Defending Love Claire Barber and Kate Doherty Senior Division Performance Process Paper Word Count: 494

1 Our National History Day topic is centered around the Loving vs. Virginia court case which abolished anti-miscegenation laws throughout the United States. We chose this topic because of its proximity to where we live with Claire living on the border between Bowling Green and Caroline County and Kate living in downtown Fredericksburg both close to the Lovings’ residence in Caroline County. We feel honored to locally have such a monumental case. We began our research at the University of Mary Washington’s Simpson Library. We were able to find law books that discussed the changes in the law during this time. Additionally, we saw how many people wrote first-hand accounts of the discrimination that those in interracial marriages faced before and after the ruling. It was really fun finding different means of collecting information as well, including an interview with the Assistant Commonwealth’s Attorney for the city of Fredericksburg. At first, we were disappointed that the UMW library did not have the physical Free Lance-Star newspapers for the year of 1967, but we were informed that they had been converted to microfilm, which was challenging for us. As two teenagers who had never even heard of microfilm and it took trial and error to learn how to load the machine and in the end, use it. To gain more insight into the personal aspects of the case, we tried to get in contact with Bernard Cohen, one of the original lawyers on the Lovings’ case, who still lives in Fredericksburg. This led us to a woman named Adele Uphaus who is a reporter with our local newspaper, the Free Lance-Star and has published a number of articles about Mr. Cohen. She said that because of his health we could not interview him, but in turn, she recommended we talk to Philip Hirschkop, another lawyer on the case who still practices law in Northern Virginia. After an hour-long conversation with him, we both felt like we knew Mr. Hirschkop and the case on a deeper level. This impacted our medium for the project moving forward. We were going back and forth on whether we wanted to do a website or a performance. We already had experience making websites, so we wanted to try something new. We both really enjoy performing in our school’s musicals and wanted to show history in a new light. By choosing this medium, it allowed us to share the emotional aspects that went into being a part of this case outside of the cinema portrayals of the Lovings. It gave us the ability to showcase how eloquent and passionate Philip Hirschkop was when speaking to us about this case as well. The Loving vs. Virginia case broke barriers because it transformed the way the public responded to relationships between people of mixed races. It took time for society to accept it, but without the help of Mr. Hirschkop and Mr. Cohen, it would not have been legalized so soon and so famously.

2 Claire Barber Kate Doherty National History Day 2020 Senior Division Fredericksburg Academy

Defending Love

Picture of the Set and Props

3 Props: Two coffee cups Stack of files labeled with “Loving” Constitutional Law books Rotary phone Two pens Period table Period Waterford pineapple lamp Two period chairs

Setting: A small wooden and white lacquer conference table is in the center of the stage. Along either side, there are two wooden chairs. The table has a few file folders strewn about along with period law books. At each place setting sits a yellow legal pad, metal pen, and coffee cup. The characters sip from the cups periodically throughout the scene. In the center of the table, there is a phone that is to be used later on in the scene. Behind the phone there is a pineapple lamp with the light turned on.

Actors: Claire Barber - Philip Hirschkop and Narrator (via recording) Kate Doherty - Bernard Cohen and Mrs. Mildred Loving (via recording)

[ Bernard Cohen is seated in a chair on stage left. He is frozen in a stance in which he appears to be writing notes on the yellow legal pad on the table in front of him. Philip Hirschkop is off stage right.]

NARRATOR In 1958, Richard and Mildred Loving were married in the District of Columbia because their interracial marriage was illegal in the state of Virginia where they were from. After their nuptials, the couple made their home in Caroline County, VA. They lived peacefully until one night while the Lovings were sleeping, police entered their home and arrested them. They were then tried and sentenced to not being allowed to return to Virginia together for 25 years. [ The scene unfreezes. Philip enters into the scene miming a door opening. Bernard stands to greet him and shakes hands and mouths greetings. The interaction ends with them both seated on their respective sides of the table continuing to mouth a conversation while jotting down notes and drinking from their white cups. The narrator continues...] This brings us to June 11th, 1967. Philip Hirschkop and Bernard Cohen, the Lovings’ defense attorneys, have convened to discuss the proceedings of the case and inform the couple about the trial and its path to the Supreme Court of the United States. Philip Hirschkop was brought into

4 the proceedings after the case turned from being a federal case to a civil case. Eventually, the two young lawyers saw the case all the way through to the Supreme Court of the United States. The Loving vs. Virginia case broke barriers by abolishing anti-miscegenation laws and creating social change throughout the United States of America which could not have been possible without the determination of these two young lawyers.

PHILIP [ Leaning back in his chair slightly and tapping the pen on the legal pad.] We really have a case here. It’s been pretty procedural so far, but now that we’re going to the Supreme Court, this action is really starting to make some noise.

BERNARD I didn’t think we would be able to appeal all of the way to the Supreme Court. Especially with how it started, being a federal case and all.

PHILIP True, we were never supposed to get this far. It was intended to just be a reduction of sentence. Not to mention Naim vs. Naim, a similar case, was dismissed ten years ago. I’m actually surprised that the ACLU let us stay on the job considering how young we are.

BERNARD [ Leaning elbows on the table and angling body inward.] Well, this certainly isn’t a clean case, they broke the law by coming back to Virginia before their twenty-five-year sentence was up. [ Tapping pen to temple as if remembering something.] By the way, we have to send off the letter requesting your presence in the Supreme court. You have not been out of law school for the required amount of years. I want you to deliver the opening statement because you are more seasoned in civil law.

PHILIP Oh, thank you. [ Philip excitedly stands with the legal pad and pen in his hand, showing his age.] We should bring up the lack of due process and the equal protection clause. [ Small laugh.] We are almost lucky that our first judge was racist because it helps to solidify our argument. What was it he said? [ Tapping pen to paper as if searching for the quote.] "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

5 for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." [ Philip sits confidently. ] This could be a great example of the racially fueled bias that we have already faced and may continue to face in courts that are supposed to be impartial. [ Jots this down on paper.]

BERNARD That’s really good. This will be the first time that you have had a major case like this that will progress to the Supreme Court. [ Leaning back in the chair, arms and legs crossed.] I suppose you are happy you signed onto this case? With it escalating and all?

PHILIP I don’t know. [ Beat.] The first time I ever met Mr. and Mrs. Loving I instantly felt the urge to help them. The moment I exchanged my first words with Mildred, I could tell she was just a wonderful human being. From the way she interacted with her kids to the quiet strength she has possessed throughout this whole process. [ Beat.] They valued their family so much that they would rather break the law than move somewhere where their marriage is legal and have to leave their family behind. It makes me want to work even harder because these good people don’t deserve to go to the penitentiary for five years without a fight.

[ Phone rings. Bernard nods to Philip signaling he can take the call. Bernard picks up the phone. ]

BERNARD Hello?

MRS. LOVING [ Recording plays.] Hi Mr. Cohen, this is Mildred, Mildred Loving. [ Beat.] I was wondering about the changes in our case and how it is moving along?

BERNARD Hi Mrs. Loving.

6 [ Said loudly while nodding to Philip to indicate who is on the phone.] Yes, Mr. Hirschkop and I are actually discussing your case right now. We are going to appeal with the use of due process and the equal protection clause to support your case and hopefully get the court to provide you closure and justice for both of your hardships. Mr. Hirschkop [ Pointing to Philip.] will argue due process and I [Pointing to himself.] will argue equal protection. Equal protection is something that all humans deserve in court, no matter their gender, age, or race. The anti-miscegenation laws in place right now entirely contradict the 14th amendment. We will prove that they discriminated against you and do our best for you, ma’am. These are not health and welfare laws. These are slavery laws, pure and simple. Mr. Hirshkop will now explain due process to you. [ Bernard hands the phone to Philip and writes something down.]

