Mildred Loving and Richard Loving | The Story of Loving vs Virginia With Peter Wallenstein

This week I spoke to Professor of History at Virginia Tech Peter Wallenstein about the relationship between Richard and Mildred Loving – a love story that went all the way to the US Supreme Court as this ordinary couple fought to be recognised as man and wife and in turn decriminalised interracial marriage in America.

Holly Smith: Hello, and welcome to Past Loves the new weekly history podcast the looks at affection, infatuation and attachment across time to bring you the lighter side of history and a touch of romance to daily life. I hope that you are doing well. Today is the penultimate episode in series one of Past Loves, which frankly has gone so, so quickly. I can’t quite believe that we have got to this point. To celebrate the end of this season, be sure to listen to the end of this episode where I will reveal the giveaway that I will be running over on my Instagram in the next two weeks with publishers Pen & Sword. Today is the most recent love story that has been told so far with 1967, the landmark year in the relationship of today’s couple. Now, in 1967, The Beatles released the number one hit All you need is love. The Graduate graced the big screen and 100 Years of Solitude by Gabriel Garcia Marquez hit the bookstands. Then it was also the year that the Supreme Court ruled state bans on interracial marriage were unconstitutional, a decision that made interracial marriage legal throughout the United States thanks to one couple, Richard and Mildred Loving. Their love, quite literally redefined the Constitution of the United States of America. To discuss their love story, I’m joined by professor of history at Virginia Tech, Peter Wallenstein. With particular research into the civil rights struggle in Virginia, he has written two books about the Loving’s case within the timeline of laws around interracial marriage or anti miscegenation laws, as they are known, the first being Tell The Court I Love My Wife, and then more recently, Race, Sex and the Freedom to Marry Loving v. Virginia. What I particularly appreciated about his most recent book, Race, Sex and the Freedom to Marry is the way in which he contextualized their story and the court case within the timeline of discrimination. In the introduction of his book he poignantly writes “the story of the Lovings is captivating precisely because it is a love story, set against impossible surroundings, something of the Capulets and the Montagues in William Shakespeare’s play Romeo and Juliet. Moreover, its historical significance makes it a story worth knowing.” He also spoke to me a little about his interactions with the 2016 film Loving, which he references time to time throughout this interview, and which I would highly, highly recommend watching. It’s fantastic. With this today, we’ll be delving into the relationship between Mildred and Richard Loving, a love story that ended up at the US Supreme Court in the fight to dismantle one of the last vestiges of segregation.

Welcome, Peter, and thank you for joining me today.

Peter Wallenstein: So happy to be here.

Holly: So Richard and Mildred’s experience didn’t happen in a vacuum and I think to understand the gravity of what happened it’s important to look at the other examples of couple’s who fought for their right to be together because there were some laws that prohibited interracial relationships. Would you mind just setting the scene, the historical landscape for us?

Credit: Free Lance-Star, via Associated Press via The New York Times
Mildred & Richard Loving with their children | Credit: Free Lance-Star, via Associated Press via The New York Times

Peter: Okay, that was like our first two hours. So way back in the colonial period, when there was no US and these were British colonies, belonging to some little island across the pond, already, Maryland and Virginia, by the end of the 1600s have passed laws like this, and they were truly draconian. The Maryland one went even more so than the Virginia one. The Maryland one said, if a white woman marries a black slave, she becomes a slave in effect, and her children are slaves. She stays a slave as long as her owner is alive, but her children stay slaves. And so I found stories that rattle down through the generations. I mean, for the next hundred years where people because the mother was a slave they were born slave – how t breakout of that? So there is this constant struggle that just kept coming to people from the 1600s through the 1700s, through the 1800s and through much of the 1900s. I found these stories everywhere across America, it wasn’t simply in the south, it wasn’t simply a one set period. And some people just got ground up. Other people escaped free. Nobody ever challenged them. Some people won some people lost when they challenged. Mildred did both – she lost and she lost and then she won and that’s the one that counts. It took a long time coming. So these laws that were designed, what were they designed for? I mean there are two major ways I think to see it, one is in terms of male prerogative, white male prerogative, who should have a franchise on white women definitely have a share of black women. They should have access to anybody they want. Black men on the contrary, should have no such access to white women. So partly it’s a sexual, gendered, power kind of thing that animates this and part of it is property. You can control access to property, then you can maintain your power in a way that economic reinforces the political, the political reinforces the vehicle for all these pieces for social and so on, fit together. The rules kept changing. They didn’t stay the same. They varied from state to state and from time to time. And I think in both my books on interracial marriage, I don’t even have a category in the index for interracial marriage accept in so far as to say definitions of. I’m not according it privilege of being a real thing, but it’s simply how it was defined in different times and places. And that’s the tricky piece of business. I mean, Mildred, for example. She really identified far more Indian than any other way. But it didn’t matter to the state.

Holly: No. How did the state define race?

Peter: Well, this is the critical question, isn’t it? Because if your going to say people who are classified as white you can only marry people who aren’t classified as black. Hmm, of course, you’ve got all kinds of in between people, then you have to figure out which which box to drop them into. The major pieces of the law on which the Lovings found themselves in trouble dated actually back from the 1870s. Everybody wants to say it’s from the racial integrity act 1924. But that only redefined the races. It didn’t redefine a crime, or how you got to be a criminal if you tried to import a marriage that was already illegal if you hadn’t contracted in the state. The penalties were pretty much the same. These were not big changes, the big change if there was one, and it really did get people who are less black, is that redefined white. It made it much more difficult to be defined as white. And it wiped out of existence people who said they were Indian. It said no, you can’t be Indian. If you’re Indian, we know you’re part black. Therefore, you’re black, and we’re just going to create this all purpose category ‘coloured’. So it did not matter to the state how Mildred defined herself, how she saw herself? She was a coloured woman. Richard was not a coloured man. Therefore they could not legally married.

Holly: Yeah, and when they did marry in 1958, how many states still upheld the anti miscegenation laws?

Peter: At that point there were 48 states – Hawaii and Alaska hadn’t come in yet – 48 they were split exactly even, 24 and 24. Just a few years earlier, it had been as many as 30. But states outside the South had begun pushing toward repealing these things. A lot of states outside the south still has such laws. They didn’t necessarily say you can go to the prison for five years, sometimes 10 years – Indiana had that. California didn’t make it a matter of crime so much as you couldn’t get a license to marry. Couples would run up the coast to Washington State, go to Seattle get married, they’re bringing the marriage back. So clearly the rules varied enormously.  The Lovings could not do that.

Holly: So you mentioned that Mildred defined herself as mixed with African American and Native American ancestry. What was her family like? What was her upbringing like?

Peter: Well it’s a fascinating family. There’s just no question about it. I mean, Caroline’s a special place. But I tried in my book to suggest that it wasn’t unique because to go back to your earlier question, the official rules were very clear often, but then didn’t mean that unofficially, they were followed. So here you have the state reaching in in a way that the local community hadn’t bothered. Her mom was her dad’s second wife, his first had died. So she’s got two sets of siblings – one barely much older. The family background is difficult to track with any absolute certainty. But there’s no question in my mind that some people back some generations before the Civil War, before slavery was said to be over, were clearly free. And while their racial identities are not necessarily clear, there are all kinds of clues that suggest that an Indian identity was not in any way unique to Mildred in the community or in fact, in her family. There’s a big farmer in the area of Central Point, which is where Richard grew up. It’s not where Mildred grew up. Richard worked for this guy as a 10/12/14 year old back in the 1940s, during World War Two and the like, he’s variably described as binary world he’s got to be black or white, right? He didn’t understand that he was black or white. He knew that he was Indian. So here you have a white kid working for an Indian man or a black man. Either way, that’s not right. Black folks work for white folks, no matter what the age or the gender. So she grew up in a big family. And it’s a really happy family. Richard grew up in a very small family and I think was much more emotionally pinched. Mildred had this really rich life that you, you actually get a glimpse of in movie Loving. That’s one of the things that is depicted I think there’s some considerable veracity.

Holly: Yeah, and I completely agree. There’s a real warmth to her family.

credit: IMDb
Ruth Negga as Mildred Loving in Loving (2016) saying goodbye to her family | Credit: IMDb

Peter: There was tremendous warmth. Now one of my favorite images in the movie – one of the few times there’s only one other that comes to mind where Richard is truly happy – he’s a black kid in a mixed family, right there around the dinner table. They’re having this uproarious time. They’re talking about racing trophies, they’re talking about all kinds of things and he’s just in his absolute element. He doesn’t know he doesn’t belong there. He doesn’t know he’s a race trator, he doesn’t know he’s going get into deep, deep trouble for having forgotten who he really was. Because he knew who he was. But it wasn’t what other people sometimes insisted that he be.

Holly: Yeah, yeah, absolutely. And it was through the family that he met Mildred, when she was quite young.

Peter: That’s right. Well remember she has these older brothers. They don’t have to be a whole lot older, but they can be five years, 10 years or even more. And it’s a little unclear as to just what the mix of attractions was between him and the brothers. At that point, it seems to have been primarily music, the images of them as a team in some fashion he was people who clearly were white running drag races, that scene has got to come from the 1960s. It cannot be from the 50s because the person who made all this filmage which possible Hope Ryden back in the 60s, was effectively living with the couple for an extended period. She spent an enormous amount of time and so she’s the one gave us all this rich footage that permitted the movie to be as reliable as it could be. And we should know that it is when, when Ruth Negga says something and she says it the way she says it. We know Mildred said that and we know she sounded like that, because we see her on Hope Ryden’s film in the 60s.

Holly: Yeah, she’s got the voice down so well.

Peter: Oh she does. That’s amazing.

Holly: I was so incredibly impressed. So yeah, in the 1950s, Richard is around the family. At some point, they move into more than just the little sister who’s around.

Peter: Mildred becomes something less than a 10 or 12 year old annoying little sister.

Holly: Yes.

Peter: She appears to be this elegant, attractive, enticing, gorgeous young lady. And yeah how could he not?

A little more about Ruth Negga as Mildred Loving in Loving (2016)

Holly: Well that’s true. I love this story that she’s referred to as stringbean and then bean by Richard because when you look at photos of her, she is so elegant. And just, well not stringbean like, but just she has such an air about her. She’s so beautiful.

Peter: Well, I remember meeting her and being taken with how tall and regal she was.

Holly: Really, things start to change in 1958 

Peter: They sure do. 

Holly: So what happened in 1958?

Peter: Well, Mildred realizes she’s pregnant. That’s in fact, the the opening scenes in the film. So it’s a great place to begin. And a couple of things about political culture in America, not just in America, but certainly in this part of the world back in the 50s. I remember growing up in that period, and where two people were going together, and she got pregnant. Well that was the signal to get married. Until that point, it wasn’t a live question, but I guess now it’s real, and we should do something about it. So that’s part of it. But it’s also a crime, to have sex outside marriage. That was still true, probably in every American state. And again, lots of other places as well and that’s pretty clear evidence that you’ve had sex if you’re pregnant. 

Holly: It’s a sign. 

credit: national portrait gallery, Grey Villet
Richard & Mildred Loving by Grey Villet, 1965 (NPG, © Grey Villet) – I would recommend listening to this podcast with Sheryll Cashin which features this image

Peter: So as Mildred said, one time, Richard seemed to think ‘we’d be alright if we got married,’ but he thought ‘we’ve got to go to DC to do it.’ Now, she never expressed any certainty as to why he hesitated about doing it locally. But in DC, there’d be no problem.  There’s no law in DC that in any way restricts to people, regardless of their racial identities from marrying. What they didn’t know is that when they cross the Potomac River back into Virginia, with the conceit that they could bring that new marriage with them when they came back. That was exactly the problem. So he thought they would be all right. He never understood I think throughout his life. I think he never understood that that was precisely why they were busted. Precisely because they went out and made it legal. When they formalized it suddenly they did something that had they kept it informal. What’s the big deal? Any white guy can make out with any black girl.

Holly: Yes, privilege plays a big role in this. So they were married on the second of June in DC. And then they were living at their parents…

Peter: …her parents…

Holly: …through the rest of June, through some of July, and then on the 11th of July 1958, they were arrested.

Peter: They were interrupted in the middle of their sleep.

Holly: Yes. 

Peter: So you got three thugs breaking through your door, with flashlights in your face. You’re trying to figure out what’s going on this is this does not bode well. You’re blinded by the light and then you’re challenged as to whether you have a right to be there. Mildred’s thinking ‘this is my house, I’ve lived here all my life’ and Richard saying ‘I’m married to this woman, what’s going on?’

Holly: Yeah, it must have been so scary.

Peter: Absolutely. I mean, this is an extended moment of terror. And it doesn’t end when they get taken off to the jail. There Richard is terrorized in the sense that his masculine identity is clearly challenged. He’s unable to protect his woman. And her identity, she is terrorized much the time. She’s there bereft of any kind of companionship or protection. She’s overtly challenged or threatened by the jailer. She’s on her own in a way that she never had been. She thought she’s moved from one cocoon to another cocoon and hadn’t forfeited the first one. She moved to the second and now she’s bereft of both.

Holly: and heavily pregnant.

Peter: And yeah, by this point, she’s what about five months, maybe six months. 

Holly: Yeah, 5/6 months. 

Peter: And the additional terror that would have descended upon both of them is this when they came to realize that this was a felony, that was going to bring them to prison for at least a year, the law was pretty clear about that as long as five. They’re going to be separated from each other. Again, he’ll be unable to protect her, she won’t have his companionship or protection. They’ll be separated from this new kid this baby. So the terror doesn’t go away, or even recede really, until the trial which takes place soon as the arrest. Then three months later, Donald comes along and then three months later, is to trial and exile. And the exile is immediate, the penalty is you leave the state and you leave the state now.

Holly: Yeah, so if we just talk a little bit about the trial. They initially pleaded not gulity but then how did the trial proceed?

Peter: Well, we don’t have any record of what actually happens. So the detail is missing. And I have to imagine it. So they’ve got a court appointed lawyer. This is before American law required that but they have this. And he’s a dude. He’s in his 60s, as I remember, he served several terms in the state legislature, he’s really well known quantity. And he and the judge would have gone back for just years and years and years, they would have shared the same worldview and much of the same kinds of professional experiences. He knew what he was doing. And we have to infer how it worked that what happened was that they shifted to a plea of guilty as part of a plea bargain. Right? 

Holly: Right. 

Peter: So at that point, they’re not simply saying, okay, you throw the book at us. They’re saying, okay, so we understand the conditions attached to we’re going to have to leave the state. At what point they would have known that? Would they have known that when they went into the courtroom? My guess is chances are but I don’t know that and it really changes the psychology. My own image of the courtroom is this that the bare bones would have to have the two defendants, the prosecution, the lawyer and the judge, but I envision other people. I envision her folks both there. They’ve actually got two kids. And so I envision that dad is looking after toddler Sidney, and the mom is cradling infant, Donald and the judge is looking at this scene and saying, ‘Yeah, I’m required to do this thing. I’m certainly authorized to do this thing, but why do I have to do this thing?’ And so he does the least possible thing. One of the many writings on the subject says he threw the book at him. He did no such thing. Right. I mean, it’s not an easy penalty. But it goes back to 1691 between Very first law, you get exiled. There it was the white party that would get exiled. So this is not new, but it’s an innovation that he had to create a new because I’m not sure he would have known about 16. He just had to find some way out. These people cannot be in most jurisdiction. The rules and my own beliefs do not permit me to let them go. But no, can I find discretion? He had none. But he found some. Yeah. So he’s looking at the scene and he’s saying, ‘Look, why do I have to do this thing?’ Of course, he doesn’t have to say that if we reimagined that the conversation that already taking place earlier, but we don’t know. It’s a terrible scene. Mr. and Mrs. Loving, the whole question is whether they are right? But they think they are. And they’re there where they don’t know when they’re going to see her folks again. They don’t know when they’re going to see the kids again. They don’t know when they’re going to see each other again. Every thing is at risk. 

