Bernard Cohen and the Legacy of Loving

Published:October 30, 2020 by Patti Miller

Mildred and Richard Loving, the couple represented by Bernard Cohen and Philip J. Hirschkop in the landmark Loving v. Virginia case. (Image courtesy of Getty Images)

Bernard Cohen, one of the two lawyers who successfully took on one of the last laws underpinning legal segregation in the landmark Loving v. Virginia case, died on October 12 at the age of eighty-six.

Brooklyn-born Cohen was practicing law in Alexandria in 1963 when he was asked to take the case of Richard and Mildred Loving, a mixed-race couple from Caroline County, by the American Civil Liberties Union. The Lovings had married in Washington, D.C., where interracial marriage was legal, in 1958. But when they returned to their home in Virginia, they were arrested by local authorities for violating the state’s 1924 Racial Integrity Act—which prohibited “any white person…to marry any save a white person, or a person with no other admixture of blood than white and American Indian.” Richard Loving was white and Mildred Loving was Black and American Indian.

The Racial Integrity Act was part of a long history of laws to prevent marriage between whites and non-whites in the interest of maintaining what white supremacists and eugenicists considered the purity of the white race—despite the fact that Black, white, and Indians had long intermixed, both voluntarily and, in the case of the rape of Black enslaved women by white men, involuntarily. It played to one of the most incendiary racial shibboleths—the fear of widespread sexual relations between Blacks and whites, particularly between white women and Black men, who had long been portrayed as hypersexualized and predatory as an excuse to limit their freedom in society.

Cohen understood immediately that the case would be historic. At the time, sixteen states, largely in the South, still banned interracial marriage. Like many at the time, the Virginia judge who refused to overturn the Lovings’ conviction asserted that they were following a higher law in preventing Blacks and whites from marrying. “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents…. The fact that he separated the races shows that he did not intend for the races to mix,” wrote Judge Leon Bazile.

The case reached the U.S. Supreme Court in April of 1968. Cohen and co-counsel Philip J. Hirschkop argued that Virginia’s law violated the Fourteenth Amendment’s promise of equal protection and due process under the law by denying marriage to individuals based on race. “These are slavery laws, pure and simple,” Cohen told the court.

Arguing on behalf of Virginia, Assistant Attorney General R.D. McIlwaine III compared the state’s prohibition of interracial marriage to statutes prohibiting other types of undesirable marriage: “polygamous marriage, or incestuous marriage,” underage marriage, or “the prevention of marriage of people who are mentally incompetent.”

It was an argument that seemed self-evident to many southerners at the time but ran headfirst into the burgeoning civil rights movement, as well as the increasing liberalization of attitudes toward sex. Two years earlier, the Supreme Court had ruled in Griswold v. Connecticut that the right of married couples to access contraception was protected by the Fourteenth Amendment’s guarantee of due process, which created a right to marital privacy. (Single adults would not be granted the same protection until 1972).

The Supreme Court ruled unanimously in favor of the Lovings on June 12, 1967, striking down all state laws banning interracial marriage. Two months later, Leona Eva Boyd, a white woman, and Romans Howard Johnson, a Black man, became the first mixed-race couple to be legally married in Virginia since the colonial era.

Cohen served in the House of Delegates, representing Alexandria, from 1980 until 1996, where he was known for his work banning indoor smoking and advocating for the rights of the terminally ill. But Loving remained his legacy, especially when it was cited as a precedent in the Obergefell v. Hodges decision that legalized same-sex marriage in 2015. “Because the constitutional principle involved is the same, the right to marry is a constitutionally protected right of liberty. I think it’s that easy,” he told the Richmond Times-Dispatch. But of course it wasn’t easy until the Lovings and Cohen and Hirschkop stood up to make it so.

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