PHILIP [ Taking the phone. ] Hello Mrs. Loving, this is Philip Hirschkop. The state is denying you an inalienable right and we need to stress that point. There is nothing about marriage in the United States Constitution. We will make sure that the court understands that the state cannot interfere with who people love. [ Standing and starting to walk around to the front of the table.] Due process incorporates several main points from the Bill of Rights which states that the government, whether that be state or national, must provide legal and fair procedures. It protects citizens’ life, liberty, and property. We are going to show that the state did not give you this protection. These antimiscegenation laws are classified under Jim Crow laws which were abolished in 1964.

MRS. LOVING [ Recording plays.] I’ve been reading in the papers and seeing all of the hate crimes recently. I [Beat. ] I am just really worried about backlash. Is anything going to happen to us or heaven forbid, my children?

PHILIP [ To Bernard covering the receiver of the phone. ] She is worried about their safety.

BERNARD [ Standing, Bernard nods, reaching out a hand towards the phone.] I can explain. [ Bernard takes the phone from Philip. Philip turns and takes a seat. ] Yes, of course. Your safety is our primary concern, ma’am. There hasn’t been any national news breaking so far, but the case becoming open to the public is inevitable now that it’s moved up

7 this far in the court system. You will experience some backlash after the news breaks on the ruling, but we will do our best to make sure you are not put through any more pain than you are already enduring. Just think of all of the people you are helping down the line. This case will help change public opinion and make your life what you have both longed for.

MRS. LOVING [ Recording plays.] I think it is for the best that my husband and I don’t go to the Supreme Court in person. I don’t want to be worrying about our safety during such a public hearing. Plus, we can’t add too much to the trial.

BERNARD [ Nodding.] Of course Mrs. Loving. We completely understand that you have to do the best for you and your family, and if not appearing in court is your choice, then we will be there on your behalf. We will update you during breaks and after the final ruling is made.

[ Hands the phone to Philip and takes a seat.]

PHILIP We are both working very hard on your case Mrs. Loving. I will be providing opening statements. [ Holding up the legal pad.] I am thinking of leading with, “You have before you today what we consider the most odious of the segregation laws and the slavery laws, and our view of this law, we hope to clearly show, is that this is a slavery law.” [ Beat.] I think it will be an impactful opening statement. I am prepared for this; my specialty is civil law. I worked in Alabama before being brought onto your case by Mr. Cohen’s old law professor for that very reason. I was in Birmingham at the time of the church bombing which instilled in me a desire to pursue change in this country.

MRS. LOVING [ Recording plays.] Thank you for all you are doing for us. [ Beat.] We never imagined all of this. I need to put the kids to bed now. Thank you again. Have a good night.

8

PHILIP Will do, Mrs. Loving. Good night. [ Puts the phone down.] I feel like this is huge, Bernie. I really feel like this could change the future as we know it. I knew this case was monumental from the start, but now that it’s actually happening, I’ve never been more excited!

[ Phone rings again and Bernard picks it up. He stands behind his chair grasping the back.]

BERNARD Oh, hello Mr . Loving. Is there something you wanted to tell us? [ Beat.] You want us to tell the Supreme Court Justices of the United States that? [ Beat.] Okay, we will. Good night to you both.

[ Bernard sits with his head in his hands.]

PHILIP What did he say?

BERNARD He said, “Tell the court I love my wife.”

[ Both Bernard and Philip are frozen in a tableau looking at each other half-heartedly. The final tape recording of the narrator begins to play.]

NARRATOR The ruling by the Supreme Court changed the lives of Mildred and Richard Loving. The abolition of anti-miscegenation laws in the United States of America allowed the Lovings to live without the fear of being arrested and gave them the freedom to live their lives as they saw fit. It allowed them to pursue their own meaning of happiness. This case helped others to do the same, serving as a precedent for the Obergefell vs. Hodges case of 2015 which legalized same-sex marriage in the United States. The Loving vs. Virginia case is one of the largest, most impactful civil rights cases in United States history; it legalized marriage as we perceive it today – between people who love each other, no matter the sex or race. Both Bernard Cohen and Philip Hirschkop went on to break many other legal barriers in history as well. Mr. Hirshkop states that although he was impacted by this case he enjoyed fighting for other great causes including arguing for the

9 right for women to work for a longer time before having to leave for maternity. Without the strong lawyers representing this case and the brave Loving family, the anti-miscegenation laws would have continued to act as barriers between two people in love.