Holly: Yeah. It’s utterly heartbreaking because it must have been so scary with two children knowing that you were risking ending up in a penitentiary for however long Judge Bazile decided.

Peter: And the range was clear minimum one maximum five.

credit: IMDb
Ruth Negga & Joel Edgerton as Mildred & Richard Loving in Loving (2016) | Credit: IMDb

Holly: So I’m always thinking he gave them a year sentence, but that if they left the state they didn’t have to serve it.

Peter: That’s right. Now he broke his discretion twice because he sentenced them to the local jail. That was not what the statute required. It was they were going to go off to the State Penitentiary. But they’ve got to leave the state. You got to leave the state promptly. And you cannot come back in the next 25 years together, or at the same time, so that left some space where she could come back and see mom or dad or or beloved sister.

Holly: But in general the family had to pick up and leave everything that they knew.

Peter: The only world they’ve ever known, right? The only world they’ve ever known. I mean, Richard is quoted as saying something about how things were pretty relaxed where he grew up, and in some respects some in racial terms in some respects that’s true. But he would not have had much frame of reference to come to this conclusion. Both of them have lived this entire world is backward a part of a remote rural county. Beyond as I put it, beyond the paved roads beyond the yellow line in the middle of the road, beyond all of that. 

Holly: So they move to DC and that must have been such a culture shock. 

Peter: Absolutely. All these people, all these buildings, all these strange folks.

Holly: Absolutely – all this noise!

Peter: All this noise, sirens all night long. I mean, all kinds of things. A whole new set of sources of terror. 

Holly: Yeah, so the only kind of link they have is that they go to Mildred’s cousin. They go to Neal Street in North East Washington. And what was life like there as a family?

Peter: Well, you what you see depicted in the film is quite different from what I saw when I stopped – you know, I tried to go to all the scenes where things happen best I can – and these are fairly big houses, set back a bit. So it’s less of a noisy, crowded urban environment that you’ve seen the movie, but still, it’s a long way from home. And Richard says, ‘How am I going to support my family?’. Mildred says ‘How am I going to keep my kids from running into the street?’. And all these kinds of things.

Holly: Yeah, I mean, it just the cost of living there and moving, trying to get back to Virginia when they can and difficulties in finding sustained job was a real struggle for them?

Peter: There’s no question it was an emotional struggle. It was with this financial struggle. It was a social struggle. They were away from everything they knew. They had been exiled – one year, then another year. And Mildred said one time by how they’ve gone back for Easter. They had some kind of notion that they could do that disabused of it, and then they got us again. The movie has to come up with some kind of way to contrive their way out of that. And, you know, it’s not the kind of thing that Mildred and I talked about, but how do they get away from they clearly broke the rules, right? I mean, they could have been simple sent off to prison right there. And yet they came back other times as well.

Holly: Yes, the lovely little video where Richard said, ‘it wasn’t the first time we’d come back’ – just very matter of fact. They were exiled and it was horrific. But they didn’t seem to kind of fully comprehend what the rules were and what the rules weren’t. 

Peter: Yes how ruthless these rules were and clearly in the early going especially that escaped them. And they always took liberties with rules. They always found some way. I mean, they would go back. I know somebody from the neighbouring county, they’re over next to Essex County really not far from it. And he lived in Essex County, but really close to Caroline and his uncle ran a big boarding house and they would stopped there because clearly they’re not in Caroline County. They’re not within their jurisdiction so they can sneak across visit mom and dad and siblings and then come back. And for an extended period while the case was back in the courts, they lived not in either of those two counties, but the next one downs again, six or eight miles away, King and Queen. And that’s where they rented a farmhouse and they’re really back in the area there. But that was true the first three or four years before Milred took it upon yourself to try to find some way to get this thing done.

Holly: Yeah, so what was the spark that made her decide this has got to change?

Peter: I think that is again back to Hope Ryden’s movie, film making. We’re not simply a fly on the wall, but she’s actually on camera asking questions and Mildred is responding. And that’s one of the ways we get this pretty richly textured sense of who Mildred was, what made her tick, how she saw the world, what she sounded like. And she says something is I remember it but maybe jumbling some images here. This is some of the March on Washington. And so the march hadn’t happened yet, actually. But there was all kinds of talk about it coming. And then there was a civil rights bill that from fairly early that year 63, that would be passed the next year after Kennedy died and Johnson became president. Both of those things were happening in the march on Washington, and the civil rights bill. And yet, that doesn’t fully satisfy because her letter is dated June which is quite early. It’s not addressed specifically to anybody, but from it one infers that there’s this backstory of having or having written as the story goes to Bobby Kennedy, and his having said, ‘I can’t do anything for you but there’s this group the American Civil Liberties Union, and they might be able to help’. And in fact, they’re the ones who carry the legal load over the years. So she’s writing this letter, dear sir. That’s where she describes herself as part negro and part Indian. And she briefly sketches the story. She doesn’t get all the facts right; she says 30 years, not 25. But we take it that that letter went to Bernie Cohen who becomes her lawyer. He falls in love with her as quickly as I did when I first had a conversation with her on the phone, and he sees the future that this is a case that’s going to have to go to the US Supreme Court. So it’s title will have to be Loving vs Virginia.

richard and mildred loving love story
Mildred & Richard Loving

Holly: I mean, it’s the perfect!

Peter: You can’t make this stuff up. I mean, I don’t have to be a novelist. I’m a historian. I work with real stuff, because it’s too unreal.

Holly: People wouldn’t believed it. They’d say it was cheesy, that he’s made up it up.

Peter: That it’s an untrue story, but this is all based upon a very true story. 

Holly: Exactly.

Peter: So he tries to do what he can for her but he really has no clue. He’s been out of law school for a few years, but he’s doing pretty penny ante type stuff. He has no experience with constitutional law. He’s never been in a federal court. He really doesn’t have any idea. Now, somewhere the next six months, let’s say, he somehow comes across acase that provides a clue as to how to bring the case back to the trial.

Holly:  Right.

Peter: But a whole year passes from that initial letter that we have ‘hope you can help us’ to ‘Dear Mr. Cohen, hope you hadn’t forgotten us’. Right, so she’s seen no forward progress. She’s waited a whole additional year. Conditions have not improved. And ‘were you going to help us or weren’t you’ you know? And so once again, she’s taking the lead and forces him now to go consult his constitutional law professor there in DC, Chicago Law School. That’s where he runs into Phil Hirschkop who is roughly the same age, has been out even less time, is on the front lines all the time with the civil rights struggle in the deep south and he’s in federal court. He knows all kinds of stuff. So Bernie Cohen has cultivated this case in this family, but to no avail. Phil Hirschkop comes in and says, ‘can I help?’ and then says, ‘I want to be a part of this.’ Now, Bernie Cohen is extremely well cast in the film. Everything about him seems just spot on. Phil Hirschkop is emphatically not well cast. Phil once said to me, ‘you know, I didn’t get to be 18 years old and never was a Green beret. He came out of high school went into special forces. This guy is a towering figure. I mean, he’s not physically Huge, but he’s one of those rare bigger than life people you run into. 

Holly: Yeah a presence. 

Peter: He is not to be taken lightly in any context. And he is ferocious. And I love the man dearly, I truly do.

Holly: Well they made a very good team toge

Peter: They made a fabulous team. No, the Lovings could not have won without this team. Again, without Bernie, there is no case. And without Phil, there is no victory.

A little more about Nick Kroll as Bernie Cohen in Loving (2016)

Holly: So in your book, you talk about Bernie looking at the case, and there are two doors that he needs to find keys for which helped me understand. 

Peter: Yeah I meant to see how I framed that in the book. I was supposed to do that.

Holly: No, that helped me understand the legalities of it all.

Peter: I’m struck now what my mindset was when I put that language out there. But here are the pieces that had to work. For one thing Hirschkop was really frightened, one of the few times in his life, that the mere fact of forcing this case back into the courts if they could manage that seat would jeopardize the Lovings. And the clearest example would be this – when they got back to the trial court, and nothing happens. So then they went to federal court, federal court says, ‘Well, you know, you haven’t exhausted remedies in state court. So go back. But if you don’t get satisfaction there, then come back to us.’ So now the trial court judge knows he has to act. He can’t sit on the case anymore, fully satisfied with how he disposed it the first time. How could he possibly improve on the original? And really, there is no way. So he’s forced to do something. And what he does is extraordinary. I always remember this 20 pages, but it’s more like 10 or 12. Whether it’s handwritten and I’ve got that version, or the type version that I’ve got that too, the only piece It’s ever quoted is the very end where ‘God Almighty put the separate races’. But he’s putting out this manifesto about how the feds have no say in marriage matters of marriage any more than they have a say in matters of schooling, Brown vs Board was an absolutely illegitimate intrusion by the US Supreme Court into state affairs. And any such interference with marriage in this case would be as well. It’s an extraordinary. It’s a tour de force. Judge Bazile is on his game when he writes this thing. He hasn’t put out this manifesto because it’s got he’s got a megaphone. He has to speak. And this is what he’s going to say. Okay, so he’s held the line, and now it goes straight to the Virginia Supreme Court. The Virginia Supreme Court, of course, upholds the trial court verdict and does it in very robust language. Again, it’s time to tweak the beaks of the feds. They have no say here, but says the trial judge erred in his sentencing. Well, now it goes back to the trial judge. And he comes up with ‘Well, you said I had to do this thing. Okay.’ There it is one year in the penitentiary, maybe five years – you’ve really made me mad now. So that was the great threat that if they lost in a state in the US Supreme Court did not accept that case. Then the state court ruling stands, and now the trial court imposes a new sentence and what else can they do. So they’re gambling all along the way, this is a tightrope over fire. Hirschkop was I think, maybe more than ever in his life, really struck with the dangers that he was opening the door to with this couple he wanted to help. But US Supreme Court decides, ‘yeah, we’re gonna hear this thing.’ And then it rules the way it does. And every step of the way is one of these marvelous things about the study of history that’s just one contingency after another right? There’s nothing foreordained about any of this. I mean, we’ll talk in a bit, I’m sure about the US Supreme Court ruling. Everybody gets it wrong.

