tv Discussion on the Legacy of Loving v. Virginia CSPAN August 11, 2017 2:56pm-4:11pm EDT
>> sunday, starting at 6:00 p.m. on american artifacts, a behind-the-scenes tour of the smithsonian castle on the national mall. and at 6:45 p.m., the u.s. commission on civil rights marks the anniversary of the americans with disabilities act. with a report on its history. and the work that remains. american history tv. all weekend, every weekend, only on c-span 3. the 1967 supreme court ruling, loving versus virginia, struck down laws prohibiting racial marriage. at the time 16 southern states had laws banning interracial marriage. up next here on american history tv, on c-span 3, a conversation on the case from the virginia historical society. >> jeter was not a white woman. richard loving, all agreed, was a white man.
so virginia state law not only rendered their 1958 marriage illegal, but also required a penalty of at least a year in prison for it. circuit judge leon f. zeal chose to suspend their prison sentences if they agreed to leave the state. after a few years of exile, loving sought legal assistance to let them return home to virginia. today our speaker will be focusing on the suit mr. and mrs. loving brought against the commonwealth, a case that eventually made its way to the u.s. supreme court. the lovings challenged the con seat that the state could tell two people that simply because they did not share the same racial identity, they could not marry. and if they married, that they should be imprisoned for doing so. this talk will explore their tangled biographies on the way to a breakthrough supreme court ruling in 1967. a ruling whose echoes can be heard very clearly in the
politics and jurisprudence of today. peter wallenstein is a professor of history at virginia tech where he has taught for more than 30 years. before that, he taught in new york, canada, japan and korea. his teaching has been brought him a number of awards. including the alumni award for teaching excellence at tech. in addition to his role as a distinguished teacher, peter has long been a leading historian of virginia and the american south. his various books include a history of virginia, titled "cradle of america" which was a quadracentennial publication, coming out on the 400th anniversary of virginia a history of virginia for fourth graders and path-breaking books on public policy in 19th century georgia and on conflict and change in 20th century virginia. his newest book, "race, sex, and the freedom to marry: loving v.
virginia" is the subject of his talk today. please join me in a warm vhs welcome to peter wallenstein. good afternoon. we already did that. thank you all so much for coming out today. and special thanks to the virginia historical society for hosting this event and for in fact giving a good home to one of the more sources that i used in constructing a portion of this book. i heard something. i woke up, a little at first. it was this bright, light in the room. a strange man next to my bed.
two, no, three men. that's not exactly the voice of mildred loving. it's not exactly the words she's used to describe that experience. but it gives us an idea of the terror of that night. the sudden intruders. and it's a pro log to what came after. the other day i ran across a brand-new book just last week on the lovings. it got the names right. richard and mildred. i got the kids' names right, too, donald and peggy and sidney. it just didn't present them in the right birth order. it's so hard to get the facts right on this story. so we see that time and again, books published, obituaries when mildred died, films, time and
again the most elemental facts get wrong. i try to do it right. i try. the core story, mildred jeter. do you know how to spell that? j-e-t-e-r. a lot of jeters running around in virginia, some white, some black, that's in a binary role that classifies everybody as just one or the other. mildred jeter and richard loving that was his name. they grew up in rural caroline county. so an hour's drive northeast of here. it's in a part of the world i remember most first going there. there's a canopy of pine trees coming up both sides of a narrow road and meet in the middle. the yellow line has long since gone away. if you see two houses at the same time, you know you've come upon a settlement. it's not really near almost
anything else. but, central point sports a fairly imposing building, st. stevens baptist church where mildred went all her life. and the cemetery across the road from the church, gives some clues about the people and the family from the area over the years. and the cemetery like the church has a tri-racial constituency, white, black and indian. now in june '58, as paul just said, the couple got married. they wept off to d.c. richard thought they couldn't get married in virginia but he thought they certainly cot ko in d.c. he thought they probably ought to get married. because mildred was pregnant. this was the 1950s, a dear abby story, i didn't make this up. but somebody wrote dear abby back in those days, before the pill and said, expressed concern about a member of the family who had just had a child and well under nine months after the
marriage. and abby wrote back and said not to worry. the child was on time. the wedding was late. >> so they went off to d.c. to do what so many young couples did in those days. they got married, they came back and all was well, at least for a month. now mildred called herself on her marriage license, the form she filled out in d.c., she racial identity, indian. years later, when she wrote for legal help, she identified herself as part negro and part indian. now that's how she described herself. it didn't matter how she described herself. under virginia law, racial integrity act this woman is a colored woman. it does not matter the details. and richard, well nobody ever suggested he was anything other than white. though how could anybody
actually know? so he could not marry somebody who wasn't white, she couldn't marry someone who was, and they did and it led to the terror-struck moment i opened up with. this teenaged bride, late one night, not very far from here, some 57 years ago. without which, we would have no subject of today's talk, because no one would have ever heard of the lovings and there would be no case, lovings versus virginia but here we are. in january of '59 the trial came. plea bargain drove them out of the state, exile. 25 years, don't ever come back together during that time. so they moved back to d.c., it wasn't that far. they could live there, the law wouldn't bother them. but they had been banished. four years passed. and more. mildred had had enough. and she wrote a letter. and looking ahead, june 1967,
the supreme court of the united states ruled that these convictions must be overturned. and the lovings were free to live in virginia, go public, permanent free. and richard now built the house, a brick house, it still stands there. the one he had meant to start nine years earlier. now he could. and did. the ruling in that case transformed the law of the land. in ways that reverberate down to the present. those are the core facts. but it's not where i started writing this book. i started it at the end of course. i went to mildred's funeral. it was an extraordinary weekend. i went back to blacksburg. drove back up the mountain, kicked on the computer, started writing and 5,000 words later leaned back and i thought that pretty much captures mildred, how she's been understood, the events of the weekend.
and how a lot of people whose lives had intersected with hers had come to know her and what they had to say. i looked at the book and it looked like an epilogue. the epilogue comes at the end of a book. then you have to write the book. you have to write the book before the epilogue can do the work it was designed to do. now i had already written an earlier book on interracial marriage, on race law and marriage. and it came out a dozen or so years ago, 2002. tell the court i love my wife. i still like the title it may still be my favorite book. i'm thinking i love all my children, but yeah, that may still be my favorite book. those are the very words that the lovings' attorney, told the justices of the supreme court that richard had told him to
convey to the court, mr. cohen just tell the court i love my wife. and that it's just unfair that i can't live with her in virginia. the earlier book came out, good deal, good many years ago and i told the story there briefly. more fully than any of the other many stories i told of other couples across time and space from maine to california. from the 17th century, to the 20th. that was the story that gave the title to the book. it's the way i started the scene at the very beginning of the book and it's where almost near the end i tell the story more detail. i thought when i finished the book that as with all my books, i've done that now. i'll go away and somebody else can come correct me or fill in the details or do whatever else. i thought maybe i was done and i pressed on to other big topics. that were also dear to my heart. but there was also this glimmer in the back of my mind that maybe somehow i would want to come back and tell a family
history. not just a legal history and not just bare bones, but a community, a family, a couple. and a case that they brought. not all that stuff i had to do to situate their story in the first book. enough, but only enough. i quoted in the first book from mrs. loving. words that she conveyed to me in our very first conversation. and then they made it into the first book, they made their way into the second book. i kept going back to the scrawl and discerning something else i had written down. i wasn't able to work it out what it was the first time. it's pretty graphic. it's pretty direct. describing the scene. and then she went upstairs to her mother's bedroom. sat on the bed, moms can't fix everything. mom couldn't fix that. so maybe i would write another book. mildred's funeral forced me to
do it. going to her funeral gave me the stuff. got me started. i had an epilogue, i needed a book. now my book emphasizes five main characters. clearly richard and mildred. we've already met them a little. judge leon bazile, hanover county up to caroline, you go through it on the way up to d.c. he had served as a circuit court judge since the year the u.s. had entered world war ii. back in the time of world war i, he had been working in the state attorney general's office. and he would stay there for many years after he returned from the war. then he served three terms in the house of delegates. this guy had been around. within the realm of virginia politics. he had vast experience. and he left his imprint on public policy in any number of ways. he was a force. and he was a figure of some cultural dominance as well. he was a historian, he loved
music, he did all kinds of stuff. but we don't know him for any of that. we know about him only because of about five words he uttered fairly late in his life. right? and god almighty created the races. well let's read the whole thing he wrote. or the full passage that all that's ever given. almighty god created the races, right, black, yellow, red and malay and he placed them on separate continents. that was deliberate, you know. and but for the interference with his arrangements, bazile never explained what he might mean by that, but for the interference with his arrangement there could be no cause for such marriages. the fact that he separated the races shows that he did not intend for the races to mix. and so i suppose and we should guess that the state of virginia had a duty to enforce god's chosen design. often misplaced, that statement is frequently said to have been voiced at the original trial in
january '59. normally you don't get a judge explaining the resolution to a case at that point. in fact, he actually wrote these words six years later. when the lovings had brought, successfully brought the case back into court and now he had, he had the obligation, he had the opportunity to explain in tremendous detail, these are 12 pages in longhand, they type out to about the same. where he voiced, he articulates the history of the law of race and marriage. and he sees no possible basis on which that lovings could bring a successful case on constitutional grounds, the rules are clear. this is simply his punchline. "and god almighty created the races." >> for my purpose today, though, the most striking thing about judge bazile is his own mixed
marriage. now the papers of judge leon bazile here at the virginia historical society include a just extraordinary collection over a period of years. bazile had a problem. he had a prospective bride. she understood he loved her. she was pretty fond of him, too. but she insisted, month in and month out that leon, we can never be more than friends. we can never marry. why? it's really important to know about bazile that he's from virginia. and that his prospective bride was from alabama. that can't be it. okay, maybe this is it. he's a catholic. and she's a baptist. and that caused huge problems. the only way they resolved these problems on his terms in the end, was when his draft notice
came during world war i. and she came suddenly to recognize that he might well soon be going off to war and he might well not be coming back from war. and suddenly she recognized in a way she never had how just vital to her happiness he was. and they got married. so as a married man, he went off to france. where his great grandparents had been born. so he is still a catholic, she's still a baptist, but now they're married. now i did bring a script, i'm checking it every once in a while. i want to be sure i don't leave out all the good stuff. i can't find one of those pages, so i'm going to have to rewrite it or have somebody bring it up to me in a hurry. one fairly recent account of the
lovings' story. one fairly recent account about the judge that he quote imposed the maximum penalty on the couple. yeah i guess 25 is more than one to five. but as he saw it walking into the courtroom that day, he knew discretion ranged from a minimum of one year in the penitentiary to a maximum of five. that was it. if they were guilty, and it was hard to imagine that they weren't, then that was the discretion he had. yet what he did was exile them. he left them free. but only up to a certain extent. they weren't free to stay married and in virginia they were free to stay married and in virginia, they just couldn't do both. but if he didn't impose the maximum, if he didn't even impose the minimum, then what was going through judge bazile's mind that day? as i write in the book, i'm going to quote here, we can imagine judge bazile peering out at the scene in the courtroom
and maybe he mused on his own mixed marriage and long happy family life. once he and his bride broke through the barriers that their different religious faiths had posed. perhaps the practice trigs leon bazile, even saw in the plebian richard loving, something of a kindred spirit. not bound by other people's rules of love and marriage, not deterred by big challenges in such matters. and finally the lovings' two lawyers. both came on the scene several years in. between them, they put judge bazile in the fix that he found themself in when he had to justify the original sentence. and therefore invented the language we just heard. in june 1963, more than four years into their exile, we could consider it a promise of a fifth wedding anniversary present mildred gave to herself.
