Peter Wallenstein - Race, Sex, and the Freedom to Marry: Loving V. Virginia

Race, Sex, and the Freedom to Marry

LANDMARK LAW CASES & AMERICAN SOCIETY

Peter Charles Hoffer
N. E. H. Hull
Series Editors

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The Japanese American Cases, Roger Daniels
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The Sleepy Lagoon Murder Case, Mark A. Weitz
The Miracle Case, Laura Wittern-Keller and Raymond J. Haberski Jr.
Bush v. Gore: Exposing the Hidden Crisis in American Democracy, abridged and updated, Charles L. Zelden

For a complete list of titles in the series go to www.kansaspress.ku.edu

PETER WALLENSTEIN

Race, Sex, and the
Freedom to Marry

Loving v. Virginia

UNIVERSITY PRESS OF KANSAS

2014 by the University Press of Kansas

All rights reserved

Published by the University Press of Kansas (Lawrence, Kansas 66045), which was organized by the Kansas Board of Regents and is operated and funded by Emporia State University, Fort Hays State University, Kansas State University, Pittsburg State University, the University of Kansas, and Wichita State University

Library of Congress Cataloging-in-Publication Data

Wallenstein, Peter, author.

Race, sex, and the freedom to marry : Loving v. Virginia / Peter Wallenstein.

pages cm

Includes index.

ISBN 978-0-7006-1999-3 (hardback)ISBN 978-0-7006-2000-5 (paper)

ISBN 978-0-7006-2048-7 (ebook)

1. Loving, Richard PerryTrials, litigation, etc.

2. Loving, Mildred JeterTrials, litigation, etc.

3. Interracial marriageLaw and legislationVirginia I. Title.

KF224.L68.W35 2014

346.730163dc23

2014019707

British Library Cataloguing-in-Publication Data is available.

Printed in the United States of America

10987654321

The paper used in this publication is recycled and contains 30 percent postconsumer waste.

It is acid free and meets the minimum requirements of the American National Standard for
Permanence of Paper for Printed Library Materials z39.48-1992.

CONTENTS

EDITORS PREFACE

The laws at issue in some landmark law cases seemed at the time like Ayers Rock in the Australian outbackdominating a landscape, so solid and immovable that one could hardly conceive of the landscape without them. But the passage of time leaves such landscapes behind; one can barely make out the outcropping in the distance. Such a case arose out of the miscegenation laws of the American South. For many decades before 1967, no southern state would recognize a mixed marriage of a person of color and a white person. Virginias own law was a nineteenth century contrivance to prevent race mixing enacted at time when legislators believed that the bloodlines of the white race would be corrupted by intermingling with other races. The US Supreme Court accepted this position, and would not hear of it changing, until Richard Loving, a white man, and Mildred Jeter, part African American, part Native American, brought a suit to validate their Washington, DC, marriage in the eyes of Virginia law.

Peter Wallenstein has brought their story to life. That story is not just a Supreme Court case ending bans on mixed marriage, but a richly and deeply conceived story of a placeCaroline County, Virginiaand the people who lived in it from its settlement, through the Civil War, into the Jim Crow era and beyond. Wallensteins account is not one sided, although his views are clear enough. With his empathetic portraits of the people, their land, and the changing society of rural Virginia, he enables the reader to follow the Virginia story from slavery to freedom, and from mere freedom to equality. For example, Leon Bazile, the Virginia judge who denied their petitions, was as much a part of that landscape as the couple. There are many other, similarly compelling portraits in this stirring tale.

Seamlessly interwoven into these personal stories is the larger narrative of race in American history, the case here serving as a microcosm of changing attitudes toward race. Indeed, 1967, when the Supreme Court decision came down, was a moment in time so full of history that one almost cannot comprehend today how much was at stake in the Lovings suit. By locating the Loving case in the long arc of the story of race, Wallenstein reminds all of us just how much depended on the arguments of two young lawyers and the open-mindedness of nine old men.

Wallenstein knows the places and the people first-hand. The result is legal history from the heart as well as the head, a book on the case like no other.

PROLOGUE: ANNIES PETITION, 1808

Beginning in early 1808, a drama played out in Virginia, as Annie Gray and seven other people held as slaves in Caroline County sued for the recovery of their freedom. The people being held in slavery included Annies children and grandchildren: Dick, Peter, Moses, Sam, Phobe, Esther, and Phillis. Much was at stakesome peoples freedom, someone elses property. The outcome hinged on events in colonial Virginia from some fifty years before, in the 1750s and 1760s, well before the American Revolution, around the time of the French and Indian War. Thomas Wyatt had purchased a young woman named Molly from the estate of Thomas Conner, and her social and legal identity back then was crucial to her daughter Annies case many years later. Some white people who had material knowledge were unable from age and infirmity to come to Caroline. So they gave their testimony in depositions, taken not just in next-door Spotsylvania County but also some 150 miles to the west, in Lynchburg. The process unfolded slowly, as depositions and deliberations continued into 1809 and then on until late 1810.

As someone held in slavery in early national Virginia, Annie Gray had one legal rightto sue for her freedom. Or as the Virginia Supreme Court of Appeals phrased it: Persons in the status of slavery have no civil rights, save that of suing for freedom when entitled to it. A 1795 Virginia law spelled out the procedure. On presentation of a petition for recovery of freedom, the court assigned the person an attorney, who must investigate and make an exact statement to the court of the circumstances of the case, with his opinion thereupon. If persuaded that the case should go forward, the court summoned the possessor to answer the complaint.