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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


"One day, I was doing research in another case and came across this line: 'A suspended sentence is always in the breast of the court.' A bulb lit up in my head."

He realized that being "in the breast of the court" meant that if a ruling was suspended, the case remained alive. Bazile, in imposing his 25-year banishment, had suspended enforcement of his one-year prison sentence.

"This is great!" Cohen exulted.

In November 1964, Cohen filed a two-page motion with Bazile asking that the case be reconsidered. Cohen wrote that the banishment of the Lovings violated Virginia's constitutional protection against "cruel and unusual punishment."

Meanwhile, Cohen's young colleague, Philip J. Hirschkop, a liberal firebrand and a veteran of the freedom marches in Mississippi, joined the case. He suggested that they file an appeal in federal court based on an 1865 federal law that set up special three-judge courts to enforce newly passed amendments to the U.S. Constitution protecting the rights of blacks after the Civil War.

The two lawyers took the case to both the 4th U.S. Court of Appeals in Richmond and the state Court of Appeals.

It was a bold move, lawyer Stewart C. Economou told the Legal Times in a recent article. "If you knew Virginia back in the early '60s, to have a couple of Jewish guys from New York come down here and take on this case, that took a lot of courage," said Economou, who knows both Cohen and Hirschkop.

Were there repercussions? "I received some nasty phone calls, and the KKK attacked me editorially, but I never felt physically threatened," Cohen recalled.

With the case back in the public eye, the Lovings were allowed to quietly return to their home in Caroline County.

In January 1965, Bazile issued his final statement on the case. He said that God had created people in different colors and placed them on different continents to show "that He did not intend for the races to mix."

"That was a 'no' for us," Cohen recalled, "but it formally reopened the case. We finally had something to appeal."

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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.