Attorney Who Argued Loving v. Virginia Reflects on Norfolk Marriage Ruling

Last week's ruling by the U.S. District Court for the Eastern District of Virginia that struck down Virginia's same sex marriage bans cited the United States Supreme Court's landmark decision in Loving v. Virginia as part of the legal precedent that required the Marshall-Newman Amendment to be declared unconstitutional.  Stripped of all feigned justifications, Virginia's same sex marriage ban like Virginia's former ban on interracial marriage relied on one thing and one thing only as its true motivation: hate, prejudice and bigotry, with the Bible used as justification in both instances.  Today's opponents of same sex marriage are indeed the descendants of the segregationists who wanted to prevent ‘the corruption of blood’ and ‘a mongrel breed of citizens.’ A column in the Richmond Times Dispatch contains the reflections of the attorney (pictured at right) who represented Richard and Mildred Loving in Loving v. Virginia.  Here are excerpts:

You can still hear the disbelief in 80-year-old Bernie Cohen’s voice. “Why did the Ku Klux Klan dig in after we won the Loving case?” he said Tuesday from his home in rural Spotsylvania County, not far from the hamlet where his history-making clients lived. “It’s because of deep, ingrained prejudice, which is not subject to being educated — not subject to being persuaded to being educated.”

Cohen was a lawyer for Richard and Mildred Loving of Caroline County in the interracial couple’s successful challenge to Virginia’s anti-miscegenation law. It banned men and women of different color from marrying. The 1924 statute, rooted in ancient Virginia practice, was designed by the state’s white power elite to enforce separation of the races — to protect an allegedly superior white race from supposed dilution.

Loving v. Virginia — argued by Cohen, a nice Jewish boy from Brooklyn who would score breakthroughs as a member of the same legislature that had banned interracial marriage — is a landmark case that is resonating nearly 50 years later in another culture-changing legal dispute: same-sex marriage.

In junking Virginia’s 7-year-old, voter-approved constitutional amendment banning same-sex marriage, U.S. District Judge Arenda L. Wright Allen drew heavily on the Loving decision — stirring memories for Cohen as well as his combative spirit.

“It’s a magnificent opinion,” Cohen said Tuesday. “I really was taken by it as I read it. … I was just amazed at the thoroughness of it.”

“Similar fears were voiced and ultimately quieted after Virginia unsuccessfully defended its anti-miscegenation laws by referring to a need to ‘preserve the racial integrity of its citizens,’ and to prevent ‘the corruption of blood,’ ‘a mongrel breed of citizens’ and ‘the obliteration of racial pride.’ ”

Cohen said the pattern of Wright Allen’s ruling reflects the argument that he and his law partner at the time, Phil Hirschkop, made to the Supreme Court in the Loving case.

They emphasized, first, the restriction on interracial marriage violated the couple’s right to due process; that as a fundamental liberty, they were entitled to marry in Virginia. The lawyers’ second point was that by prohibiting the Lovings from marrying here — they were wed in Washington, D.C., in 1958 — the couple was denied equal protection under the law.

Anti-miscegenation laws — despite their neutering by the Supreme Court in Loving — remained on the books in many states. Alabama, a bloody crossroads in the nation’s civil rights struggle, finally repealed its law in a special election in 2000.

“There was a stubbornness to it,” said Cohen, who hears an echo of the reaction to Loving in the response on the right to Wright Allen’s ruling. “I hate to use the words ‘conservative viewpoint,’ but it’s a reactionary viewpoint.”

Cohen also tried — but failed — to decriminalize homosexuality in Virginia. The Supreme Court finally did what the legislature wouldn’t, ruling in a 2003 Texas case. The response in Richmond was similar to that in other state capitals after the court decision in Loving: If only out of symbolic defiance, there was little interest in erasing a legally unenforceable law. 

The fight for same-sex marriage, he said, requires a similar approach: “Just keep at it; don’t relent.”

The next time you see Victoria Cobb or Bob Marshall shrieking about same sex marriage, picture them in white KKK robes because that is the legacy they represent.  Like the KKK they use religion to perpetuate evil.