Just a bit over a month shy of the 41st anniversary of the landmark Supreme Court case, we learn that litigant Mildred Loving has died.
Loving and her white husband, Richard, changed history in 1967 when the U.S. Supreme Court upheld their right to marry. The ruling struck down laws banning racially mixed marriages in at least 17 states.
What the Richmond Times fails to mention was that the case originated in Virginia. The judge who convicted the couple was Harry L. Carrico, who served as Chief Justice of on the Virginia Supreme Court for 42 years, 22 years as Chief Justice, retired in 2003 and now has annual award issued by the Virginia State Bar in his “honor.”
The honor belongs to Mildred Loving and her husband Richard. Rest in peace, dear trailblazer.
VIVIAN J. PAIGE | All Politics is Local 
Aye, in my own backyard actually (Caroline County). Mind you the case was decided by the U.S. Supreme Court twenty years before I was born.
I saw her obituary in the paper (The Free Lance–Star) Sunday but had to wait until today to get a confirmation that it was her.
A student of mine just wrote about this case. He was excited to discover it. He wrote: “Since cohabitation and marriage were no longer a crime, society was able to challenge other racial stereotypes as well…” She and her husband did so much!
This courageous woman and her husband were true heroes in the battle for civil liberties in this country and her passing should be noted and her life honored the same way Rosa Parks was.
I do not hold it against Judge Carrico that he enforced the law of that time as he held it his duty to do so, but perhaps the Virginia State Bar should consider a Loving award (cup?) to be awarded to the attorney, judge, or litigant who contributes substantially to the never-ending struggle to maintain our civil liberties.
Respectfully, Carla, I don’t agree that Justice Carrico’s ruling was consistent with the law in 1966. He ignored Brown v. Board of Education, decided in 1954, and instead relied on Plessy v. Ferguson, an 1896 case that had been overruled by Brown. We owe a lot to people like the Lovings who showed such extraordinary courage at a time when it mattered most. I agree that the Virginia State Bar should honor the Lovings.
Here’s a pretty good discussion of the legal background:
Justice Carrico was the author of the Virginia Supreme Court’s unanimous 1966 opinion in Loving v. Commonwealth, upholding Virginia’s miscegenation statutes. Richard Loving and his wife, Mildred Loving, were convicted of miscegenation and sentenced to one year in prison, suspended on the condition that they leave the Commonwealth of Virginia and not return for 25 years.[1]
In Loving, Justice Carrico stated that “There is no dispute that Richard Perry Loving is a white person and that Mildred Jeter Loving is a colored person within the meaning of Code, § 20-58. Nor is there any dispute that the actions of the defendants, as set forth in the indictment, violated the provisions of Code, § 20-58.” He went on to rely on Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896) and its progeny, finding Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954) distinguishable, because Brown dealt with education and not marriage. Distinguishing Brown and its progeny, Justice Carrico observed that “it must be pointed out that none of them deals with miscegenation statutes or curtails a legal truth which has always been recognized that there is an overriding state interest in the institution of marriage. None of these decisions takes away from what was said by the United States Supreme Court in Maynard v. Hill, 125 U.S. 190, 31 L. Ed. 654, 657, 8 S. Ct. 723:
‘Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature.’”
Justice Carrico further held that “Although the defendants were, by the terms of the suspended sentences, ordered to leave the state, their sentences did not technically constitute [illegal] banishment because they were permitted to return to the state, provided they did not return together or at the same time.” He therefore remanded the case so that the decision could be modified to prohibit Mr. and Mrs. Loving from cohabiting as husband and wife in Virginia, a less restrictive condition than the 25 year suspended sentence.
The Loving decision was overruled by a unanimous United States Supreme Court in 1967. In Loving v. Virginia, the U.S. Supreme Court held that marriage is one of the basic civil rights of man, a fundamental freedom which could not be denied based on race.
[1] Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966)
Hey, I didn’t say I agreed with Carrico. I just think it would have taken cojones the size of Colorado for him to buck the legal system of that time and the insidious presence of states rights in virtually all of Virginia legal thought. Lots of courts were trying to distinguish Brown from the other cases before them, and it took a few smackdowns like the one the Supremes administered in Loving for them to get the point. Ah, the good old days when we had a SCOTUS that actually gave a damn about the Constitution. Now we have Scalia saying that torture isn’t punishment so it’s not forbidden by the 8th Amendment. And he has the nerve to call himself a “textualist” and a faithful adherent to the Constitution.
I agree!
May God grant Mildred Loving a place in heaven.
As a White bachelor who lives in a 90% minority apartment complex, and who rides a 75-80% minority ridership transit system, I realize if I do finally meet someone, odds are that she’s probably not going to be White. The Lovings paved the way. God bless them.
Another proof that Love conquers all!!!
Spotter – you also left out Griswold v. CN which was decided about 12 mos. before Carrico’s decision in Loving and invalidated some state restrictions on the purchase of contraception. The writing was on the wall. A young man with a long judicial career ahead of him like Carrico should have known better – it’s not like he was 70 when he wrote that opinion.
Here’s my contribution:
http://fairfaxdemocrats.org/2008/05/05/mildred-loving-a-life-with-meaning/
Loving was a major case in many ways. It was a harbinger of Roe v. Wade, it marginalized remaining discrimination laws, and it was one of the last great opinions of the Warren Court. These people changed Virginia and the country. It’s hard to believe that this only happened 40 years ago.
Some corrections: First, Senior Justice Carrico was only chief justice for 22, not 42, years. He was an active member of the Court for 42 years, and continues to serve as a Senior Justice.
Second, then-Justice Carrico was not “[t]he judge who convicted the couple.” Caroline County Circuit Judge Leon M. Bazile was. Justice Carrico was the member of the then-Virginia Supreme Court of Appeals who wrote the opinion. That’s not hair-splitting because, though most people either don’t know, ignore, or forgot it, Justice Carrico’s opinion remanded the case to the circuit court.
(The conviction was affirmed. The sentence–i.e., that Mr. and Mrs. Loving had to leave the Commonwealth and never return together–was overturned.)
Third, although he authored the opinion, Justice Carrico was one of a seven-man Court and the decision was unanimous. This means two things: he wasn’t the only one on the Court who supported the outcome, and even if he had not the outcome would have remained the same (6-1, rather than unanimously).
Fourth, “spotter” has plagiarized that long comment from Justice Carrico’s Wikipedia entry without citation.
Fifth, Vivian, it is true that the professionalism award is named in Justice Carrico’s honor. Perhaps you’ve never met the man, and judge him for one opinion out of literally hundreds in the 47-years he has served on the Court. Never having met him, you will not know his quiet gentility. Never seen him at work, you will not understand the completeness of his personification of legal ethics. You might assume that his opinion of the Court in Loving rose from racial animus, but Justice Carrico has never decided a case from personal regard for a party.
Did Justice Carrico get it wrong in Loving? It’s easy to look back now and say that he did. But the whole Court was on the same side. Prince Edward’s schools had been re-opened for less than two years when his opinion came down. Don’t forget the historical context. Yes, the Supreme Court of the United States got the decision right. But it’s wrong to characterize a man for one opinion written forty years ago.
Thanks, Scott. Maybe Phil Hirschkop and Bernie Cohen can help choose the recipient of the Carrico award.
Not – thanks for adding the proper cite. I did put it in quotes, although clumsily.
Virginia’s backwards segregation laws were changed bit by bit over decades by people like the Lovings who had the courage to do the right thing. It’s easy to forget those in positions of power who repeatedly did the wrong thing. I think they should be remembered for their actions. When a judge issues an opinion, and puts his name on it, I think he does it because that’s what he believes.
That’s a mighty fine bit of whitewashing, NAEDH. I have met Justice Carrico, have a passing familiarity with his work near the end of his career, and am well aware of his contributions to the community. But none of that erases the actions that he took (or failed to take) as a judge in Virginia in the 50s and 60s. Loving v. Virginia was not simply one of many cases. It was one of many cases in which Carrico played a major part in achieving or preserving morally repugnant public policy. That is part of his legacy, too.
Thanks, MB. See, we can agree on some things. I am sure that many of the architects of Massive Resistance exuded a quiet gentility, represented a personification of professional ethics, and never decided a case from personal regard for a party. In fact, one of the arguments on behalf of the Commonwealth was that this law, titled “Penalty for Marriage,” did not discriminate on the basis of race because it applied equally; it punished both blacks and whites for the crime of interracial marriage.
spotter – I updated your comment with a link to the Wikipedia entry. I hope you don’t mind.
NAEDH – I’ve changed the language in the original post about the time served on the SCVA; however, I do think it is splitting hairs to say that he convicted the couple.
Cases such as this have a way of defining a career. Whatever else Carrico did, there is no doubt in my mind that the Bar Association should not be presenting an award in this man’s honor.