Loving v. Virginia, 44 years on

Last night, LitSpouse and I attended a viewing of the documentary The Loving Story and a panel discussion afterwards about the Supreme Court case that ended miscegenation laws. It was eye-opening in many ways; I encourage people to become familiar with Loving v. Virginia and to see the movie if they enjoy documentaries. The most interesting parts were comments made by the panelists about the relevance of the same ideas and arguments in many of today’s discourses about marriage, equality, rights, and liberties.

In 1958, Mildred and Richard Loving were convicted of being in an interracial marriage (to which they pled guilty, because they were) and sentenced to one year in jail, with the sentence suspended if they left Virginia for the next 25 years. They were from a very rural part of Virginia and had a hard time adapting to living in urban DC; they wanted to live near their families. The film does an excellent job of describing the legal wrangling that followed, using film footage from the early 1960s of the Lovings, their lawyers, and contemporary news broadcasts about the issue. When the case went to the Supreme Court in 1967, Virginia’s law against interracial marriage was declared unconstitutional, along with similar laws in 15 other states.

Some of the details in the film are really amazing; I had no idea this case, and the subsequent elimination of these laws, was so recent. (I first learned the word “miscegenation” in ninth grade when my high school was doing the Rodgers and Hammerstein musical Showboat. I had to ask my mother why the mixed-race family had to move away when their background was discovered. I suppose that’s progress of a sort, although ignorance of history is not the coin with which I would buy that kind of progress.)

The film really focuses on Mildred Loving, as she is the most moving character of the whole story, and manages to be emotionally engaging and present relevant information at the same time. If documentary films aren’t your cup of tea, the Wikipedia article linked above has some of the same details, including the breathtakingly racist opinion rendered by the Virginia court, but to see Mildred Loving as a person, the film is your best bet.

The panel discussion afterwards included Rep. Bobby Scott (D-VA), Rep. Jerry Nadler (D-NY), Phip Hirschkop, one of the original attorneys to argue Loving v. Virginia before the Supreme Court, and Nancy Buirsky, filmmaker.

Ms. Buirsky said openly that one of the goals of the film was to create empathy through a personal connection between the viewer and Mildred Loving. (It’s not that her husband wasn’t an empathetic figure; it’s that he was extremely laconic, so most of the commentary on how they just wanted to live a quiet life together came from Mildred. Some of the photos of the two of them helped me connect with him, but he was manifestly uncomfortable in front of video cameras.) Ms. Buirsky’s explicit acknowledgment of the role empathy plays in our social discourse and changing attitudes was refreshingly realistic.

Rep. Scott spoke about the spirit of the times in the late 1960s and how much change there has – and has not – been since then on matters of discrimination. He said that many people misread Brown v. Board of Education as implying that equal provision in separated circumstances would be permissible; he emphasized that Brown v. Board found separation itself to be unconstitutional. He said that he thought civil rights legislation was being undermined by “faith-based” initiatives today: the government tells private business owners that they can’t discriminate in hiring employees who they’ll pay with their own money, while the government gives money to organizations who are legally allowed to discriminate in their hiring practices.

Rep. Nadler spoke movingly about how he saw a lot of the history of this country as an expansion of the phrase “all men are created equal” in the Declaration of Independence, especially expansions like including women and people of all races as “equal,” or at least trying to.

Mr. Hirschkop followed that up by saying that he found the next phrase even more important, “…that they are endowed by their Creator with certain unalienable rights.” Those rights, he argued, are not granted by society, they are ours at birth, and society has to learn to protect them.

Some discussion followed about how the Loving case is and isn’t a precedent for the fight for marriage equality for QUILTBAG people today. The most telling point on that front, for me, was when the film played a recording of the attorney general for Virginia in the Loving case arguing that the state needed to prevent interracial marriage to protect the children. [1]

When I hear conservatives fighting a rearguard action against marriage equality using the same arguments today, and being eloquently refuted by the children they purport to protect, I am certain, in a way I never have been before, that marriage equality will come to pass. [2]

As we left the screening, which was held in the US Capitol Visitors’ Center, the setting sun made the Supreme Court building positively seem to glow. You can’t read it in the photo, but that frieze on top of the Supreme Court building reads “Equal Justice Under Law.” May it be so!

[1] One of the justices asked him if that wasn’t similar to the argument made in Brown v. Board, and he said it was. Brown had been decided 13 years earlier, so aligning one’s position with the losing arguments in a previous case is what I believe lawyers refer to as “not a wise move.”

[2] For more on the historical changes in state and religious regulation of marriage, see Stephanie Coontz’ excellent article.

Edited for clarity and flow and to add link in endnotes.

School Prayer: Do conservatives really want what they might get?

Today I called the office of a Virginia senator and told his staffer that if the senator didn’t want me to open a high school math class by praying to the goddess Kali, he ought to take my advice and vote against the bill under consideration.

Let me explain. The American Civil Liberties Union in Virginia periodically sends out alerts advising members that they may want to lobby members of the Virginia General Assembly (state government) on certain bills. One such came up recently: HJ 593, misleadingly titled “Amending the Virginia Constitution Concerning Freedom of Religion.” You can read the ACLU position. Basically, there is  no good reason for this bill to be written the way it is (freedom of religion is already guaranteed in the Virginia state constitution, thanks to Thomas Jefferson), but there is very good reason to believe that this bill is an attempt to confuse the issue of prayer in public schools, with the primary goal of letting Christians pray publicly, such as during classes, over the PA, or at graduation, and to do so “in Jesus’ name.”