she said, i got to get help. she had more than enough. she needed it fixed. mom couldn't do that back then. maybe somebody out there could. who she wrote from her exiled home in d.c. was bobby kennedy in a nearby office in the u.s. attorney general's office. could he help? could the civil rights bill that was in congress at the time in '63, potentially help? and the letter came back, and she, we can imagine her opening it, looking at it, hopeful, apprehensive. reading, no, can't help you. but you should talk to the people at the american civil liberties union. maybe they can help. so short story this is how she comes to know bernard cohen. a very young lawyer who had no experience whatever in constitutional law cases. no experience whatever. of in federal court. no experience doing a whole lot of things. but he had a credician and he was a enamored of mrs. loving. he loved the name of the case
that he saw potentially going to the u.s. supreme court. and though he couldn't see how he could possibly win, he couldn't see how he couldn't, he possibly couldn't. it had to be a winnable case. now he describes how he had to find a key to break through the door. that was locking him out. he found a key, turned out he needed another key. he just absolutely sometime stymied. he's visiting with his old common law professor at his law program in d.c. what drove him to see his old professor was a new letter from mrs. loving. dear mr. cohen. hope you hadn't forgotten us, this has been a year since her first letter. so he's fairly desperate. but he's hopeful. the professor is a wizard, maybe he's got the solution. and maybe he does. maybe he doesn't. but what happens that day is very different. another even younger law student from the same professor, the
same program, who had been off doing battle with the forces of the civil rights movement in the deep south, he was in federal court all the time. he was on the front lines of the movement. he knew immediately what you do, you go into federal court. the two of them teamed up. cohen made the case possible to that point. hirschkoff makes it possible to carry it to a successful conclusion. all we know is that it's summer 1964 and we found new possible way forward. now if we fast-forward to the case itself, we'll wrap back to it. they win, we know that, right? i'm not with holding any vital information. and now they get to live the permanent, the new brick building, central point is their home once again, raise the kids on a farm out in the country. all of these things that mildred
had dreamed about. she's back with her mom and her dad, she's back with her cherished sister in particular. she's back where she belongs. all is good and they live an idyllic existence and it lasts for a grand total of -- less time that they had been married, they thought, before the court said they were. they're heading home, she and her husband and her sister to central point one night. and they got run into. now when mildred described it, the scene struck me. i knew that richard had died at the scene she said about the driver. that he jumped a stop sign so what i gather, that he jumped from the left side, right? but he do your homework. you go to the site and you look at it and say no, that's not where the road is coming in at all, it's coming in from the right, but it's almost head-on. i don't think he jumped the stop sign. i think he never even slowed down for one. slammed in, not quite head-on. mildred is seriously hurt.
richard is dead. they're free to live in central point for the rest of their lives she now is free to live in the house that richard built but without richard. that's the first of the two downers that the film, the loving story ends on. it's designed to shock and of course it does. now, what do we know about the driver? he is charged with dui. and manslaughter. he is convicted of both charges. he is fined for both convictions. there is no jail sentence involved. mildred does take him to court, bernie cohen will be her lawyer in the civil site of wrongful death. she does win. that helps. but it can only help so much. if we think for a little while
about the significance of the court's decision in the case that mildred brought, when the court handed down that ruling, 15 states, including virginia, 15 states plus virginia, my arithmetic falter, still had such laws on the books. it was still a crime by some definition of interracial marriage in every one of those states to get married. as a rule, the rules that virginia had, you couldn't get married in state. but it was the same crime with the same penalty. if you went out of state like they did to d.c., got married and presumed to import that marriage against public policy in virginia. now, suddenly when the court rules it's no longer a crime anywhere. it's not just the lovings who are free to come home, it's any other couple, no mat weather their racial identities, no matter where they live, they can now get married. they can now live anywhere, they can move anywhere. it's not just the crime that
goes away. it's more than that. the court went further and threw out all the related laws. now virginia had to recognize that marriage. of course they were married. now all of the couples who had sought marriage licenses, but had been turned away, could go back. no? so in fact the court could have just done the first of those though things that would be the narrow-gauge ruling and courts often try to take the narrowest, tailor the facts and we deal with the immediate question before us, but we don't reach beyond and beyond and the court was far more ambitious in its rendering of this decision in this case, what the court could have done is not just hypothetical. one of the members of the court, it's always said about the case that the ruling came down from a unanimous court. and in a profound sense, it does. it did. but as the court said, these convictions must be overruled. there's no question about that.
but it was not unanimous in one major material way. potter stewart thought that's all the court should do. and he wrote as he had in another case three and a half years earlier, it is simply not possible for a state law to be valid under our constitution, which makes the criminality of an act depend upon the race of the actor. that's what he had to say on the subject, right? he's going to throw out the convictions, but he does not go off and take down all the rest of it. so even if the court's other eight members ended the opinion that justice, chief justice earl warren wrote, these convictions must be reversed, the other eight took the case much farther. so we review what the court actually did and its immediate and longer-term consequences wirks it was so much more than it might have been, and so much more than has been portrayed in one leading piece of popular culture, well let's look at that. many of you may well have seen the so-called documentary from a
few years ago, "the loving story" probably even here. it tells a captivating story. it relies heavily on two fabulous sets of visual images from the mid 1960s, but its command of the facts is is otherwise limited. thought its sense of history. its sense of historical context, is by no means reliable. the film spends most of its time and this is good, tracking the story of mildred and richard and in the three kids across time. and it can do that through these images. when it reaches the supreme court it does precisely what a documentary ought to do. ever since the 1950s, the proceedings of the court have been recorded. so there are in fact recordings where you can hear the actual argument, the oral argument, both sides presenting their case, their preferred outcome in the case being argued. the questions that come from the justices, and we get to do that, we get to hear it as if we were
there on site at that time. something that cohen and hirschkof were. mildred and richard stayed away, they would hear about it later. but the film does not tell the rest of the story. what was at issue was to how the court might have ruled does not come up. the film rushes the ways in which loving versus virginia was such a breakthrough decision. it even implies the ruling, even though clearly benefitted the lovings, didn't do very much for anybody else. how do we know? the very last line in the film projected on the screen tells us flat-out, that not until the year 2000 did alabama ends its ban on interracial marriage. >> now i'm not saying that everybody walks out of the theater having seen that film convinced that alabama continue to enforce the laws. butky tell you having spoken after any number of screenings, that the question always comes up, it's a matter of deep concern, how could alabama get
away with that? and the answer is easy, alabama didn't get away with that. what do i mean? what we have here is deception by factoid. shock value is a bunch line that distorts what in fact happened. true, the voters of alabama took until the year 2000 to bestir themselves to remove from the state constitution the ban that had been there for a great many years. the ban had been put in the state constitution precisely so no weak-kneed subsequent legislature could come along and get rid of the law. no renegade judge could say it's not in the constitution of the state of alabama, it doesn't hold. you constitutionalize it, you do something real. you make it far harder to change and you also, this is not secondary, you also symbolize your commitment to that position. you make clear how important it
is to you. now, voters in south carolina could have been the punchline to the film. took almost as long. they took until 1998. so they were fairly progressive, they got rid of it two years earlier. but if in fact loving actually had traction. then the constitutional ban in alabama had been a dead letter for how many years? give or take 33. so what actually happened when we look back in the immediate aftermath of loving versus virginia, it took two tracks. cases already in the courts in june 1967, went a very different direction. that they almost surely would have in the absence of loving versus virginia. one of these was a case in federal court in oklahoma. i'm sorry. federal case in delaware. where a mixed race couple had gone to get a marriage license a few months earlier. within weeks of the loving
ruling, the federal court issues its decision in light of loving how can there be any other right, delaware, statutory law, no longer holds. it's been overridden by the supreme court of the united states of america. so the couple gets its license and i meant before i came over here. i was thinking as i drove across the blue ridge. i wanted to see, are they still happily married? but i can't tell you that part. the other case comes from oklahoma. oklahoma is a southern state. how do i know that? it had a law against interracial marriage as late as 1967. there the case wasn't criminal law, either. there the case had to do with a dieing in the absence of a will, leaving property behind that gets contested because some member of the family says you had no valid marriage to begin with. so how could anybody inherit under it? right? very soon thereafter the state supreme court of oklahoma rules in precisely the way that it never had in all the history of oklahoma, it overrides all
previous courts. race had nothing to do with whether or not this was a valid marriage. of course the property can be inherited under it. case closed so here we have two cases already in the courts. neither one of them criminal. had the reach of a loving versus virginia ruling. gone only to criminal laws. these case was not have been affected. but they were in fact deflected in a radically different direction. had exactly the opposite outcome of what they would have had. had loving versus virginia not been handed down. not been handed down the way it was. and in fact not been handed down when it was. but there's more. you've heard in recent past few weeks about local court officials upset about what looked like they might have to do with regard to marriage licenses going to couple these didn't approve of. much the same kind of thing happened, the language employed far as i can tell had nothing to do with religion. it had everything to do with race and it actually had to do
with does local law still govern? whose rules must i abide by? so people conflicted, uncertain about what path they should take. eve seen potter stewart had he prevailed. had his position governed. those cases would not have gone the way they did. what about alabama? florida. the florida case went to the state supreme court. the others all went, and there were a lot of others, went to federal court there the florida supreme court said loving governs the outcome of course this cumming must get the marriage license that they otherwise qualify for. now the vote from the florida supreme court was 5-2. you had to think judge bazile had two clones in florida. they were making no concessions to the new regime. they knew what the laws were.
but the couple got the license in florida. the other cases all were from federal court so let's see now. and again i've lost a page so somebody is going to have to run up here and give me its replacement in a real hurry. but i don't need that, do i? within weeks and scattered over the next several years state after state went the resolution, arkansas, one upper south state, all the others deep south. in mississippi, in georgia, state after state, louisiana, i want a marriage license. i've been told i can't have one. you go into federal district court. those folks have heard the news from washington, d.c. they issue the ruling. the license gets issued. it took a while. the last of these cases i've just outlined, georgia, 1972, mississippi was 1970, arkansas
was 1968. they're scattered over several years it doesn't all end at once. first of all you have to have somebody get a license. then you've got to have them turn back. all we're seeing here are the cases where there was somebody turned back. we don't know as a rule about other cases where that never happened. and then it's got to make its sweep through the courts and sometimes that's fast and sometimes not so fast. what about alabama? now a couple wants a license. what we have here is well, short version is this. i tell it in detail in both books, i'm going to cut along. the short version is this, it's 1970, the very end of 1970. in federal court says yeah, you got to do this thing. the local official had declined. the state attorney general's office had weighed in on his part. we're going to hold on to this thing as long as possible. it turned out as long as possible wasn't very long. but think about the arithmetic
here. how long has is been since loving? something under three and a half years. that's appreciably less than something under three and a half decades. so 2000. deception by factoid. yeah, it's true. it's interesting. but it's not very interesting and it's not very true that it took it until 2000 for the alabama ban to go away. so by 1970, could you get a license. you did get a license. loving rocks. now some of you i know are interested in so what since then we've got what, how many decades now since the mid 1970s? about four. so loving reverberates down through the u.s. supreme court of june 19 -- no, not 19, 2015,
how do we connect interracial with same-sex? it's a very short order for the first same-sex couples going into court seeking to take the logic and language of loving, about the freedom to marry, what a crucial piece of american freedom it was, to argue that it should apply to same-sex couples as well. the first was in minnesota this is 1970, he loses, minnesota says that was mere race. well that's minnesota, you understand. saying that was merely race we're talking about. they actually take that case to the u.s. supreme court. not a wise move all things considered. and there's no way you're going to get the court even to listen to your case there. but there were a number of others from pennsylvania, new york, kentucky, washington state. number of early efforts, i detail the story in various ways. but we wrap it forward down to just the past few years. and along the way, loving continues to come back in. and pieces of it get
incorporated, as central components of judicial rulings that begin to move one jurisdiction or another. at least toward what becomes then same-sex marriage. it's absolutely vital, the roles that loving played. i didn't tell much about this story in my first book that came out in 2002, right? massachusetts highest court in massachusetts hadn't ruled yet. vermont's had. there wasn't much to tell. i didn't tell much. the new book, i had to tell a lot. when i was beginning to finish up that long thing that was going to be the pro log to the epilogue. two chapters i gave to the subject. then a couple of books came out that i said okay, i don't need to carry the full narrative burden. that's out there, i can bare bones and focus loving in a way that's far more streamlined, and i did. a few weeks ago, in fact the day
of the ruling back in june i, i got a communication from the editor in chief of the "daily beast." i hadn't published for the "daily beast" before. i'm not sure how many of you have. but this was on a friday. by monday morning, my 2000-word piece was posted. it wasn't perfect, but i hadn't got one piece right, they hadn't got one thing right on the editing, they hadn't said who i was. i kind of wanted to have that there, too. so we fixed all that. and i wrote up some stuff. that i liked a lot. this next few paragraphs i borrow from that. so this is my thinking well after the bok that we're talking about, that the day it went to press. but all of this is in the first two books. chief justice wrote the freedom to marry has long been recognized as one of the vital personal rights essential to the
order of happiness by free men. sexist. free women, too, okay. vital to. essential to. not negotiable. not marginal. the court used very strong language in that case. but it also when you read it carefully, very clearly tied it to race. that was all they were taking about. the bundle of power that states have traditionally exercised over the institution of marriage. age of concept. first cousins, this is virginia, right? all -- all kinds of things, those got left in place. as subsequently courts would often observe that only race had been taken out of this bundle. so earl warren's court took away race out of the bundle and now the court has gone on to remove gender identity as any kind of impediment to a marriage. if we compare the two that was the burden of the question i was asked in this context, it got me thinking in these terms, in some respects loving, the loving
litigation came at a substantially more advanced, more mature stage of development. and that is simply looking at how many states had signed on to a regime that did no longer restrict marriage on the basis of race. in 148 so shortly after world war ii, the number of states out of 48 that still had such laws were? was? states were, 30. you can't do that with 17 southern states. you can't do that. california was the first, it was a big tower to fall that was a big tree down. the supreme court, 4-3 ruling. 1948 says doesn't pass muster, the way reread the 14th amendment, we can't do that any more, it's gone. and state after state, even such deep south states as south dakota. got rid of their venerable laws.
leaving behind the solitary proprietorship, 17 states. that's all there were. now 24-24 when the lovings got married. that's down from 30-24. it was down to 17 when the case was argued before the court. it was 16 by the time the court ruled in loving. maryland, think about this, maryland actually repealed its law. this is a law that dated back to the 17th century. maryland had initiated the anti-misogynist regime. maryland put it out there that if a white woman marries a black man, the black man was going to be a slave, at that point in that place. she will immediately become a slave and her children will be slaves. and that law was enforced. for a very long time. maryland had led the charge even before virginia, in 1691. even before, decades before.
maryland repealed it. what had happened to maryland? well there is the city of baltimore. there was the voting rights act of the 1965. there was legislative reapportionment because the court had ruled on yet another issue of great important in the 1960s. this combination made it possible for a black female member of the state legislature to propose a bill that got enacted to get maryland out of that mix. that took place shortly before the loving ruling came down. it went into effect june 1. so what's that, 11 days before the supreme court ruled. at that point we're at 16, virginia plus 15. in that sense i think that loving came along in a much more mature point. it was a lot easier to say time to get rid of the outlier states, mop up and make it uniform, nationalize this right. but the recent ruling in the same cases. in obershaw versus hodges.
