Aftermath of Arrest

Mildred and Richard Loving moved in with Mildred’s cousin in D.C. in a black neighborhood. They would still make visits to Virginia from time to time, but separately.1 Mildred Loving would keep up with the news and was interested in a potential act that was moving up in the court, the 1964 Civil Rights Act. Mildred Loving was curious if this bill would allow the Loving’s to move back to Virginia legally. She wrote a letter to Attorney General Robert F. Kennedy to question him if the 1964 Civil Rights Act would allow the Loving’s to return to Virginia. Kennedy wrote back and responded that the bill would not apply to the Loving’s case. He put her in contact with the American Civil Liberties Union and gave her the address to the D.C. branch. Mildred sent a letter to the ACLU branch in D.C and was referred to Bernie Cohen, an attorney volunteering at ACLU. Bernie Cohen was initially hesitant to take on the Loving’s case. He had little background regarding civil right cases and did not know if he was capable of handling it. Once he was reassured by a colleague, Cohen realized the magnitude of the Loving’s case. It was a case that could easily reach the Supreme Court. Cohen called Mildred and invited the Loving’s to his office in D.C. He informed them that the Loving’s could win their case, but it would be a long process. Before Bernie Cohen could fight the Loving’s case, he had to find out how to overturn their original conviction. The Loving’s were charged in 1959 and Virginia law only allowed criminal convictions to be overturned within 120 days. Originally, Cohen suggested that the Loving’s return to Virginia to be rearrested. Richard Loving looked at him like he was crazy and Cohen realized it was not the best solution. It took Cohen many months to find the solution to appeal the Loving’s case, the Fuller v. Virginia case. In the case, a juvenile was convicted for dating an unmarried female with the promise of marriage. He was found guilty, but the court realized there were circumstances that could suspend the two year sentence the juvenile was given.2 Virginia Supreme Court looked into reviving the case that had a suspended sentence. Bernie Cohen realized the suspended sentence was similar to the Loving’s case in the sense of a probationary period. This was what Cohen needed to appeal the Loving’s case and on November 6,1963 he sent a motion to Judge Bazile. Bernie Cohen was asking Bazile to remove the courts judgement of finding the Loving’s guilty. He cited that it was cruel and unusual punishment. In addition, he cited that due process in the 14th amendment was violated.3

Judge Bazile did not respond and Cohen could not find a way to get a response from Bazile. Seven months went by and Mildred wrote Cohen another letter asking Cohen if he had heard anything and to not give up on the Loving’s.4 Bernie Cohen was not sure what to do and was stuck. Cohen visited a friend’s law office and met Philip Hirschkop, who had just graduated from Georgetown with much experience in civil right cases. Hirschkop informed Cohen of the next step to take in fighting the Loving’s case. Hirshkop told Cohen to file a 2283 motion, which is basically requesting a three-judge panel. The two lawyers became the perfect team to fight for the Lovings.5 On October 28, with no response from Judge Bazile, the two lawyers began a class action lawsuit in the US District Court of Virginia and requested a three judge panel. The lawyers would meet with the panel on January 27, 1965. The lawyers also finally heard a response from Judge Bazile. Judge Bazile reaffirmed his decision in the Loving’s case and that the Loving’s were guilty of a severe crime. The Loving’s case still went on into the three judge panel.6

Lawyers Bernie Cohen and Philip Hirshkop argued before the three judge panel that the Loving’s case should go before the Virginia Supreme Court and the judges delivered their opinion on February 12, 1965. The Loving’s case would be tried before the Virginia Supreme Court. The two lawyers began practicing their arguments for the Virginia Supreme Court. The Virginia Supreme Court took Virginia’s stance on anti miscegenation statues and sided with Virginia on the Loving’s case.7 However, Judge Henry Carrico, in the Virginia Supreme Court, did take pause at the twenty five year banishment that Judge Bazile assigned. Carrico vacated the banishment statement and issued a statement of judgement to give the Loving’s time to appeal as Cohen knew the Virginia Supreme Court would not be the last court the Loving’s case was tried in. Richard Loving and Mildred Loving were able to return to Virginia together without the risk of being prosecuted.8

Hirschkop and Cohen filed a appeal to the US Supreme Court on May 31 1966. In addition, they filed a jurisdictional statement asking the US Supreme Court to listen to the lawyers appeal of the Virginia Supreme Court’s decision on the Loving’s case. In the statement, the lawyers argued that Virginia’s anti miscegenation laws were racially discriminatory and failed to give the Loving’s equal protection of such laws. If it was not for the Loving’s being different races, they would not have been prosecuted for getting married. In addition, the Loving’s were not given due process as required by law in the 14th amendment. The argument’s closing was a human aspect instead of a legal closing. The lawyers wrote how the banishment from Virginia effected the Loving’s and their ability to raise their children in their hometown.9

The US Supreme Court responded on December 12th 1996 and founded that probable jurisdiction existed. The court was willing to hear the case and decided that oral arguments would take place on April 10th.10 Sixteen states still had anti misgenation statues at the time of the US Supreme Court’s response. The two lawyer’s Bernie Cohen and Philip Hirschkop ready to take on the Supreme Court with the help of four amicus briefs from various groups interested in helping fight for the Loving vs. Virginia.11

  1. Peter Wallenstein, Race, Sex, and the Freedom to Marry: Loving V. Virginia. (Kansas: University Press of Kansas, 2014), 84 ↩︎
  2. Phyl Newbeck, Virginia Hasn’t Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving ( Illinois: Southern Illinois University, 2008) 135-137, ↩︎
  3. Wallenstein, Race, Sex, and the Freedom to Marry, 101-102. ↩︎
  4. Wallenstein, Race, Sex, and the Freedom to Marry, 102-103 ↩︎
  5. Newbeck, Virginia Hasn’t Always Been for Lovers, 138-140 ↩︎
  6. Wallenstein, Race, Sex, and the Freedom to Marry, 104- 110 ↩︎
  7. Wallenstein, Race, Sex, and the Freedom to Marry, 110-114 ↩︎
  8. Newbeck, Virginia Hasn’t Always Been for Lovers, 146 ↩︎
  9. Newbeck, Virginia Hasn’t Always Been for Lovers, 147-149 ↩︎
  10. Wallenstein, Race, Sex, and the Freedom to Marry,118-119 ↩︎
  11. Newbeck, Virginia Hasn’t Always Been for Lovers, 160 ↩︎