In my early American history class, students are frequently surprised when they discover that the three fifths compromise in the Constitution of the United States meant that slaves only counted as three fifths of a person.

In nineteenth-century American history, students are horrified that the Fugitive Slave Act required that escaped slaves must be returned to their masters; an act that meant slaves had to reach Canadian soil to truly gain their freedom.

As if it were something that no longer takes place, they cannot imagine how such discrimination could have existed. Yet, it has only been within my lifetime that the Supreme Court struck down laws banning inter-racial marriage. And we are still working to have same-sex marriages recognized across the country.

In June 1958, just five months after I was born, Mildred Jeter married Richard Perry Loving in the District of Columbia. They could not have been married in their home state of Virginia because, according to Virginia law

If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.

At the time, there were 16 states–including the Commonwealth of Virginia–that had a racial test for marriage.

When Mr. and Mrs. Loving returned to Virginia, they were arrested and tried because Virginia state law also held that

If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State.

Mr. and Mrs. Loving were sentenced to one year in prison. But the trail judge suspended the sentence for 25 years if the couple moved out of the state. The Lovings returned to the District of Columbia and appealed their conviction all the way to the Supreme Court.

Forty years ago today, in Loving v. Virginia, the Supreme Court unanimously ruled that Virginia’s anti-miscegenation statute was unconstitutional.

Next week, some of my students will be debating contemporary issues from the point of view of the nineteenth century individuals about whom they have been doing research. Same-sex marriage is one of the issues that will be addressed.

The nineteenth century arguments some of them will employ to condemn same sex unions will be very similar to those used by the state of Virginia in the twentieth century to deny the legitimacy of Mildred and Richard’s loving relationship. And many of their arguments—based in the world view of the nineteenth century—will be indistinguishable from the point of view many contemporary Americans advance while condemning same-sex unions in the twenty-first century. Or, in the words of Leon Brazile, the trail court judge who found the Loving’s guilty:

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.

Maybe, in twenty or thirty or forty years, my students will say to their children or grandchildren, “Can you image that it was within my lifetime that same-sex couples couldn’t marry?” And maybe–just maybe–their children will shake their heads in amazement in the same way my current students are amazed that it was once a felony for Mildred Jeter to marry Richard Perry Loving.

–Steven L. Berg, PhD

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