On Oct. 3 in Lorton, Loving lawyer Philip Hirschkop sifted through a box of documents and files from the case. (Photo by Jay Paul; Loving image: Bettmann/Getty Images)
Only months out of law school in 1964, Philip Hirschkop was sitting in a cushy wingback chair in Georgetown University’s wood-paneled faculty lounge, talking with his former constitutional law professor Chester Antieau, when Antieau’s secretary slipped her boss a note saying that Bernard Cohen, another former student, needed to see him.
Cohen, a lawyer in Alexandria, needed help with a case that a local branch of the American Civil Liberties Union had filtered his way the year before — the Loving case, a case that would become part of American civil rights history and pave the way for same-sex marriage nationwide.
BEFORE THE LAWYERS
Richard Loving and Mildred Jeter lived in Central Point, a small community in Caroline County where black and white neighbors worked and socialized together but did not go to school together. Richard lived three miles from the Jeters and would often stop by to watch Mildred’s brothers play music.
It was in this climate of acceptance that they courted. At 24, Richard, a bricklayer and drag racer, proposed to Mildred, then 18, after learning she was pregnant. Mildred, who identified herself as half black and half Native American, didn’t know that interracial marriage was considered a felony in Virginia when they traveled to the District of Columbia on June 2, 1958, to wed. Richard was aware, but what he didn’t know was that it was also illegal to go out of state to marry and return. At the time, 24 states did not allow interracial marriages.
An article from the Washington Evening Star (Photo by Jay Paul)
After marrying, Richard and Mildred drove back to Central Point. Five weeks later on July 11, they were abruptly awakened at 2 a.m. by the flashlights that Caroline County Sheriff R. Garnett Brooks and his deputies were shining in their faces. The officers had slipped into the house, carrying warrants for Richard and Mildred, charging them with leaving the state to be married with the intent of returning.
“What are you doing in bed with that woman?” the sheriff asked Richard. “I’m his wife,” Mildred answered back as Richard pointed to their marriage license. “That’s no good here,” Brooks sternly replied.
That pivotal middle-of-the-night encounter is part of the Focus Features film “Loving,” which made its debut at the Virginia Film Festival Nov. 3. The scene is based on research that the film’s director, Jeff Nichols, conducted while working on the project. Nichols spent time in Caroline County getting to know the community. He recognized how important it was that the act of Richard and Mildred getting married was not portrayed as “an act of defiance or a symbol of a movement,” he says. “It was simply an act of love.”
Richard was held in jail until July 14, but Mildred wasn’t released on bond until 10 days later. Both were released on the condition that they not live together in Virginia while out on bond. In October 1958, they were charged with a felony. At their trial in front of Caroline Circuit Court Judge Leon Bazile, they initially pled not guilty but changed their plea to guilty after arguments were heard.
Bazile sentenced them to one year in jail but suspended the sentence on the condition they leave Virginia and not return together for 25 years.
Richard and Mildred moved to Washington, D.C., where they lived with Mildred’s cousin for five years.
Homesick, Mildred traveled back to Virginia with the kids a few times, and Richard would usually show up after dark. They were arrested again but let go with a warning.
Around 1963, one of their sons was hit by a car in Washington while playing. Although he didn’t suffer any major injuries, the incident scared Mildred and reinforced her belief that her children needed to grow up in the country. Soon, the family secretly began living part time in King and Queen County.
A NEW DIRECTION
By 1963, the climate in the country was changing. Civil rights leader the Rev. Dr. Martin Luther King Jr. delivered his “I Have a Dream” speech during the March on Washington. It was the same year that President John F. Kennedy proposed the Civil Rights Act.
It was also a time of violence. In September 1963, four young girls were murdered in a church bombing in Birmingham, Ala. In November, President Kennedy was assassinated. “This was the milieu in which the case Loving v. Virginia was born,” Hirschkop says.
Mildred was keenly aware of how these events could affect her case. At the urging of her family, she wrote to U.S. Attorney General Robert Kennedy. His office suggested she contact the American Civil Liberties Union. The letter she wrote to the ACLU was referred to the National Capital Area Civil Liberties Union in the District of Columbia. That union, in turn, asked Cohen, an associate in a small, practice in Alexandria, to investigate.
