"Separate but Equal" - The Tale of Richard and Mildred Loving

The film Loving will soon be released in the United Kingdom. It re-tells the incredible story of Richard and Mildred Loving, a couple banished from their home State of Virginia for committing the crime of miscegenation – in other words, intermarrying across races. In light of the movie’s imminent release, we thought that we would re-visit the original Supreme Court judgement in Loving v Virginia and the crafty, disingenuous and downright racist justifications put forward in defence of segregation.

Chief Justice Warren, who delivered the judgement of the Supreme Court, had around 13-years earlier delivered judgement in the seminal case of Brown v Board of Education. That case concerned the segregation of children of colour from white children in schools which had been upheld by courts in Kansas, South Carolina, Virginia and Delaware. The treatment was justified on the basis of the 1896 case of Plessy v Ferguson where the Supreme Court had declared that the “separate but equal” doctrine was constitutional.

“Separate but equal” is a prime example of sophistry. The argument runs that where both A and B are given roughly equal facilities, but those facilities are kept separate, there is equality of treatment.

In Loving, the State of Virginia attempted to apply the same principle to marriage, arguing that, while people of different races were prohibited from intermarrying, both black people and white people could still get married (but only to people of their own colour) and both races would be penalised for intermarrying. As such, they were treated equally under the law, despite being kept separate. Virginia contended, therefore, that there was no violation of the Fourteenth Amendment to the Constitution (‘equality before the law’).

Despite the pretence of equality noted above, the true rationale underlying miscegenation laws was laid bare in the case of Naim v Naim. The ruling came just one year after Chief Justice Warren’s seminal finding, in the 1954 case of Brown v Board of Education (above), that “[s]eparate educational facilities are inherently unequal” and contrary to the Fourteenth Amendment. Despite the clear denunciation in the field of public education, Judge Buchanan, sitting in the Supreme Court of Virginia in Naim, delivered the following, chilling statement:

We are unable to read in the Fourteenth Amendment … any words … which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of citizenship.

13-years passed before Loving v Virginia made it to the Supreme Court. Virginia, relying on the same hackneyed doctrine as before, were probably a little disgruntled to see Chief Justice Warren sitting on the bench.

In one of the clearest denunciations of the prohibition on miscegenation, during his judgement, Warren C.J. decries the provision as an “incident to slavery”, before comprehensively dismantling Virginia’s claim; asserting, in a passage liable to give Atticus Finch a run for his money, that:

[m]arriage 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.

While the reviews and the official trailer for Loving are looking pretty fantastic, we recommend that our readers also give the case of Loving v Virginia a read. International human rights law, our primary focus on this blog, does not operate in a vacuum and the principles applied in the international sphere were founded on courageous and controversial rulings, in the face of systemic inequalities. Loving v Virginia is one such case.

The judgement itself is both short and sweet, with a bold message and a heart-warming set of underlying facts. We recommend it so highly that we have embedded a copy down below. So if you have some spare time today, give it a read!