WASHINGTON — Just five weeks after being wed, a young Virginia couple was taken from their bed at 2 a.m. and arrested for getting married. The year was 1958 and the crime was miscegenation: Richard Loving was white and his wife, Mildred, was black.
Their story is the subject of a new HBO documentary coming out in February. “The Loving Story” recently made its Virginia debut at the Washington West Film Festival in Reston, where Bernard Cohen — one of the lawyers who tried the ensuing Supreme Court case — reflected on the experience.
A native of New York, 29-year-old Cohen was just one of two lawyers volunteering with the American Civil Liberties Union in the state of Virginia. He had traveled south of the Mason-Dixon Line to attend Georgetown Law School and was intrigued when a letter from the Lovings landed on his desk.
The couple had been thrown in jail and eventually pleaded guilty to violating segregation laws. Their one-year prison sentence was suspended on the condition they leave Virginia and not return either together or at the same time for 25 years. They fled to D.C., where interracial marriage was legal, and lived for several years in Northeast, far from their friends and family in Caroline County, Va.
Mildred Loving buckled under the banishment. She sent a letter to then Attorney General Bobby Kennedy in 1963 asking for help, and he referred her to the ACLU.
Cohen says he always considered himself a “civil libertarian by education and instinct.” Despite being relatively inexperienced in the courtroom, the young lawyer instantly recognized an opportunity to push America toward greater racial equality.
“The inevitability of [the case] being decided was, in my opinion, a foregone conclusion,” he says. The Supreme Court was “going to take the case, they were going to hear it and they were going to decide it. And I felt certain they would decide it favorably and come down in favor of civil rights.”
At the time, 16 states still had anti-miscegenation laws on the books. But the tide was changing across the country — Congress was debating the Civil Rights Act and Brown v. Board of Education had already been decided.
He remembers reading about another case in Virginia during his law school days. In Naim v. Naim, the state supreme court ruled against a mixed-race marriage in an effort “to preserve the racial integrity of its citizens,” according court documents.
“The case made an impression — I was quite aware it was an issue that was just destined to come up again,” he says. “When I got the opportunity to represent somebody named Loving against the state of Virginia in a case involving mixed marriage, it was too serendipitous.”
It took Cohen and his legal partner, Philip Hirschkopf, a year to overcome legal hurdles and another three years before the Supreme Court ruled in favor of the Lovings.
In his opinion, Chief Justice Warren wrote about the fundamental right to marry.
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival,” Warren wrote. “To deny this fundamental freedom on so unsupportable a basis as the racial classifications … is surely to deprive all the state’s citizens of liberty without due process of law.”
Cohen was not surprised with the outcome, and celebrated what it meant for his adopted state.
“Virginia was not exactly a place where civil liberties were evolving with the passage of time,” he says. “It took lots of litigation and introduction of bills in the legislature to move the state out of the 18th century and into the 20th century.”
In 1979, Cohen turned his commitment to civil rights into a call for public service. He joined the Virginia House of Delegates, representing Alexandria and spending 16 years in office.
Looking back on his career as an advocate and public official, Cohen sees some similarities between Loving and the current debate surrounding same-sex marriage. He sees the issue as an “inevitable” dialogue, one that will likely end with the Supreme Court again taking up the issue of discrimination.
“I don’t think discrimination is ever 100 percent removed, but I think we’ve gone beyond the widespread attitude of segregation and racial discrimination that existed in the 60s,” he says. “Things have gotten a lot better, but things are not 100 percent and they never will be.”
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