came at a more the mature time. because the lovings were subject to the term of imprisonment. there's no such penalty. hanging over same-sex couples whether they could marry or not since the year 2003. when the supreme court in an earlier case. so from that perspective, much less was at issue. not in any way to diminish how much still was. we just finished talking in some detail about can you get a license? can you hand property on? all the kinds of things that come with the rights of marriage. but less was at issue in that profound sense of actually losing your freedom to be up and about and free to run around. now i want to think about, i want two more things at some point i'm going to run out of time. since i can't see a clock, i think i have three more hours. two things i want to do. i want to you think with me about some of the things we can come away from the loving story
with. i keep wanting to rephrase that. the story of the loving. so it doesn't get confused with the film. and then i want to come back to the epilogue. to return to where i began. where is the south? i have students at tech who for years know they don't come from the south because they come from northern virginia. but one of the hazards is being a historian. you beam into the past and get frozen there, and you're not sure that there's any other place or time. and for me, the south is precisely those states that still had those laws on those books, as of the beginning of 1967. it's precisely the same states, the same 17 states that still had top-to-bottom segregated systems of public schooling. on the day before brown versus board. precisely the same. it's not like you have to mix and match and see a fuzzy margin. it's the same 17 states. people always want to talk about
the south and they never tell us what they mean by it. so we don't know what they're talking about. okay. the former slave states, don't you love that one? that's when historians get caught in a time warp. it's 1860 and they're thinking about if maryland went one way in the civil war and virginia went another. when i think of the former slave states, i think of massachusetts and new york, all the original 13 states. it's easy to get confused what we're talking about. let's leave that behind and do some real stuff. how unique a place was central point? it was said at the time the case was in the point. central point is this unique place on the planet, nowhere else in the world could richard have looked at mildred and seen marrying material. right? and yet, how many dozens of couples whose stories i told appear and tell the court in a whole lot of others as well, in the latest book. these people clearly didn't see race as a major impediment to
the falling in love and marrying and forming a family and actually staying together for an extended period of time. long enough to become great grandparents, but who's counting. central point to me is every place. potentially every place. and while it's extremely special place to richard loving, and mildred, whether she was jeter or loving, that was their special place, there were lots of special places. central point was not unique. but it gets at my next point about states sew rights, it's carved out as a projector shield deflecting against federal intrusion of authority, right? i don't see it primarily in those terms. judge bazile would have seen it in those terms, and i don't. what i see is state power imposed on the residents, the citizens of a state without any counterveiling authority to intervene to get in the way.
we depend on our state governments to protect us in our life and our liberty and property and where was the state government of virginia when the lovings needed a friend or just to be left alone? so state's rights has a very different place on it when we look at these terms, projected downward rather than outward. interracial marriage, that's not a thing. it's a construct, it's a definition. virginia kept changing its definition. virginia's definition never was the same as georgia's or mississippi's. they all had different ones. so the laws against interracial marriage and the laws that were thrown out by the supreme court ruling in loving versus virginia were not all of a piece. nor did the states ever stay true to the faith that they got it right and they're going to stick it that way. virginia, it was one/eighth black. then across the long 19th century, one-quarter would do. if one-quarter black, you're black. anything less, you're not. the one-drop rule of the racial
identity is the 20th-century invention. virginia inaugurated it in 1924. very shortly thereafter the great authorities in alabama and georgia, but nowhere else said that's a great idea, we'll do that, too. actually oklahoma had come earlier. oklahoma had done this really weird thing where indians are white unless they have black ancestry. everybody is white unless they have african ancestry. everybody is. so virginia kept changing the rules. any place could. state power. let's see now. so tara quichy. he was a japanese born kid in texas in the early 20th century, played football for texas a&m college, a white school. he could marry anybody in texas, except an african-american. in virginia he could have married anybody who wasn't
caucasian. where do you draw the line? who draws it? and what are the penalties for picking it wrong? and then there's the matter of racial purity. a lot of people out there who studied this far better than i can tell us that if we track our genealogical, our family tree back pretty far, eventually we show up in africa. all of us so what's of african ancestry mean? some years ago the great historian of science steven j. gould came to campus at tech and in the biggest auditorium we have there, he told his stories. in the aftermath, one young man in the middle of the audience stood up and he had a question. he wanted to interrogate steven j. gould, couldn't he realign his facts in such a way that his great-great-greats couldn't come from africa? gould said he couldn't draw his family tree in any other fashion. of african ancestry is ofself
this marvelously problematic construct. we're all crazy. trying to think of these things, trying to get your head around these things, one after another these constructs just drive you mad, as most people who know me well tell me that happened a long time ago in my case, and here i am trying to bring you along by introducing you to some of these complexities. mildred when she died was a black woman. we know she was black because the state of virginia had said she was black. and she never denied it. she was black. so colored becomes negro, becomes black, becomes african-american. what you have there is the one-drop rule of racial identity avidly embraced by everybody on the planet. including every historian and journalist you ever came across. mildred declared herself an indian, she said i'm of negro and indian ancestry. what are we to think about this? here is the iconic woman in the
supreme irony of her post life she gets to be the one person on this planet who more than any other took race out of the equation as the way to identify somebody with the kind of life-changing prison imposing power to con tort people's lives on the basis of their race, she more than any other took away from state governments the power to do that kind of thing and she can't even identify herself now? so here's my thought on this matter. walter pleker, don't mention his name in the presence of native americans in virginia walter pleker, one of the key proponents of the racial integrity act and the chief enforcer of it in the long public life that followed in his public capacity, he would be aghast at what the supreme court of the united states did in 1967. and yet he might take comfort in the fact that under his rhetoric rules, he lost the battle of the
courts, but he wins the war of the rhetoric. his language lives on. it's been changed over. and still a binary world and somebody else gets to decide who you are. are. great. civil rights, political rights, social rights. historians of reconstruction know that that is a central way to distinguish activist descendants of that generation in the 1860s and the 1960s knew that they were all the same and they were all inseparable and they were all crucial and they all came under the category of civil rights. but it's a false construct to project on to the 19th century, the notion that everybody agrees to that because otherwise, how can we explain that six of the seven original confederate states repealed or their state courts overruled or both any laws they had against
interracial marriage for an extended period no such laws prevailed that that was primarily a northern phenomenon for a period. is that weird or what? and what i especially like is not only that judges and legislators believed that all the rules had changed on race which turned out to be true only for a time, but it was true for a time. so did all those citizens who did not see race as the great impediment as to who they should see as marriage material, right? they went off and got married and some of them got busted and some of them took them to court. some of them didn't. some of them spent ten years in the state penitentiary or ten years on the convict lease system. but they knew they could do that, it turned out they were wrong, but they didn't make those distinctions that often get imposed. what else do i have for you?