Brief tangent into Constitutional law (please feel free to skip): The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Those two clauses, the Establishment Clause and the Free Exercise Clause, are often seen as being in tension with each other. This is a false tension; in fact, the requirement that Congress not establish a religion is necessary to allow the free exercise. Only people who want their division of religion – their denomination or sub-church – to establish theocratic rule are afraid of the Establishment Clause limiting their rights under the Free Exercise Clause. Since the public schools are paid for by government, their actions can reasonably be read as an establishment of religion. Thus, the Supreme Court has struck a delicate balance in numerous precedents where, roughly, students are allowed to pray any way they like, but no one is allowed to lead someone else in prayer, especially not teachers or school employees, and especially not in a situation where that person seems to be speaking for the school. (Thus, even a student cannot lead a “voluntary” prayer over the PA or at graduation, in most circumstances.) Part of the problem here is that students can’t easily opt out of prayer over the PA or at graduation or even in their classrooms; since they are to some extent compelled to be there, it is especially important that they not be compelled to participate in prayer, so stricter limitations are placed on actions that might be perceived as leading prayer among those compelled to be there.

The purpose of this bill in the Virginia General Assembly seems to be to challenge the Supreme Court ruling on specific points by asserting that individuals have particular rights. Those individuals have those rights, but when they act in a particular role or in a particular sphere, their rights are restricted. If you’re a public school teacher, you aren’t supposed to push your religion on your students (who are compelled to be there, after all, while you are acting as an agent of the government). This is true whether your religion is Christianity, Judaism, Wicca, Hinduism, or anything else. As described above, as far as we can tell, the goal of this bill is to allow teachers to pray (while giving lip service to their students not being required to join in), especially with prayers “in Jesus’ name,” and to allow students to pray as representatives of the school over the PA or at graduations.

As the ACLU suggested, I emailed specific senators to argue against the proposed amendment. The reply I received from one senator’s office read as follows:

Thank you for letting me know of your opposition to HJ 593.

However, the Resolution does not address the subject you spoke of in your letter to me.  Specifically, it amends current free exercise of religion provisions of the Virginia Constitution to permit prayer and the recognition of religious beliefs, heritage, and traditions on public property, including public schools in order to secure further the people’s right to acknowledge God.  The amendment also prohibits (i) the composing of school prayers by the Commonwealth and its political subdivisions, and (ii) requiring persons to join in prayer or other religious activity.  The current free exercise of religion provisions of the Virginia Constitution mirror those in the First Amendment of the United States Constitution and provide for the free exercise of religion and prohibit compelling persons to participate in religious activity.

The problem is that the courts have held that when we pray publicly, we do not have a right to refer to deity as we might wish, that is what has made this amendment necessary.

Please feel free to call or write on this or any other subject of interest to you.  I can best represent you by hearing from you and look forward to our continued service together.


Stephen H. Martin



Check out that third paragraph. This reply is so disingenuous it’s almost funny.

I was so upset about this that I took advantage of the conveniently attached phone number to call the senator’s office. I pointed out to the staffer that since this bill seems intent on defending all individuals’ “right to refer to deity as we might wish,” that would imply defending my right to refer to deity as the Goddess, or specifically as the goddess Athena, or Hecate, or Demeter, or Kali.

Since this specifies prayer on school property, this bill would seem to be trying to establish a right for me to stand up in front of the high school math class that I teach (note that I am a certified teacher and could very well be in this position) and offer such a prayer. I would, of course, have to point out that students aren’t compelled to pray along with me, but they’d have a darn hard time avoiding the fact that I’m praying. Which is why the Supreme Court has put in place the restrictions that it has. Which is why the Virginia state government shouldn’t be trying to challenge those restrictions.

I agree with the Supreme Court. If I were a high school teacher, I would have no business praying in front of my class, whether I’m Christian, Wiccan, or anything else. But this attempt to allow school prayer in inappropriate circumstances seems like a way for the senator to support the “rights” of his religious majority. If the senator isn’t going to support those “rights” when it comes to my religious minority, he should oppose the bill.

The staffer took notes and said that she would deliver my comments to the senator. I hope she does. I hope that the specter of one of his children being led by a teacher in prayer to a deity he doesn’t believe in is enough to help him understand viscerally how this bill and similar actions by the Religious Right have a deeply disturbing impact on religious minorities on a regular basis. Since it looks like this bill has died in committee – thankfully! – that may be a moot point.

On the other hand, though, if this bill was passed, the Religious Right might come to regret it as they have come to regret passing the Equal Access Act. Originally designed to allow students to have Christian clubs, the act also allows gay rights clubs and atheist clubs. I believe the technical term for that is that they were “hoist on their own petard.”

Still, we need to fight efforts like this. It’s not enough to let them backfire. I don’t want Wiccan children being forced to sit uncomfortably through teachers or peers leading groups in prayer “in Jesus’ name,” just as much as I don’t want to impose my beliefs on others who disagree with me. If it takes arguments like asking a senator whether he’d want his children led in prayer to Kali, then those are the arguments we need to make.