It’s Loving Day, folks, and we might as well make it a whole darn weekend of
happy mixing, because Asian Americans really had more of a role in the legendary
Loving case than you think.
It wasn’t just a white/black thing, as I’ll explain in a bit.
For those of you stuck in a Kim and Kanye World, I know, it’s hard to imagine a
time when people didn’t just hook up when they felt like hooking up.
But it’s true. The hooks were different then and could get you jailed.
Back in the day, anti-intermarriage laws were present throughout the U.S.
Whites couldn’t marry blacks. And Filipinos or Asians. With Whites? Don’t even
think about it.
Sure, taboos tend to make things spicier, but oh so illegal.
And while laws were passed in 1948 to allow for race mixing in California and
some other states, the anti-miscegenation laws didn’t really come off the books
until Loving v. Virginia.
That’s the case in which Richard Loving, a white male from Virginia, married
Mildred Jeter, an African American female, in Washington, D.C. in 1958. When
they later returned to Virginia, they were promptly arrested.
They pleaded guilty and fought all the way
to the Supreme Court for their right to marry.
On June 12, 1967, the Supreme Court unanimously ruled that the ban on
interracial marriage was a violation of the Fourteenth Amendment.
“It was the only law that made it concrete for the nation,” said Phil Hirschkop,
the lead lawyer who argued the case before the Supreme Court. “California
opinions applied just to California. The ban on intermarriage was the law in 17
states (mostly in the South); Maryland repealed its own law. So Loving struck
down those laws, but also hundreds of others. Many states had multiple laws, not
just banning marriage from races or whatever it was defined by, but laws against
going to another state to avoid the marriage laws, passing property. There was a
whole host of laws, we counted 167 laws that were voided by the Loving opinion
HIrschkop, who has practiced law for
more than 50 years, said the Loving case was simple, as there were no trials
or depositions. But the impact of the case was huge.
“Loving most importantly had two major legal implications,” Hirschkop said in
a phone interview. “Of course, it recognized a right to marry as a fundamental
right. There are two kinds of rights, rights made by laws or constitution, such
as freedom of religion and speech. But then there are those inalienable rights
that are not created by constitution, but are protected by the constitution,
such as the right of privacy. When you get to Roe v. Wade, the right of a
woman’s sanctity of her body, that’s not a right enunciated in the constitution
anywhere, but it is, in fact, protected. And in the same way, so is marriage.
The Court recognized a whole new area of rights that you’re born with, and by
virtue of citizenship. That’s the first big thing in Loving.”
Hirschkop continued: “The second big thing is that it recognized where the state
uses race as a basis of a statutory proscription, the burden is on the state to
show a compelling state interest. Normally, if you bring a case attacking a
state statute, you have a heavy burden to show why the statute is
unconstitutional. But where the statute has a class-based animus, the burden
shifts to the state. It makes it much easier to contest the validity of such
One of the little known facts of the Loving argument is how Asian Americans
It involves the case of Naim v. Naim, in which a Chinese sailor, Han Say Naim,
met his wife Ruby, a white woman living in Virginia, and then went to North
Carolina to be married on June 26, 1952, simply because of Virginia’s ban on all
North Carolina didn’t ban white and Asian marriages.
They returned to Virginia and lived as husband and wife for a year. But then
Ruby Naim filed for an annulment based on the Virginia Racial Integrity Act of
Her husband, Han Say Naim, argued for the validity of his marriage, reportedly
concerned for his immigration status. His lawyer, David Carliner, wanted to
challenge the Virginia law. The case went all the way to the Virginia Supreme
Court, which ultimately backed a circuit court decision and sided with Mrs.
Here are the concluding graphs of the Virginia opinion:
We are unable to read in the Fourteenth Amendment to the Constitution, or in
any other provision of that great document, any words or any intendment which
prohibit the State from enacting legislation to preserve the racial integrity of
its citizens, or which denies the power of the State to regulate the marriage
relation so that it shall not have a mongrel breed of citizens. We find there no
requirement that the State shall not legislate to prevent the obliteration of
racial pride, but must permit the corruption of blood even though it weaken or
destroy the quality of its citizenship. Both sacred and secular history teach
that nations and races have better advanced in human progress when they
cultivated their own distinctive characteristics and culture and developed their
own peculiar genius. Regulation of the marriage relation is, we think,
distinctly one of the rights guaranteed to the States and safeguarded by that
bastion of States’ rights, somewhat battered perhaps but still a sturdy fortress
in our fundamental law, the tenth section of the Bill of Rights, which declares:
“The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or to
The decree appealed from is affirmed.
With that, from June 13, 1955, there would be no question on Virginia’s ban on
white and Asian marriages.
Naim took the case to the Supreme Court, but his timing was wrong. It was one
hot potato at a time. The Court had just ruled on the monumental Brown v. Board
of Education case.
But in honor of the Naim case, Hirschkop said Naim’s lawyer, David Carliner,
was included in the Loving court papers.
“Naim was a terrible opinion, because it talked about “bastardization of the
races,” the same ugly reasoning, same ugly language that the court applied to
black/white was definitely applied to Asian Americans,” Hirschkop said.
Hirschkop mentioned one other situation as being integral to the Loving
argument–the fervor of the 1920s and 1930s that resulted in anti-miscegenation
laws in California left the largely male Filipino population, brought in as
laborers, in a sexual limbo.
“Going back to ’20s, that was a big linchpin of our Loving argument,”
Hirschkop said. “The 1920s were one of the worst periods of American history. We
came out of the First World War into the Great Depression, and that’s whe n a
lot of these miscegenation laws were written in the United States. And prejudice
was at its worst in the history of this country.”
“It was just a bitter time in the country,” Hirschkop continued. “When the Klan
was at the height of its power in the ’20s, Virginia re-did its law, and at that
time, many other states re-did their anti-miscegenation laws. They did other
laws to oppress everything but the white race, as well as maintain the supremacy
of the white race.”
Hirschkop also pointed to one irony that stays with him to this day.
“We came out of World War II and Asian Americans were in a horrible situation,”
Hirschkop said. “We locked out the Nisei. Everyone west of Denver was locked in
a concentration camp. And one odd contradiction… the man who wrote the
Loving opinion, Chief Justice Earl Warren, was attorney general of California
and signed the document that locked up the Japanese Americans in California.”
Indeed, the JACL was well represented with attorney William Marutani arguing in
the Supreme Court as an amicus in the Loving case.
As a tribute to the importance of Loving, the case is often used to help
fortify arguments in favor of same-sex marriages. And just this week, the Pew
Research Center released its report “Multiracial in
calling multiracial Americans “the cutting edge of social and demographic change
in the U.S.–young, proud, tolerant and growing at a rate three times as fast as
the population as a whole.” (With three half-Asian children myself, I’ll comment
on that more in the future.)
For now, it’s pretty daunting to realize that none of it could have happened
When you think of all the hate we’ve all had to overcome, just to get to first
base, we should pause and remember Loving Day on June 12th, and the anniversary
of the Naim decision on June 13th.
It’s worth an extended weekend to celebrate and affirm our right to love and
marry across racial lines.