i've got one more, i think. then we'll get to the epilog before paul turns off -- or sam turns off the mike. government of the people, by the people and for the people shall not perish from the earth. abraham lincoln, gettysburg, 1863. a hundred years before mildred loving wrote her letter to bobby kennedy. now, lincoln was expressing a hope. he was expressing a fear. his rhetoric suggested that this was already in place and was in jeopardy of being lost. what i see is this had never been in place and was in promise of coming on stream. if we don't tee it up as one word, separate, but equal as one word, if we treat them as separate prepositions, then what we have here is government of some people and by and for other
people and that's the horror story for the people on the of category, and what lincoln voiced was the dawning of an age where it was just possible, perhaps, to bring into alignment those three prepositions. so the same people that would be subject to the rules that they were passing would be those who made it, and no escape. we agree on what those rules are, all right? it has taken an extraordinary struggle over a great many years by a huge number of people to bring in to relative alignment those three prepositions. who did it anymore than mildred and richard loving bringing the case that they did. i like that. so now the epilog promised to get there eventually, right? first thing i saw before i ever got to caroline county for the funeral was that the cedar brooks funeral home had an electronic bulletin board and
messaging system and you could put up testimonials to see and i'm one of the people who saw them, and i took them all down. i love them. and i'll share a few with you. so some of the things that people had to say at the time that helped us understand perhaps a lot of people when she died saw her and how we might see her. from one family in florida whose member his spoken to mrs. loving on numerous occasions and who knew they were carrying on the separate conversation with people we didn't even know about. her strength and fortitude, this is her language to persevere and stay true to her heart despite huge obstacles show she's truly an american icon for civil rights in america. mildred's name will be synonymous for history books for generations to come toward a true pioneer to creating a color blind society. from a writer in virginia came a statement that she did not know personally mr. and mrs. loving,
but i feel i owe them both a deep gratitude. my husband and i are an interracial couple and are going stronger and stronger each day going on 19 years of marriage. how many people can say that? >> as my mother once told me, my husband is the best thing that ever happened to me, this from a woman who grew up at the time that the lovings were busted and who at that time would have believed as the judge did that this was not appropriate behavior. from glen allen, not so far away came a similar note that it was their strength and courage they love today is my husband. it was mostly women writing in about the death of this woman. that was striking. mostly not by any means only, from roanoke, my part of the world, i guess i owe my whole life to her mother. i, too, live in virginia and i did not know until i read your mother's obit that it was against the law to marry out of
your race. wish i had known of her before she passed. just wanted you to know you are in my prayers. here's another, because of their courage my parents were able to marry in virginia in 1968. my mother, black, my father, white. my parents truly had a love story of a life -- a love story of a life and my father was tragically taken at a young age and my mother never remarried pledging her love only to my father. georgia, your mother made it possible to love and marry who i choose. louisiana, your fight has made my parj possible. from florida, my husband and i would not be together had it not been for middle reg making it legal. my husband and i can also be married here in the south and some wrote with recognition that though i did not take the loving decision to open the door to their marriage in their home state, nonetheless, it freed them up, too. here's someone from new york writing i cannot imagine living in a country where my husband
and i could not freely move as a married couple, yet that could not have been the case had not mildred loving and her husband protested an unjust law. three scenes, one on the road from the church that is to say that auditorium at the high school that mildred loving had gone to, to the cemetery to st. stephens baptist. the most striking occurrence i saw, and the procession passed the home of the volunteer fire department and out in front, a fire truck with lights blazing three men, apparently white, standing there at attention as the vehicles came by. it turned out that peggy's son mark, mildred's grandson was a volunteer member of the fire department there and the trio were paying tribute to the local hero and the cherished grandmother of their friend and colleague. at the cemetery, after a bit,
suddenly i saw five people drumming and singing as a rap hanoch virtual accompanied mildred's passing into the spirit world. the three men sat drumming and singing and the two women stayed behind and also sang. one of the two women, the chief, came over to the rested of the crowd by the stone and said some people might deny mildred loving her heritage, but she had always been and would forever remain a member of the rapahanock nation. after that i went back to the town of bowling green and stopped by the courthouse and the skanky old jail that mildred had been terrorized in for several nights. no longer in use, and there is a monument out there with language to the effect that mildred loving who along with her husband richard helped strike down laws prohibiting interracial marriage in the united states. it took a tremendous effort, two
of the people in the party told me, about their sustained efforts to get that language put on that mono ument and there it remains. i'll wrap up with testimonials and go back to the electronic bulletin board. again and again, people said things like this, from bedford, what a beautiful love story, mildred and richard together again. from richmond, nearby, can't no court system separate them. that's my favorite. can't no court system separate them now. and from maryland, much the same, now no man or court can ever break that union. from wisconsin, middldred is no with her true love and no one can keep them apart. they will love forever more. rest well, peaceful warrior, you are now reunited forever with the love of your life. thank you. [ applause ]
>> we will take a couple of questions and there are microphones and the first one back there. >> yes, sir. an important and timely story. my question is you spoke of states, many states that had such law and such racial integrity laws. how vigorously were they enforced and particularly as white military veterans, for example, came home with asian spouses? >> i love that question. the rules clearly varied and i didn't tell you about the california law where it was not a crime to be married internationally by whatever definition, you couldn't get a license, but if you took the train up to seattle, washington state had no such law. you could get married there and
