What if the Court in the Loving Case Had Declared Race a False Idea?

What if the Court in the Loving Case Had Declared Race a False Idea?
Editorial Observer
By BRENT STAPLES
MARCH 6, 2017
The New York Times


Mildred Loving greeting her husband Richard on their front porch in Virginia. Credit Estate of Grey Villet


Gov. Terry McAuliffe of Virginia struck a resonant historical note last year when he proclaimed June 12 “Loving Day,” in commemoration of Loving v. Virginia, the 1967 Supreme Court decision that invalidated state laws across the country that restricted interracial marriage.

That Virginia would celebrate the decision was symbolically rich, given that Richmond had been the capital of the Confederacy under Jefferson Davis and the seat of a virulently racist legislature that diligently translated white supremacist aspirations into law.

The Loving decision turns 50 this summer, which will give the annual festivals, picnics and house parties held in its honor a special gravity. But the recent re-emergence of white supremacist ideology in political discourse lends an inescapably political cast to this celebration of interracialism.

As this drama unfolds, historians and legal scholars are criticizing aspects of the Loving decision, including the court’s failure to repudiate the myth of white racial “purity” upon which Virginia’s statute was based.

The case began in 1958, when Richard Perry Loving, a white man, and Mildred Jeter Loving, a black woman, were dragged from their bed in Caroline County, Va., and jailed for the crime of being married. The two were prosecuted under the Virginia Racial Integrity Act of 1924, which made it illegal for a “white person” — defined as a having “no trace whatsoever of any blood other than Caucasian” — to marry anyone other than a “white person” of the same description.

Passed during the eugenics hysteria of the early 1920s, the law was one of several attempts by Virginia’s lawmakers to draw an impossible line between the races in a society where interracial sex and biracial descendants had long been common. (In 1630, for example, a man named Hugh Davis was publicly whipped for “defiling his body in lying with a Negro.”)

Colonial-era court records are filled with crimes related to interracial sex and fierce debates about the legal status of children born of interracial unions. The race mixing reached a peak in the mid-19th century, when it became inescapably clear that plantation owners were holding their own children, siblings and cousins in chains.

When the Integrity Act was enacted, black ancestry was widely dispersed in the ostensibly white population because many light-skinned black people had passed as white.

The statute, in trying to weed out racial pretenders, required white marriage license applicants to submit themselves for inspection by a court clerk and certify that they had no Negro blood.

Richard and Mildred had married in Washington D.C. But had they actually sought to wed in Virginia, Richard, who had grown up in an area known for its mixed-race families, may not have been able to make such a declaration.

Despite this messy reality, the state’s prosecution of the Lovings was based on the presumption, long disproved by social science, that there was indeed such thing as a “pure” white race to protect. Chief Justice Earl Warren saw through this and clearly recognized the distinction between race as a social category based on a person’s physical features and race as a scientific fact. He declined to embrace the second idea, and referred at one point to “racial categories” and “so-called” races at another.

The lawyers involved in the case, in arguing that the marriage statute should be struck down, ridiculed the idea that “pure races” ever existed and denounced as abhorrent claims that intermarriage with African-Americans produced mentally or emotionally defective children.

One of the lawyers also reminded the court that Virginia’s definition of what it meant to be black had shifted over time in ways that defied rational explanation: In 1705, he said, a Negro “was a person with one-eighth or more Negro blood and then in 1785, it became a person with one-quarter or more, and it went on and on.”

It wasn’t until 1930, he said, that Virginia finally arrived at a definition in which a Negro was someone with any traceable Negro blood.

Chief Justice Warren quizzed Virginia’s lawyer about the falseness of the racial purity claim, yet he veered away from it in his decision for the unanimous court. While the decision acknowledged that the law was written in service of white supremacy, the court found that the statute violated the equal protection and due process clauses of the Constitution by preventing marriage based solely on person’s racial classification.

The ruling affirmed a concept that should have been self-evident — that the freedom to choose a marriage partner rested with the individual and not with the state. The declaration of the right to marriage as a fundamental right would later form the foundation for the expansion of marriage equality to gay men and lesbians.

The legal scholar Dorothy E. Roberts argues that the court had all the evidence it needed to find that the racial claim underlying Virginia’s law was scientifically invalid — and so arbitrary as to be unconstitutional — and that the justices missed an opportunity to refute “the validity of race as a biological category.” Had the court taken that approach, the Loving decision might well have been a more enduring strike against white supremacy — and changed the way the country talks about race.