I wrote sometime ago about the pending release on DVD of the HBO documentary The Loving Story (2011), about Mildred and Richard Loving, the couple whose case led to the throwing out as unconstitutional all state laws banning inter-racial marriage. I just saw the documentary and I can strongly recommend it as a heartwarming story of overcoming racial prejudice.

Richard Loving was a white man. Mildred Jeter was a part-black, part Native American woman. They both lived in a rural part of Virginia, a state in which segregation of schools and restaurants and the like were a fact of life. But for poor people the barriers were somewhat porous and Richard was quite confortable in both communities, having black friends and forming teams with them to go drag racing and otherwise socializing. In the course of this, he met Mildred and the two started dating and decided to marry.

But inter-racial marriage was illegal according to Virginia’s Racial Integrity Act of 1924 so in 1958 they went to Washington, DC to get married and returned to Virginia. But they seemed to be unaware that leaving the state to get married and returning was also illegal under the Virginia law and a month after they returned, the racist sheriff of their town and his deputies, acting on a tip, broke into their home in the dead of night hoping to find them having sex, which was also against the law. But they were merely sleeping so they woke them up, shone flashlights into their faces, the sheriff saying that the marriage certificate hanging on the wall was no good there.

The two were hauled off to jail and pleaded guilty to violating the law and the judge sentenced them to one-year in prison but suspended it for 25 years provided they left the state. So they moved to DC but hated living in the city. They missed their families back home and the open spaces where their children could run free. In 1963, on the advice of friends, Mildred wrote to Attorney General Robert F. Kennedy asking if the pending civil rights legislation had any hope for cases like theirs. (You can read her letter here.) He replied that it did not but suggested that she write to the ACLU to see if they would take up her case. (Can you imagine any current AG giving such advice?)

So she wrote to the ACLU and their case was taken up by two young attorneys barely out of law school. Both of them not only felt that Lovings’ cause was just, they knew that this was an important civil rights case. They recommended that the couple go back to Virginia and had their case re-opened, arguing that the Virginia law violated the Equal Protection and Due Process clauses of the Fourteenth Amendment that says “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

When the state courts delayed acting on the case, they took their case to the federal District Court in the area and a three judge panel remanded it to the state Supreme Court to judge the legality of the law. The state Supreme Court in March 1966 upheld the verdict and the law so they were finally, in April 1967, able to argue their case before the US Supreme Court.

On June 12, 1967 the court ruled unanimously in the Lovings’ favor with Chief Justice Earl Warren writing the brief but powerful opinion. His opening paragraph (citations omitted) was unambiguous:

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

The justices emphatically rejected the state’s argument that the Equal Protection clause was not violated because the law punished both black and white people equally for the crime of inter-racial marriage.

Warren ended his opinion with a resounding conclusion:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

It would be nice to say that the Lovings lived happily ever after but it was not to be. In 1975 the car the two were in was hit by a drunk driver. Richard was killed and Mildred lost the sight of her right eye. Their older son Sidney died in 2010 at age 53 and younger son Donald died in 2000. Their daughter Peggy Fortune is the sole survivor.

The Loving Story is truly a love story. Mildred comes across as a gentle but determined person. She is soft-spoken and has warm doe-like eyes and when she smiles at the camera you can’t help but smile back at the screen. Richard seems like what central casting would send you if you asked for a redneck . Stocky, powerful looking, clench-jawed, and with a buzz cut, he spoke very little and smiled rarely. But his basic message to everyone was short, clear, and direct: He loved his wife and he was not going to divorce her, whatever the state of Virginia might do or say.

The parallels of the Loving story with the current issue of same-sex marriage are clear. The trial judge in that case made the same arguments about the ‘natural order’ and the right of states to determine who can marry that those opposed to same-sex marriage now use, saying:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

The Warren opinion emphatically rejected that argument. The ruling in the Loving case could serve as a template for the current same-sex marriage cases that the Supreme Court is about to rule on now. One could hope that they look at the Loving decision and ponder seriously about how they want to be seen by history, either as promoting equality and justice or opposing it. In my dreams, I see the current court go with the former option and issue another unanimous and sweeping ruling, declaring that the state has no business giving preference to one particular kind of marriage over others, thus settling the issue once and for all.

But then reality sets in and I remember that the current court lacks the sweeping intellect of the 1967 bench, people such as Earl Warren, William Brennan, William O. Douglas, and Hugo Black. In comparison, the current crop of justices seems small-minded and it seems likely that they will rule narrowly.

What would Mildred Loving have thought about same-sex marriage? She was a notoriously private person, shunning the media. She died in 2008 at the age of 69 but her obituary had this passage.

Mrs. Loving stopped giving interviews, but last year issued a statement on the 40th anniversary of the announcement of the Supreme Court ruling, urging that gay men and lesbians be allowed to marry.

So she was pursuing marriage equality to the end. As she said so simply a long time ago about why she and her husband were fighting to overturn the ban on their marriage, “It’s the principle. It’s the law. I don’t think it’s right.”

Here’s the trailer: