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A STORY OF TRIUMPH AND TRAGEDY page 3
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.
MIKE MORONES/THE FREE LANCE-STAR
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Date published: 6/10/2007

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The next month, the three-judge federal panel in Richmond declined to rule on Cohen's request for federal jurisdiction, saying they would give the state courts 90 days to resolve the case.

A 'shameful opinion'

In March 1966, the state Court of Appeals upheld the Bazile decision in what Cohen calls "one of the most shameful opinions of the 20th century."

The way was clear for an appeal to the U.S. Supreme Court.

Cohen and Hirschkop asked the high court for the right to be heard, and it granted the request in December 1966. Their court date was set for April 10, 1967.

Cohen invited the Lovings to attend the April appearance before the justices. The couple declined.

Richard Loving told Cohen: "Tell the court that I love my wife."

Attorneys arguing a case before the Supreme Court are limited to one hour.

"We stuck with the 14th Amendment," Cohen said. "I argued 'everyone's right to due process' and Phil did 'equal protection under the law.' We were a good team. The justices didn't ask us a single question."

Nine weeks later, on June 12, 1967, the decision came down. In an opinion written by Chief Justice Earl Warren, the justices ruled 9-0 that Virginia's Racial Integrity Act of 1924 violated the U.S. Constitution.

The ruling immediately ended enforcement of such laws across the country.

But it would take years for all 17 states with laws forbidding interracial marriage to remove them from their books. The last state to do so was Alabama, in 2000.

"Neither of the Lovings was the kind who jumped up and down," Cohen recalled. "In my office, after the ruling, she gave me a hug."

A 'SIGNAL EVENT'

Cohen, now 73, retired in 1998, having also served as a member of the Virginia House of Delegates representing Alexandria from 1980 to 1995. He was, in his words, "pretty much a radical." He introduced an early bill seeking to decriminalize homosexuality, which, he said, "never got out of committee."

In 1969 he won a case against Washington's National Airport that prompted curfews limiting night flights.

But Cohen, who joined the ACLU as a teenager, is proudest of his work on the Loving case.


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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.

JUDGE LEON BAZILE

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.