Mildred Loving sought legal help from the ACLU in 1963. (Photo by Jay Paul)
Cohen filed a petition in November 1963 to vacate or annul Bazile’s conviction against the Lovings and set aside the sentence. They couldn’t appeal their convictions because they had entered guilty pleas.
Nearly a year went by, and the Lovings heard nothing.
Mildred wrote to Cohen again in June 1964 to check the status of the case. That’s when Cohen decided to drop by his former Georgetown professor’s office.
“I was just sitting there while [Cohen] went over the case briefly,” Hirschkop says.
Antieau suggested that Cohen talk with Hirschkop, who was versed in constitutional law.
The two left and walked across the street to juvenile court where Cohen was attending a hearing. “He laid the case out to me with a little more detail,” Hirschkop says. “That raised questions to me about the procedure he had followed.” If the judge agreed to reopen the case, the Lovings could be re-sentenced and could receive up to five years in prison.
Hirschkop’s Lorton home office has a poster from the 2012 HBO documentary “The Loving Story.” (Photo by Jay Paul)
It wasn’t until early August 1964 when Hirschkop went to Cohen’s office to review the Loving file that it became clear to him that this case was “more than an average criminal case. You wouldn’t be successful challenging just the sentencing but you had to attack the constitutionality of the statute under which they were sentenced.”
Hirschkop ended up joining Cohen’s firm the following month and drafted the Lovings’ federal lawsuit on a yellow legal pad he carried with him on a plane
trip to Mississippi where he was working on voter registration for African-Americans during what is now known as Freedom Summer.
MEETING THE LOVINGS
That fall, the couple met Cohen and Hirschkop, who were getting ready to file a lawsuit in the U. S. District Court for the Eastern District of Virginia. The lawsuit challenged the constitutionality of the statute that banned them for being married in Virginia.
Hirschkop watched as Richard and Mildred warmly but decisively interacted with their three children — Sidney, Donald and Peggy. The children were running around playing “like kids do. Mildred kept getting a handle on them.”
The couple’s legal journey to this point had been handled without much publicity, but that was about to change.
Demure and soft spoken, Mildred was quiet but attentive during the meeting that lasted about an hour. She was outfitted in a dress that was “prim and proper,” Hirschkop recalls. “She was the kind of person you met, and you instantly liked. She was very warm. She wasn’t vulnerable or needy but she very justifiably needed help.”
Richard, more casually dressed in jeans and a work shirt, was even quieter than his wife, listening but characteristically subdued. “You could see he didn’t want to be there,” Hirschkop says. “He was extremely uncomfortable being around lawyers.”
The couple listened as Hirschkop and Cohen went over the complaint with them. “Mildred always asked some questions,” Hirschkop recalls. “Richard didn’t ask anything.”
The lawyers explained that the case would draw a great amount of publicity and that could endanger the family’s privacy. “We told them a lot of things could happen,” Hirschkop says. “They hesitated and they talked about it but they agreed to go forward. It was a little surprising, but they knew there were not any alternatives. This is a case that had reached its time.”
Below: Joel Edgerton, who plays Richard; Virginia first lady Dorothy McAuliffe; Gov. Terry McAuliffe; Ruth Negga, who plays Mildred; and Peggy Loving at the Executive Mansion in fall of 2015. (Photo courtesy Governor of Virginia Terry McAuliffe / Jack Belhart, VDOT)
THE ROAD TO THE SUPREME COURT BEGINS IN RICHMOND
On Jan. 22, 1965, just five days before Hirschkop and Cohen were to appear in federal district court, Caroline County Circuit Judge Leon Bazile refused to vacate the Lovings 1959 conviction, as was requested by Cohen in 1963, writing in his ruling, ““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 marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
Hirschkop and Cohen then argued the case before the federal district court in Richmond. It was the only legal proceeding the Lovings had attended since their 1959 sentencing. Ultimately, the federal court declined to rule on the validity of a Virginia law, leading the lawyers back to the state courts. When the Virginia Supreme Court also upheld the state’s anti-miscegenation law in March 1966, the Lovings last chance rested with the U.S. Supreme Court.
