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Attorney in landmark case remembers representing the Lovings, a Caroline County interracial couple

 A plaque and quill memorialize Cohen's appearance before the United States Supreme Court, where he successfully argued against Virginia's law barring interracial marriage.
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Date published: 6/10/2007


Bernard S. Cohen had been practicing law for only two years when he received the phone call that thrust him into a Virginia case that would change American society.

It was 1964, and the ACLU office in Washington called him to pass on a special request from Attorney General Robert Kennedy. They wanted the 30-year-old Alexandria attorney to take on Virginia's ban on interracial marriage.

"That's probably over my head," Cohen told the ACLU officials.

"It's not," they replied. "Set up a visit."

The case involved a Caroline County couple: Richard Loving was white; Mildred Loving was black. They had been married in June 1958, arrested a few weeks later at their home in Central Point and convicted of miscegenation the following year.

Their sentence was banishment from the state for 25 years, with the penalty of a year in prison if they returned earlier. After five years in exile, Mildred Loving wrote Kennedy asking for his help under the recently passed Civil Rights Act.

The Lovings were living in Washington. They wanted to go home.

"Because the Lovings were banished from Virginia, I had our first meeting at a friend's law office in Washington," Cohen recalled recently.

"After I listened to them, I told them I thought this case could wind up in the U.S. Supreme Court.

"I also thought it was a winner. It was a perfect case."

Cohen was right. Forty years ago Tuesday, the U.S. Supreme Court delivered a historic decision that struck down laws in Virginia and across the nation forbidding interracial marriage.

A flash of light

Before Cohen could appeal the Virginia ruling, he had to get the case back on a court docket. At that time, he faced the procedural rules of the laws of Virginia.

A motion to reopen a case had to be filed within 120 days of a judge's finding of guilt. Caroline Circuit Court Judge Leon M. Bazile had issued his banishment ruling against the Lovings in January 1959, more than five years before Cohen got the assignment.

"Nobody could think of a way to get the case back before the court," Cohen said.

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CHIEF JUSTICE EARL WARREN The heart of the Supreme Court's 1967 decision, written by Chief Justice Warren, said this: 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 14th Amendment, is surely to deprive all the State's citizens of liberty without due process of law. 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." JOHANN BLUMENBACH

Johann Friedrich Blumenbach, a prominent German physiologist (1752-1840), divided the human species into five races: the Caucasian or white race, the Mongolian or yellow race, the Malayan or brown race, the Ethiopian or black race and the American or red race. In his era, physical characteristics such as skin color were linked to intelligence and abilities. Such concepts of race persisted until the mid-20th century, when scientists--and the courts--defined Homo sapiens as a single and inherently equal race.


Circuit Judge Leon M. Bazile drew on Blumenbach in his January 1965 defense of Virginia's ban on mixed marriages. "Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents," Bazile said. " The fact that He separated the races shows that He did not intend for the races to mix."

In a statement accompanying its 1967 decision, the U.S. Supreme Court responded to Bazile by saying that distinctions drawn according to race were generally "odious to a free people" and that Virginia's law constituted "invidious racial discrimination." The court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites.