The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective
![handle is hein.journals/valr52 and id is 1213 raw text is: THE LOVING CASE: VIRGINIA'S ANTI-
MISCEGENATION STATUTE IN
HISTORICAL PERSPECTIVE
Walter Wadlington*
T may seem surprising that a state which regularly recalls with
glowing sentiment the story of how one of her early white sons
married an Indian princess1 today maintains one of the strictest legal
codes against racial intermarriage.2 Only this year, however, the Vir-
ginia Supreme Court of Appeals reaffirmed the validity of the state's
broad anti-miscegenation law in a cause styled with symbolic irony.3
This case may well provide a vehicle for reconsideration by the United
States Supreme Court of the constitutionality of such restrictive mar-
riage legislation. Eleven years ago the Court turned away without
definitive action a case which challenged the Virginia statute,4 but
recent developments indicate that it may be ready to consider fully
* Professor of Law, University of Virginia. A.B., 1951, Duke University; LL.B., 1954,
Tulane University.
1 If John Rolfe and Pocahontas were to be married in Virginia today, they would
probably be guilty of a felony. See VA. CODE ANN. §§ 20-54 & 20-59 (1960); notes 92-95
infra and accompanying text. Moreover, their children might be unable to marry white
persons. Ibid. It is also possible that their children would be considered illegitimate.
See notes 64-68 infra and accompanying text. But see notes 119-22 infra and accompany-
ing text.
2 VA. CODE ANN. §§ 20-54, -57, -58, -59, &c -60 (1960). Virginia is only one of seventeen
states which retains a ban against racial intermarriage. See note 8 infra. Moreover,
Virginia's miscegenation law is especially severe in several respects. For example, in
Virginia a white person is prohibited from marrying anyone with any trace whatever
of any blood other than Caucasian, VA. CODE ANN. § 20-54 (1960), with one exception,
see notes 92-95 infra and accompanying text, whereas in some other states the ban is only
on marriages between white persons and persons with a specific degree of Negro blood,
typically one-eighth or more. See, e.g., FLA. STAT. ANN. § 1.01(6) (1961) &c § 741.11 (1964);
N.C. GEN. STAT. § 14-181 (1950). Moreover, Virginia declares miscegenous marriages to be
void, VA. CODE ANN. § 20-57 (1960), while her neighboring state, West Virginia, declares
them to be only voidable, W. VA. CODE ANN. § 4701 (1961). It should also be noted that in
Greenhow v. James' Ex'r, 80 Va. 636 (1885), the Virginia: court held that the state's
legitimating statute does not apply to children of miscegenous marriages, whereas in
at least one state with a ban against miscegenous marriages, the children of such a
marriage are considered to be legitimate. See In re Atkins' Estate, 151 Okla. 294, 3 P.2d
682 (1931).
S Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966), appeal docketed, 35
U.S.L. WEEK 3059 (U.S. Aug. 2, 1966) (No. 395). The style of the case was even more
ironic at the trial level.
4 Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, vacated and remanded, 350 U.S. 891 (1955),
afl'd, 197 Va. 734, 90 S.E.2d 849, appeal dismissed, 350 U.S. 985 (1956).
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The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective
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