10 Bibliography

Primary Sources

Application for Marriage License. 1920. Encyclopedia Virginia,

www.encyclopediavirginia.org/media_player?mets_filename=evr8281mets.xml.

Accessed 18 Feb. 2020. This application for a marriage license proves that the state

proves how important the act to preserve racial integrity truly was. It was put in place to

prevent any couples from marrying if one of the people was even 1/16th colored. This

shows the incredible racism seen as normal.

Berry, Bill. "Interacial Marriages in the South." Ebony . EBSCO eBook Collection,

web.a.ebscohost.com/src_ic/pdfviewer/pdfviewer?vid=0&sid=9876949b-bb73-4ecd-830

9-c6fdd32103ac%40sdc-v-sessmgr02. Accessed 13 Oct. 2019. This document is a good

representation of the lasting impact of the court case on the views of the public. It was

written in the 70s so it provides a good look public opinion after the case. It also shows

how the views had changed and that many people could get married and still live in the

south. Hence the name of the article. This article also provides examples of how racism

was still present even though the article was written sometime after the fact.

Cavan, Ruth Shonle, et al. American Marriage: A Way of Life. This book serves as a great

indicator of public opinion of mixed marriages before the Lovings got married especially

because the book was published in 1959. This book talks about the struggles the couples

would face in regard to housing and dining outside of their house. Inside they talk about

how the couple might experience loss of friends and family. This book can be used to

show the hardship they faced.

11 Dewar, Helen. "Victor in Mixed Marriage Case Relived: 'I Feel Free Now...'" The Washington

Post, 13 June 1967. This newspaper article also from the same time period is a great

place to get many direct quotes from the Lovings because they include an interview with

the couple. The couple states how they had faith in the justice system and is a great

example of the times and how the media chose to portray the events.

Eubank, Stephen Reed, Esq. Telephone interview. 8 Apr. 2020. Mr. Eubank is the

Assistant Commonwealth's Attorney in Fredericksburg Virginia. He discussed

the importance of the bill of rights to the people of the United States. He

also provided great information including the 14th amendment specifically

how it was the first amendment to apply to the states in the US and not

just apply at the federal level. He also gave useful information on the

specifics of Virginia law which applies to the Lovings case because it took

place in Virginia.

Hirschkop, Philip. Video conference interview. Conducted by National Endowment for the

Humanities, 1 Dec. 2016. Everything was extremely helpful in understanding the case

and the order in which it proceeded. It also provided an insight into Hirschkop’s

personality.

Hirschkop, Philip Jay. Interview. 8 Jan. 2020. The interview provided insight into Hirschkop's

experience working on this case and his own views. He provided many reasons behind

the many decisions that were crucial in the case.

Loving, Mildred. "Loving for All." Fr ee Marry,

freemarry.3cdn.net/8782f81bee208ee78d_df2jmv9gq.pdf. Has some good quotes

12 provides a first hand telling of the ups and downs of the case from Mrs. Loving’s

perspective.

"Loving Appeal Upheld: Miscegenation Law out." The Free Lance Star, 12 June 1967. Google

News ,

news.google.com/newspapers?id=TQFOAAAAIBAJ&sjid=AYwDAAAAIBAJ&pg=644

6%2C4400668. Accessed 13 Nov. 2019. This source is from the Free Lance Star and

gives a notable opinion on the Lovings’ case. It also provides some facts about the case.

Northup, Stephen. "Court Quashes Virginia Ban on Interracial Marriages." The Washington Post,

13 June 1967, A1 sec. This article is from a time period newspaper so it shows how the

media chose to portray the case to the public. This piece also serves as a great example of

how the state decided to defend the law. This article also tells about what other states are

doing about the outdated laws.

Report on Loving Case 1967. ABC News, 1967. This video shows the Lovings and their children

at their home and gets their side of the story. The Lovings speak about their hardships and

show their struggles.

United States, Supreme Court. Lovings v. Virginia. United States Reports, vol. 388, 12 June 1967.

Library of congress,

cdn.loc.gov/service/ll/usrep/usrep388/usrep388001/usrep388001.pdf. Accessed 25 Aug.

2019. This source was really valuable for understanding the legal side of the Loving case.

It outlines a good background and a summary of the case. It provides many quotes of

crude language and backwards thinking.

13 ---, ---. Loving v. Virginia. Supreme Court Reporter , vol. 395, 12 June 1967, pp. 2-13. Google

Scholar,

scholar.google.com/scholar_case?case=5103666188878568597&q=Virginia+v+loving&h

l=en&as_sdt=4,47,60. This source shows some of the prejudice and the lack of separation

between church and state.

---, ---. V irginia v. Loving. Supreme Court Reporter , vol. 338, 10 Apr. 1967. Encyclopedia of

Virginia, Virginia Humanities,

www.encyclopediavirginia.org/Excerpts_from_a_Transcript_of_Oral_Arguments_in_Lov

ing_v_Virginia_April_10_1967. Accessed 25 Apr. 2014. This source contains excerpts

from the transcript of an oral argument from when the Lovings case was presented to the

Supreme Court. This is really useful when creating a script.

"Variety." V ariety, vol. 334. EBSCOhost ,

web.b.ebscohost.com/ehost/detail/detail?vid=13&sid=804cef8d-ec4d-405e-b787-facb87c

b8cc0%40pdc-v-sessmgr06&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#AN=12046

9587&db=f6h. Accessed 2 Oct. 2019. Excerpt originally published in V ariety, Penske

Business Media. This could be used as a great source to support the impact of the case be

telling what is going on around that time.

Villet, Grey. "The Loving Story." The International Center of Photography,

www.icp.org/exhibitions/the-loving-story-photographs-by-grey-villet. This source has

great primary source photos from the time period. The pictures show the Lovings and

their children.

14 Washington, D.C., Legislature, Assembly. Marriage License for Richard Perry Loving and

Mildred Delores Jeter. 2 June 1958. The Nation Digital Archive,

catalog.archives.gov/id/17412479. Accessed 28 Jan. 2020. 1958 Legislature. This is the

primary source for the Lovings' Marriage license. It shows that they did get married in

D.C. and the primary source dates.

It is purely procedural. It's amazing how something so simple in the District of Columbia

would throw this couple into years of fright.

White, Jean M. "Court Overturns Virginia's Ban on Mixed Marriages." The Washington Post.

This newspaper article sum creates a brief outline of the event and the court proceedings.

This article goes over how the other similar laws in 15 other states are soon to be

abolished after the Virginia court ruling. This is also a good source because it was written

during the time period and a day after the ruling.

Secondary Sources

Atkins, Camille. Interview. 27 Jan. 2020. The most useful information is in the beginning when

Mrs. Atkins discussed the situation with her great great grandfather having a relationship

with a black woman and her and their children being recorded as slaves. This adds to our

knowledge of the widespread racism that was experienced prior to the Loving case. The

interview also allowed us to have a better grasp of the areas where the Lovings lived.

Bespoke Unit. "Sport Coat Guide: How to Wear a Sports Jacket with Style." Bespoke Unit,

bespokeunit.com/suits/jackets/. Accessed 12 Feb. 2020. This source was great to learn all

15 of the different types of suits and terminology used. From this, we can learn the proper

names for the business attire worn during the 1960s.

---. "The Ultimate Guide to Suit Fabric Types." Bespoke Unit, bespokeunit.com/suits/fabrics/.

Accessed 12 Feb. 2020. This was a good website to see the variety of choices for fabric.

This helps with costuming and understanding men's fashion.

Brown, Bryan. "The Right to LOVE." New York Times Upfront [Fredericksburg], Jan. 2017.