When Hirschkop wrote to Mildred about the Supreme Court accepting the case for review, he also asked if she and Richard would attend the arguments. “She said, ‘If we don’t have to go, we would rather not. Please let us know what happened as soon as you can.’”
The Loving case was the first for Hirschkop and Cohen in front of the Supreme Court. They got help from additional counsel in writing the briefs, and they worked with several civil rights groups to file amicus briefs. They also held practice arguments in front of some ACLU lawyers.
On April 10, 1967, Hirschkop and Cohen held their oral arguments before the court. Attorney Robert McIlwaine argued on behalf of Virginia, referring to conclusions from alleged studies suggesting that mixed marriages had negative effects on society. On June 12, 1967, the justices issued their unanimous opinion, written by Chief Justice Earl Warren.
“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. These convictions must be reversed.”
Cohen and Hirschkop had a clerk standing by to pick up the opinion from the Supreme Court. After they read it, they phoned neighbors of the Lovings to deliver the good news.
“We were getting extensive calls from the press and so we set up a press conference at our office on the following day. It took some convincing, but the Lovings agreed to attend,” Hirschkop says.
The press conference was held in the law firm’s office library in Alexandria. As soon as Hirschkop walked in, he saw that Mildred “was glowing. Richard never changed composure, but he seemed lighter.” And Mildred gave Hirschkop a hug for the first time.
BACK TO CAROLINE
The Lovings left Hirshkop’s office as a legally married Virginia couple.
“The fact that they stuck together through his mess and they stuck together with the common interest to come back to Virginia and live with family speaks louder than anything that could be said or done,” says Hirshkop, who lives in Lorton and still litigates. “The funny part about this case is that no one was trying to be a hero. They were not out to beat the drum to change the law. They just wanted to be left alone with their children and their families.”
The Lovings remained very private after returning to Virginia, shying away from publicity as much as possible.
Until June 29, 1975, the family lived in the small cinderblock and wood home that Richard built. That day a drunk driver broadsided their car in Caroline, killing Richard and injuring Mildred, who lost sight in her right eye. Mildred lived in the county until her death in 2008. Their daughter, Peggy, who still lives in the Caroline area and is as private as her parents, is the only living member of the immediate family.
Getting first-hand information for the film proved to be difficult. “Peggy is very much like her parents. They are all humble people,” says Nancy Buirski, one of the film’s producers who also did the HBO documentary “The Loving Story. “They don’t see the things they did as heroic.”
In a rare television interview that aired in 2012, Peggy talks about her parents. “They were very loving, stern and private,” she says, smiling, “but with great determination.” She acknowledged that her mother didn’t want to be a “Rosa Parks and he [her father] didn’t want to be a Martin Luther King. I think the world needs to know that it was because of my parents that they can marry any way they want.”
“Loving” chronicles the power of the love story. “It reminds us that anybody can change history,” Buirski says. “We want that story to come through and we believe it has.”
The Virginia Film Office was determined not to let this Virginia story be told or produced in another state. “This was a milestone project with a life and meaning beyond the product of a movie,” says the office’s director, Andy Edmunds.
Next year marks the 50th anniversary of the Supreme Court decision on June 12. “We hope this movie will be a catalyst to remind people of this decision and Loving Day,” Edmunds says. “Telling this story where it happened was a healing of the injustice that it was.”
During the production of the film, a reception, hosted by the governor, was held at the Executive Mansion for the cast and crew. Peggy and some family members attended.
Edmunds understands the irony of that moment. “Fifty years ago the thought of Richard and Mildred walking through the front door as a married couple would have been impossible, and now we are honoring that. It’s proof of Martin Luther King’s great quote, ‘The arc of the moral universe is long, but it bends toward justice.’”
And the Loving decision continues to shape history. Loving vs. Virginia was one of the cases cited in groundbreaking same-sex marriage rulings across the United States in recent years, culminating in the Supreme Court’s June 2015 decision that made it legal nationwide.
“Its viability in seeking to protect certain fundamental and inalienable rights,” Hirschkop says, “continues on.”
