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Two Dramatic Legal Scenes that Were Totally Left Out of New Loving Movie

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Loving is a magnificent movie about an interracial couple’s legal battle for the right to marry that goes all the way to the Supreme Court. But it is hardly a legal thriller.

The beautifully shot film focuses on the lives of Mildred and Richard Loving, not the legal arguments made in distant courthouses in Loving v. Virginia.  That’s too bad.

We decided to add two legal scenes to Loving to fill this gap.  Our scenes are far from boring.  We are adding a scene showing the lawyer for the Commonwealth of Virginia making crazy “scientific” arguments to the Supreme Court that his state’s anti-misenegation law is protecting society and children.  We see John Lithgow in the role. We also added a voiceover of Supreme Court Chief Justice Earl Warren reading his unanimous decision.

We envision keeping the movie’s practice of using the actual audio of the oral argument and the Supreme Court decision being read by Justice Warren. By the way, the Supreme Court does not say that marriage is an “inherent” right, as the movie’s postscript inaccurately states. It says it is “fundamental” right.

Scene inside the U.S. Supreme Court.  After the two lawyers for the Lovings argue to the court, Virginia Assistant Attorney General R. D. McIlwaine III walks to the lectern.  POV from the justices looking at McIlwaine. His argument is abridged but taken verbatim from the audio of the oral argument  to the Court on April 10 1967.

 Assistant Attorney General R. D. McIlwaine III: Mr. Chief Justice, may it please the Court.

As an assistant attorney general in the commonwealth of Virginia, I appear [in support of] the constitutional validity of the two [Virginia marriage] statutes which are involved in this case.

[P]reventing marriages between white and colored people . . . is supported by the prevailing climate of scientific opinion . . . .

[I]nterracial marriage are definitely undesirable [in] that they hold no promise for a bright and happy future for mankind.

[I]nterracial marriages are detrimental to the individual, to the family, and to society.

[I]nterracial marriages bequeath to the progeny of those marriages, more psychological problems than parents have a right to bequeath to them.

[The] statute serves a legitimate, legislative objective of preventing the sociological and psychological evils which attend interracial marriages…..

(looks up to see if Court is listening)

intermarriage is definitely inadvisable,

(McIlwain takes a deep breath)

[and] … wrong

because [interracial marriages] are most frequently, if not solely, entered into under the present-day circumstances by people who have a rebellious attitude towards—

(beat) towards society,

(beat) self-hatred,

(beat) neurotic tendencies,

(beat) immaturity,

(beat) and other detrimental psychological factors.”

It is not infrequent that the children of intermarried parents are referred to not merely as the children of intermarried parents but as the victims of intermarried parents and as the martyrs of intermarried parents.

Voice of Justice Hugo L. Black: May I ask you this question, aside from all questions from the genetics, psychology, psychiatry, sociology, and everything else aside from all of them, forgetting it for the moment, is there any doubt in your mind that the object of this statute, the basic premise on which they rest, is that the white people are superiors of the colored people and should not be permitted to marry?

McIlwaine: … The Act of Virginia of 1924 to Preserve Racial Purity, I think that is unquestionably true.

Justice Black: Is not the basic premise on which [all the Virginia anti-misgeneation statutes] are written that the white people are superior to the colored people and that they should not, therefore, be permitted to marry because it might  pollute the white race?

McIlwaine: Your Honor, I think that there is…. That—that’s which the original enactments were rested. I think that’s perfectly clear.

But, Your Honor, I say that you are facing a problem in 1967—

Justice Black: Well, whether it’s 1967 or 1868, makes no difference to me in discussion of the equal protection of the laws.

 In the last scene, after the Lovings have been told they won at the Supreme Court and there is a long shot of Richard Loving laying the cinderblock foundation for his long-planned house in a Virginia field as Mildred Loving and their three children watch, add voiceover from Supreme Court Chief Justice Earl Warren reading an abridged version of the unanimous Supreme Court decision issued on June 12, 1967 striking down the Virginia law as unconstitutional. This is from the actual transcript. 

Chief Justice Earl Warren: Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.

Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period.

The central features of this Act, and current Virginia law, are the absolute prohibition of a “white person” marrying other than another “white person”….

[In 1965, the Virginia Supreme Court of Appeals] concluded that the State’s legitimate purposes were “to preserve the racial integrity of its citizens,”

and to prevent “the corruption of blood,”

“a mongrel breed of citizens,” and

“the obliteration of racial pride,”

obviously an endorsement of the doctrine of White Supremacy.

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

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.

Credits roll

This is an opinion piece. The views expressed in this article are those of just the author.

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