislature on Thursday passed the nation’s strictest abortion law to date, banning almost all abortions... Read More

OKLAHOMA CITY — The Oklahoma Legislature on Thursday passed the nation’s strictest abortion law to date, banning almost all abortions from the moment of conception. The bill itself was modeled on a law that took effect in Texas in September. Like the Texas law, it relies... Read More

May 18, 2022
by Tom Ramstack
A Potential Federal Law on Abortion Divides Witnesses Before Congress

WASHINGTON — Abortion supporters and detractors made impassioned pleas before a congressional committee Wednesday while invoking constitutional rights or Biblical... Read More

WASHINGTON — Abortion supporters and detractors made impassioned pleas before a congressional committee Wednesday while invoking constitutional rights or Biblical teachings. The House Judiciary Committee is considering one of several proposals in Congress on whether to enact a federal law to guarantee women’s rights to abortion.... Read More

May 14, 2022
by Alexa Hornbeck
Health Care Organizations Rally for Abortion Rights in DC

WASHINGTON — Thousands of protestors gathered on Saturday to march for abortion rights from the Washington Monument to the Supreme... Read More

WASHINGTON — Thousands of protestors gathered on Saturday to march for abortion rights from the Washington Monument to the Supreme Court building. The rally, called "Bans Off Our Bodies" was arranged by health organizations and advocates from across the country, such as Planned Parenthood, the American... Read More

May 13, 2022
by Reece Nations
Texas Supreme Court Rules to Allow Trans Abuse Inquiries 

AUSTIN, Texas — The Texas Supreme Court ruled unanimously on Friday that the state child welfare agency can continue investigating... Read More

AUSTIN, Texas — The Texas Supreme Court ruled unanimously on Friday that the state child welfare agency can continue investigating parents and doctors who provide gender-affirming care for transgender youth. Gov. Greg Abbott’s February directive to the Texas Department of Family and Protective Services compelled the... Read More

May 11, 2022
by Dan McCue
Democrats’ Effort to Secure Abortion Rights Falls to Filibuster

WASHINGTON — The fact that defeat was in the bag didn’t reduce the sting for Senate Democrats who failed to... Read More

WASHINGTON — The fact that defeat was in the bag didn’t reduce the sting for Senate Democrats who failed to pass legislation Wednesday that would have enshrined abortion rights into federal law and circumvented the Supreme Court’s anticipated overturning of Roe v. Wade. In the end,... Read More

May 11, 2022
by Dan McCue
If Roe Falls, What Civil Rights Precedents Might Be Next?

WASHINGTON — James Obergefell, who was in the nation’s capital this week to attend a fundraiser and visit with friends,... Read More

WASHINGTON — James Obergefell, who was in the nation’s capital this week to attend a fundraiser and visit with friends, wears the mantle of a civil rights icon lightly. Warm, often funny, and intelligent, the plaintiff in Obergefell v. Hodges, the landmark civil rights case in... Read More

News From The Well
scroll top