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Revisiting Loving v. Virginia After the Passing of Lawyer Bernhard Cohen

Virginia is for Lovers, state motto and welcome sign on a billboard surrounded by trees
By Joseph Fawbush, Esq. | Last updated on

In the middle of Supreme Court confirmation hearings for Amy Coney Barrett, the lawyer who successfully argued that bans on interracial marriages were unconstitutional passed away at the age of 86. It is a reminder of how far legal doctrines have come in a relatively short time and the importance of the Supreme Court in shaping America's cultural and legal landscape.

Loving v. Virginia remains relevant today, particularly in the wake of discussions about originalism, substantive due process, and other contested Supreme Court doctrines.

The Past Doesn't Repeat, but It Does Rhyme

Bernhard Cohen argued on behalf of the Lovings when he was still relatively new to the practice of law. The case, which ultimately held that anti-miscegenation laws violated the Equal Protection Clause Fourteenth Amendment and substantive due process, kicked off a series of equality and privacy rights cases that led to other landmark cases, including Roe v. Wade.

Nor are the legal arguments involved obsolete. Virginia used a similar argument for upholding the ban on "mixed marriages" that Justice Alito used in his dissent in last June's Bostock v. Clayton County. Namely, that the ban treated races equally by prohibiting interracial marriages for every race. Similarly, Justice Alito argued that Title VII of the Civil Rights Act treated every "gender" equally by allowing workplace discrimination against all LGBTQ workers for everyone instead of, for example, discriminating only against gay men.

Remember This Quote?

After being arrested in their bed at home at 2 a.m., the Lovings were convicted under a Virginia law prohibiting interracial marriage. However, the trial judge suspended the sentence on the condition that the couple leave Virginia. In his infamous and profoundly stupid sentencing opinion, the trial judge wrote that "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."

The Lovings violated this condition, however, returning to Virginia to contest the conviction. It was a brave thing to do, and Bernhard Cohen himself maintained this was the most challenging part of the case – getting it back to state court so it could be appealed.

A Distinguished Career That Didn't Focus on Loving

Bernhard Cohen went on to become a state legislator, although he did not often reference his role in Loving during his campaigns. It was a relatively obscure case in the 80s and 90s, his son Bennet told the Associated Press.

It wasn't until the recent documentary "Loving" and the similar legal arguments at issue in Bostock v. Clayton County that the public has revisited the case.

As the confirmation process for the nation's new Supreme Court justice wraps up, the death of the attorney and legislator who argued for marriage equality is helpful context for why these nominations are so hotly contested.

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