EBSCOhost,

web.a.ebscohost.com/ehost/detail/detail?vid=4&sid=47a77425-4ed5-4b52-9fa8-6837a21

ec23d%40sessionmgr4007&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#AN=120544

928&db=f6h. Accessed 1 Oct. 2019. This article written by the New York Times in 2017

provides several good quotes, historical context on work against segregation and

mixed-race marriages. It gives good background information and facts about their case.

"The Court and Its Procedures." Supr eme Court , www.supremecourt.gov/about/procedures.aspx.

Accessed 28 Jan. 2020. This is a great source to explain the background of the supreme

court.

Farber, Paul Lawrence. Mixing Races: From Scientific Racism to Modern Evolutionary Ideas.

Baltimore, Johns Hopkins UP, 2011. Written in 2011, this book outlines how in some

towns, a "mixed marriage" was one of mixed religions, and the idea of an interracial

marriage was not what the main person thought of when he first learned about mixed

marriages. The last few pages also give the facts about the Loving case. This book gives

many views on how religious, scientific, and different minds see mixed relationships and

how all of those ideas played into the allowance of mixed race marriages.

16 The Loving Story. Directed by Nancy Buirski, produced by Nancy Buirski and Elisabeth

Haviland James, adapted by Elisabeth Haviland James. This source is filled with great

primary source videos. It includes personal interviews with the Lovings and provides

context for the racism experienced at the time.

Uphas-conner, Adele. "Historical Marker Commemorating the Lovings to Be Dedicated in

Caroline." Richmond.com,

www.richmond.com/news/virginia/historical-marker-commemorating-the-lovings-to-be-d

edicated-in-caroline/article_9b34c4de-96ec-5d7e-b523-d8b85f6e07c7.html. This

document tells of a plaque dedicated to the Lovings and shows the wording on the plague

and the purpose of the placement. It also provides a brief overview of the case and

argument as a whole.

Uphaus-Conner, Adele. "Spring Arbor celebrates resident Bernie Cohen, who argued Loving v.

Virginia case before the Supreme Court." The Free Lance Star [Fredericksburg], 18 Jan.

2019. Fredericksburg.com,

www.fredericksburg.com/news/local/spring-arbor-celebrates-resident-bernie-cohen-who-

argued-the-loving/article_9d8161dc-a83d-5244-a40a-fe85172cc99a.html. Accessed 23

Sept. 2019. Written by the Free Lance Star, this article quotes Bernie Cohen several times

and gives us a better look into the personal connection he had with the Lovings. It also

provides comparison between the people in the different time periods treating this case. It

contains some personal quotes and stories from Bernie and his family members. We were

also able to have email correspondence with Ms. Uphaus-Conner multiple times. These

interactions helped to lead us to our personal interview with Mr. Hirschkop.

17 Victoria and Albert Museum. "Designing Stage Costumes." V ictoria and Albert Museum ,

www.vam.ac.uk/content/articles/d/designing-stage-costumes/. Accessed 24 Feb. 2020.

This site helped show the different types of historical costumes. It helps to show the

difference between realistic costumes and costumes that have artistic interpretation. It

stresses the need for a sturdy well-made costume.

Watson, Denise M. "Before Loving V. Virginia, There Was Naim V. Naim in Norfolk to

Challenge the State's Race Laws." The Virginian Pilot [Norfolk], 10 Dec. 2016,

www.pilotonline.com/history/article_58459574-0ba6-5ecc-b2f3-6b8a23f7e02a.html.

Accessed 9 Feb. 2020. This case is different than the Lovings mainly due to the fact that

Ruby wanted a divorce. But it still gives a great perspective of interracial marriages

eleven years before the Lovings and how it tied in with the Brown v. Board.

Zack, Naomi. "The Law on Black and White." Race and Mixed Race, Philadelphia, Temple UP,

1993, pp. 76-85. This passage delves deep into the relationships of African Americans

and Whites throughout history, starting in 1619 and ending in 1920. This source also

gives great quotes on how people in the past viewed these relationships.

18