bring the marriage back. so the crime part of it wasn't there, but you'd still be subject to the potential civil liabilities, right? states varied each as to whether they criminalized whatever they defined as interracial marriage, but the laws were pretty uniform in criminalizing it and putting serious penalties attached to any violations. the question is to how often these were enforced that the fabulous question. i know someone who has taken up the stories and pursued where such cases came from the court and she tried to find in each case what was happening in the local community. what was it that was held back as a potential weapon brought into play only when you got really seriously unhappy with somebody, right? and mildred voiced the notion and richard did, too, but we never knew who fingered us, right? so hirschkof knew about the
racing car operating with two men of color and maybe the judge had a racing car himself and richard said beat him. who knows about these things? one answer to the question is clearly that these laws were not always enforced. there's no question about this. you could have people who live forever and ever and ever and suddenly the law hammered them or someone who paid the penalty, then came out and the next census shows me, this is the 19th century and they had two more kids the last time and no one appears to be bothering them anymore. >> so it was a tremendous patchwork not only of laws, but enforcement and the last question about military personnel. i love it. it's fabulous and nowhere can i find anywhere in the literature about such family's experiences. does it occur to anybody this is an interesting question? but here's a story. >> wheel all of the cases in the courts and the lovings are
contesting for their freedom, a young man who grew up in south carolina, caucasian, having come out of the navy or maybe still in the navy, not sure, but he met a young woman clearly of japanese ancestry, they get married in caroline county and they live to this day in northern virginia. so i'm using the book -- does he get a bye because he's not a local guy or because he's in the military or a veteran? does she get a bye today because she's not african-american and again, not local? so we don't know. what we do know is that a lot of people got busted, and a lot of people didn't or it took a long time for someone to get busted and others who have been then they got left alone. it's just -- it's one of the functions of terror you could say that you're subject to a rule that maybe you know about, but you never know when it's going to hit you. and what loving versus virginia
did was to take away that terror. no longer was that possible, nobody could come and get you in the middle of the night. how about that? >> you made me curious when you gave judge potter's decision. i don't know anything about the law and never been involved in it, but i do know one thing. i know courts have jurisdiction and they've been given the jurisdiction by some authority and apparently to the best of my knowledge the supreme court gets its authority from the constitution, and i was curious what while judge potter felt he had gone as far as he could as far as the authority given to him under the constitution, there were other judges that felt differently and where did they get their claim that they could go beyond that particular jurisdiction? >> well, first of all, it's
justice potter stewart who is putting this concurring opinion. you could argue it's possible partly dissenting and partly concurrent, and it's not presented as a dissenting opinion. that's my construct. he took the approach that i suggested judges typically do in cases where they only need to go so far to make the decision and so that's as far as he saw it, it's imperative that he take the ruling. what is a brethren all saw was that they did not begin to touch the case. for example, the lovings would, if you simply took away the criminal component that related to race still would be an unmauried couple living in virginia and would be subject to cohabitation that had nothing to do with sex. to take that as a short answer to the question. the whole panoply had to be brought down. so the marriages, there could want be a question of doubt as to whether they were valid
marriages regardless if there was a criminal pom component. it's not written as elegantly as it might have been, but it's a powerful statement that gets the job pretty well done and they were ruling it in a way that they thought it's time we got rid of all of this stuff and to their mind it was a whole package and they had to deal with it all at once. it wasn't just the criminal components and it had anything to do with race, marriage and law and everything had to go. >> i'm still confused. >> yeah? >> the question i really had was that the authority they get is from the constitution. >> that's true. >>. >> what portion of the constitution did they use to make their decision? >> i misfired in one respect. let's bring the 14th, mendment for the centerpiece. the equal protection clause is
quite clear in the 14th amendment in his language. exactly how you translate that to a given situation is all that's at issue and what they saw was there was no way to read the equal protection clause and they hammered on both sides. these people are being denied their freedom without due process. their authorities as members of the supreme court of the united states is to take their best judgment as to what the law is and apply it to the situation at hand, and what the lovings did was bring them the occasion that permitted them to do just that. that's the best i can do for that now. >> one final question. would you comment on the recent voting restrictions that virginia, texas, north carolina have all recently passed and what's going to happen about them? >> not really. [ laughter ] >> the 15th amendment is still
in play. the voting rights act of 1955 is still in play and a fairy recent ruling by the u.s. supreme court does not provide a whole lot of room for comfort that restrictions, they get embellished in whatever fashion are ready to be dispatched, but we don't know. this is one of those things where the music is always playing. so you find a new way to restrict access to the electorate. you can't do race, so you use poll tax and use a euphemism and the court says that's cool, great idea, let's do that, too and that was in the 19th century and things haven't changed that much. the judge's world lives on. [ applause ]
american history tv in prime time on c-span3 continues tonight with our original series, landmark cases. at 8:00 eastern miranda versus arizona, a 1966 supreme court decision requiring police to inform criminal suspects of their rights before being questioned. >> next week at 8:00 p.m. eastern on c-span3. a civil war special featuring american history tv highlights. on monday, we're at the emerging civil war blog symposium where we look at the great defenses of the civil war including gettysburg, antietam, and the civil war seminar with talks on
generals robert e. lee, ulysses s. grant and con federal colonel john mosby. wednesday through friday we're at the gettysburg civil war institute conference. wednesday features lincoln's scholar herald hoser and on friday, we conclude the conference with author t.j. stiles. american history tv's civil war special all next week beginning at 8:00 p.m. eastern on c-span3. lewis brandeis was the first jewish supreme court justice serving from 1916 to 1939. up next, we'll hear from a professor at american university who also wrote a book titled "lewis d. brandeis: american prophet." [ applause ] >> justice kagan wears many hats this evening. we are very grateful to
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