Holly: I mean, it’s incredible. They were taking such risks. There were so few options. And the options are so high stakes, because at the heart of this, there is a couple and there is a family. There are three children at this point and they are taking a really big leap of faith with Bernie and Phil Hirschkop to say, ‘Yes, we don’t have any other choice at this point.’

Credit: IMDb Photo by Ben Rothstein - © 2016 Focus Features
Ruth Negga & Joel Edgerton as Mildred & Richard Loving in Loving (2016) | Credit: IMDb Photo by Ben Rothstein – © 2016 Focus Features

Peter: It’s not clear to me, however, how clear it was to Mildred or Richard how much danger they were in. I think that she in particular, he tagging along that they were pleased to see that at least there was some possible favorable outcome, to short circuit this 25 year sentence. And the 25 years understand that was not the end of it. I mean that if the world of 1958 had persisted through 25 years later, and they had come back, they’d be busted again and sent off for another 25. I mean, there was no end in sight; it was a life sentence. So that enhanced the stakes of how important it was to go forward without necessarily seeing the dangers involved. Phil Hirschkop has helped my thinking in so many ways with just kind of one liners he tosses out. One of them was he didn’t never understood how Richard a member of the privileged class – he sees it solely in terms of race, not in terms of class – Richard is, you know, he’s a he’s a mechanic. He’s a car racer. He’s just folks. It’s nothing about him, except in terms of his being tall, white and male. But he said ‘why didn’t Richard just walk away? Says I don’t need this.’ But this gets back to your central theme about this love story. It took both of them to do it. Richard hangs in there and does everything he can to protect his family. Mildred is the one that drives the possibility that they might actually get through this thing and be able to go back to the world they knew. And like Conan and Hirschkop being this inseparable pair, you had to have both and I think the thing with Mildred and Richard, it took both to make this happen.

Holly: Yeah, they balance each other well. So on the 12th December in 1966, the US Supreme Court decided to hear the case. And then the central arguments were made on the 10th April 1967, so nearly a decade after they got married

Peter: Yeah we’re coming up nine years now.

Holly: What was the Supreme Court case like? Because Mildred and Richard didn’t attend.

Peter: I think it was Bernie who said to me that Mildred would like to have attended, but she wouldn’t go without Richard and Richard wasn’t interested. He just, you know, ‘you do it. Do what you can but please leave me out of this. I don’t want any more courtroom time. Anything I can avoid at this point. If you can bring me good news, do it.’ Now, Bernie Cohen has always said about what Richard said when asked, ‘is there something you’d like me to tell the court?’ ‘Yes, just tell the court I love my wife.’ Now that’s the title of the first book I wrote on this whole story across centuries and half a continent. Hirschkop is doubtful that conversation never took place. But it’s plausible for sure. For one thing, because there would have been a conversation ‘Do you want to come?’ The invitation would have been extended. And it seems clear that the movie is almost surely right, I think it’s right not surely, that they would have had a phone where they were by this point. Certainly it serves the movie’s purpose to have them in phone contact.  But the movie absolutely makes up as a fictional scene, the two lawyers being at that farmhouse in King and Queen County, having this conversation. None of that’s happened. Absolutely not. No way. But Bernie Cohen uses that line to great, good effect. There’s just no question about that. Hirschkop and and Cohen split the arguing. The 14th amendment has two key pieces the first section of it. One is has to do with due process and one has to do with equal protection of the laws. So each of them grabbed ahold of one piece of that. They couldn’t be sure, which would be the one that the court would be persuaded. They knew that they had to persuade the court but you don’t come in with just one weapon when you have two at your disposal. Yeah. Or to say it another way to disaggregate the court. You’ve had nine justices there and you need to bring on at least five of them. You’d like more but you don’t need more to win the case. You’ve got to those five and let’s say four of them are persuaded by the equal protection one but that doesn’t sway the fifth that you need but the due process one pulls them in. So I mean they did their job in truly professional fashion. They’ve been extraordinarily coached by the biggest guns in the ACLU. I mean, in terms of writing briefs, written arguments that would go through all the justices, in terms of crafting what you do with that limited time you get an oral argument. They have been coached extraordinarily well. Now, the way the Supreme Court works is that the Chief Justice, he has no more vote than anybody else. But if he’s in the majority, he gets to assign who’s going to write the opinion of the majority. Now, if it’s unanimous, that’s one thing but regardless if five people are going to sign on to this and he’s in that majority, then he assigns he signs it to himself. Which means in real life, that his law clerk or law clerks are going to mostly do the heavy lifting to create this thing, but he instructs them two things must be included. For one thing, you have got to include racial integrity act of 1924 because it just struck them so ludicrous that something like that could still be an essential piece of law in any American state. They didn’t want to be shadowboxing and putting out an argument put it down without a clear evidence of what it was they were shouting down. And you go to include what Richard said.

Here are the oral arguments in full from the Loving vs Virginia case

Holly: Well it’s so simple, it’s so powerful. It’s the kind of thing that sticks in people’s memory.

Peter: Those are the kinds of things you know. It relies on a phrase that grabs people’s attention and does not let them go. Now the ruling itself is not very long and it doesn’t get all the facts right. But it gets us the central arguments and it gets at them very powerfully. What the ruling says on close inspection is not that two people, consenting people, have the right to marry. It says that race can no longer be the obstacle that a state puts in front of them. They use grandiose, big time language about the freedom to marry but they really are connecting it only to the question of race. That would be a central issue later on of course for same-sex marriage. So that’s one piece of it. But for me perhaps the most central thing is this that one of the justices signed on to what all of the others insisted upon that these convictions must be overturned. The convictions based on a law, well he quoted a ruling by that court from three and a half years earlier, McLaughlin v. Florida, where the couple had not argued that they should be permitted to marry. They weren’t married. They knew they’d put themselves in greater jeopardy if they did that so they used the race specific language and they did a greater plenty for black and white than white and white to live together under the same roof – back to that question about sex outside of marriage. Lascivious cohabitation – a memorable phrase – that resonates down through the years and that’s exactly what a married couple could be charged with if their marriage weren’t recognised. The language that came out of that was really important as prelude to the Loving ruling. And it made it very clear in stark language about how I do not see how the race of the actor can render the action itself criminal. So Potter Stewart insisted on that language, quoted it again. It was really in advance prudence three and a half years ago that it was articulated but at this point it’s a retrograde statement because what it’s doing is what Hirschkop (among the many fears that he had) that court would rule in the Lovings favour but that they would do it in a narrow gauge sort of way. That’s what the court tries to do. It really does. It tries to sort the specific issues. It understands that they’ll be broader ramifications but let’s not try to do everything all at once. There’s always that tension there about how broad do you go, how narrow? He was going really narrow – throw out all of the convictions but leave almost everything else intact. And so here’s my image – I point towards it in my book, I’m not sure I state it as clearly as I came to after the book came out but it’s this – let’s say they won. They merrily flaunt their nearly legal marriage back on their home turf. They’re in bad late at night and suddenly thugs break through the door with flashlights and haul them off to jail. Why? Not because they are black and white, indien and white, coloured and white or any other racial difference but because they’re living together in lascivious cohabitation. It was a none race-specific charge that would be easy to convict them on. They would have to go through this whole process to get them to the Supreme Court again, exactly how that would play out isn’t clear, how quickly you could do that but now the court would have to rule how it didn’t the first time. So if Potter Stewart had availed, if he had spoken for the court, then arguably there would be Loving vs Virginia 1 and Loving vs Virginia 2. And it would be 2 that would get them what they really needed and 1 wouldn’t have done the job. 1 would have been a charade. It would have been a bait switch. It would have been the kind of thing that would have lured them into believing that they were free and once again jeopardised them fully as much as before. So I mean this is the nature of the ruling that Mildred and Hirschkop more that Richard or Cohen made happen. It absolutely took all four. But Hirschkop made the constitutional argument. He nursed it into existence. He had the contacts in the ACLU to work with all the best brains in the business to put an argument before the court that the court could not turn down.

Holly: And they didn’t.

credit: nbc news
Mildred & Richard Loving at a rare press conference | Credit: NBC News

Peter: And they didn’t. But keep in mind too this was not the Supreme Court of 2020. This was the Supreme Court of 1967. This was the Earl Warren court. This was Justice Hugo Black. This was Justice William O. Douglas. This was just this pantheon in the heroes of the American judicial past. So from Warren’s perspective he would say ‘what is this still doing here? We’ve had the Civil Rights Act of 1964 which ends most of the formal segregation stuff. We’ve got the Voting Rights Act of 65 took a tremendous additional piece out. Why is this still left standing?’ Samson didn’t have to pull that thing down, he had all kinds of help. It came toppling and so the last bigpillar of that whole big structure of Jim Crow, the formalisation, the legal materials at least those were now gone.

Holly: Their legacy as a couple is, frankly, undeniable. If we just look at the rest of their life that they had together after the Supreme Court ruling came through. It was very sadly shortened by the death of Richard.

Peter: It sure was. They were married legally less time than they’d been married illegally. When Mildred described how he died and how she got pretty seriously injured, the way she described it, I had a very different image of what had happened than it turned out when I visited the scene. They were basically hit head on. I had in mind that they jumped a stop sign and ploughed into the car and I had the notion well it’s coming in from the left and hits Richard. No. They’re driving back home and the street, the road, the highway – small highway to be sure – that’s going to meet there is coming at a sharp angle, an acute angle so it’s almost head on and it hit her side of the car. Now it would have pinned him under the wheel I’m sure. She would go through the windshield and that’s why she was injured the way she was. But they’d been out having a nice time. They’d gone to the big city – you know bowling green population 700.

Holly: It’s incredibly sad that that split second changed everything for them and I was really touched – you don’t get a lot in the publicly from Mildred after that but what you do – you can tell how dearly she holds Richard in her heart. He’s the only one who was ever for her.

Peter: That warm family that surrounded her fully growing up. One of the great images of this whole affair is that now it is possible to live publicly as husband and wife. And Richard now as the brick-layer, home builder, not just racecar driver – he does all kind of things. He can now build this sturdy brick house that they can live together in. She lives out the rest of her life in that house, the house that the Loving decision made possible. People in the family would describe how every Sunday afternoon the whole extended family would descend on this little house and Mildred would preside over it all, creating this banquet. So in a very real way I recreating that scene that we saw in the movie back when she was a teenager and not yet married.

Holly: Yeah creating this family and their fight meant that their children were able to marry who they chose as well.

