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A STORY OF TRIUMPH AND TRAGEDY

June 10, 2007 12:36 am

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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. JohannFriedrichBlumenbach.jpg

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Attorney Bernard S. Cohen won an appeal of the Lovings' conviction in 1967. Now retired, he lives in Spotsylvania. 0610upwarren2.jpg

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Richard and Mildred Loving in a photo taken after the June 12, 1967, U.S. Supreme Court ruling striking down Virginia's ban on interracial marriage. 0610a12lovingsjump.jpg.jpg

Richard and Mildred Loving speak with an ACLU attorney in May 1965. Attorney Bernard Cohen, then 30, initially told the ACLU the case was 'probably over my head.'

BY HUGH MUIR

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.

"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."

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.

Interracial marriages now make up about 3 percent of all unions in America, according to the latest census numbers. Almost 1.7 million couples classified themselves as interracial in 2002, nearly three times as many as in 1980.

"April 10 [1967] was one of the signal events of my life," Cohen said. "And it was the only time I've ever argued a case before the Supreme Court."

Cohen and his wife, Rae Rose, moved to Spotsylvania County in May 2006. He has a son, Bennett, a daughter, Karen, and three grandchildren.

Hirschkop, now 70, went on to lead the fight for a number of liberal causes, including animal rights and freedom of speech for American Nazis and Vietnam War protesters. He and Cohen split their partnership in 1972, but continued to work in law firms only three blocks apart. He retired in 2006.

Mildred Loving, now 67, lives quietly in Milford in Caroline County, some 20 miles from Cohen's Fawn Lake residence. He keeps in touch with her by phone and talked to her as recently as late May.

She declined to be interviewed for this story, citing health issues.

Richard Loving died in 1975 at age 41 in an auto accident.

Bazile died at age 76 in March 1967, three months before the Supreme Court overruled him in the Loving case.

"What the Lovings did was never a crime." Cohen said. "If you ask me, the crime was the passage of the statute."

Hugh Muir: 540/735-1975
Email: hmuir@freelancestar.com




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.




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