Peter: That’s the legacy right? Richard died when they’re fairly young. They marry fairly young – not as young as their mom – and they marry the rainbow. When I saw their marriage licenses in Caroline County, Sidney the oldest and the darkest married someone classified on the document as negro. An 18 year new graduate from high school across the river from the next county. Next up Donald. He marries Cathy a white woman from nearby Fredericksburg who grew up in Florida and her mom is working for the local newspaper. So they’ve now between the two of them, one married black, one married white and then little Peggy. She marries someone whose clearly described as Indian and all three of the children as to their own racial identity – all of them says Indian. But now that didn’t matter right?

Holly: Yeah that was not for the state to decide.

Peter. On neither side. Their mom brought the case that made it possible for them no matter who they were to marry who’ve they chose no matter who that was and that’s the legacy. That’s the distinct continuing legacy in the law of race and marriage across America. It just rattles out in every direction.

credit: IMDb
Ruth Negga & Joel Edgerton as Mildred & Richard Loving in Loving (2016) | Credit: IMDb

Holly: Yeah absolutely because publicly they gave us all that chance to choose who we wanted to be with.

Peter: And it goes even farther. When I say it freed up every American, I mean that in two major respects beyond what we’ve just spoke to. There was always the threat – and white folks had to fear this as much as anything even if they didn’t – they might be found out. If someone challenges you to prove that you’re purely something then all you need to do is go back two or three generations to find some evidence and it can be indirect (and I can tell a story from Mississippi that really nails that but let’s not get distracted). So it freed up everybody. Not only as to who that might marry but to who they were themselves. Their own racial identity, it didn’t matter what someone determined as to who their great grandaddy was and it no longer had any legal bearing on how they lived their lives. So that’s a huge thing right there. But among the many people who wrote in on that I guess it’s an electronic bulletin board (there must be a name to it) at the funeral home, a woman from New York said you know ‘New York has never had such a law, pretty sure [and she was right about that] but now we’re free, here a white woman married to a black man, we’re free now to move to Virginia or wherever hell else we want to because of the case that Mildred brought. So all these people writing in mostly from the south, many from Virginia but from everywhere and many of them using language that makes it clear that they just now discovered how it was that they were free to marry. But others using language that makes it very clear that they knew all along what it was and that they’d been in touch with Mildred. She in her private little home had been in telephonic or writing communication with couples who knew it all. I know some of those people and I write about them briefly in the book that she had this enormous personal impact as well as this broader legal. It just goes on and on.

Holly: Yes because it’s still something that gets referenced today and with the same-sex marriage it was also something that was utilised in that fight as well. 

Peter: Well it was used very powerfully even though it was an ambiguous legacy. To go back to that state;s retained authority on everything except race, well that meant that state’s could do what they wanted to do. The same-sex question came up in a number of state courts beginning within three years. First was in Minnesota but then it came in Washington state, Pennsylvania, several other jurisdictions and the court just threw it out saying ‘no no you must read the Supreme Court ruling. They left it up to the states to determine this question and the states have not changed the statues. That’s the way it is sorry. We can’t help you. No matter what we’d like to do, whether we want to or not, we can’t.’ So that line of argument in state court went away and the effort on constitutional grounds to challenge the ban on same-sex really was in legal limbo throughout the rest of the 70s and into the 80s and then in the 90s some really innovative constitutional argument makers came up with the notion that why are we focusing on federal law – does the state constitution bring us language that we can challenge there? That was how Vermont was the frist and then Massachusetts soon after – a number of places on the basis of state law but that too was ambiguous because this part of the story really starts in Hawaii and in a little known companion piece in Alaska. The court is prepared to rule that under the state constitution you cannot be denied the right to marry. Well that’s easy, the voters change the constitution to take away the language that had been interpreted in this fashion and suddenly you cannot do that again. So there was ambiguity all along the way but as precedence built, the momentum grew and Loving coupled with a case from California from in 1948 contributed powerfully.

Holly: And I mean I guess the Loving gave everyone an option.

Peter: It created options that are still in place and that I don’t see going away. For years now my wife in particular when she sees a mixed race couple, and it doesn’t matter what mix, she say ‘a Loving couple’.

Holly: And I mean I think that’s the best legacy to leave isn’t it?

Peter: So one young lady, teenage bride from a backwater part of the world wound up being the  source of a case that swept the land and changed everybody’s lives as to who they could be and how they could stay free and be that.

Holly: Incredible. Thank you so much for talking to me today about them both. I have found it fascinating learning about them and I am so grateful that you have spoken to me.

Peter: Well you know thank you for just bringing me back to this fabulous piece of the past that it’s been my privilege to work off.

Holly: And thank you for listening. I have found myself thinking so much about Richard and Mildred after my conversation with Peter and their legacy is undeniable – they fought not only for themselves but for so many to have the freedom to marry whomever they chose, whomever they love and I think the love between these two is so very evident. Peter’s book Race, Sex and the Freedom to Marry: Loving v. Virginia is available on Amazon as is the film Loving. If you would like to see some of the original footage by Hope Ryden that Peter mentions I have included it in the episode transcript which is over on the Past Loves blog – as always the links for everything will be in the show notes. If you have enjoyed this episode, which I very much hope you have, be sure to rate, review and subscribe to Past Loves wherever you are listening to it now and then head over the Past Loves Instagram @pastlovespodcast where the discussion continues. And so that’s it for this week, thank you again to Peter and to you for listening, next week then of course we will be talking about the true love story of the Brontes – until soon!

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