About 17 years ago a group of grassroots activists encouraged the commemoration of June 12 as “Loving Day” to highlight the 1967 unanimous decision by the U. S. Supreme Court that declared Virginia’s law banning interracial marriage unconstitutional, through the landmark case of Loving v. Virginia. Since the George Floyd case and others, strong voices in the United States and around the world have been driving Americans to reawaken to the knowledge of past injustices and those that occur in the present, while museums and other institutions strive to acknowledge this through exhibitions, programs and other media. The Loving case exemplifies one of these inequities faced by mixed-race married couples in the Commonwealth of Virginia and in 15 other states as recently as the 1960s.

This case harkens back to the 17th century when unjust actions both social and legal began for non-whites in Virginia. In 1655 a mixed-race woman named Elizabeth Key of Northumberland County fought for her freedom and that of her child. Elizabeth, born about 1630 on the north side of the James River, was the daughter of an English planter who served in the Virginia House of Burgesses, while her mother was an unfree black woman. Elizabeth’s father minimally provided for her future by having her baptized and sent her to live with another Englishman as an indentured servant, stipulating that she be freed after nine years at the age of 15. When her father died, the man who held her transferred her to a landowner in Northumberland County. When this second individual died, his estate’s executors considered Elizabeth and her son to be enslaved.

While working for the second Englishman, Elizabeth met one of his recently arrived English indentured servants, William Grinstead. Elizabeth and Grinstead began a relationship which produced their son, John. With William acting as her attorney and speaking for her in county court, Elizabeth sued the landowner’s estate for her freedom and that of her son, claiming that she was the daughter of a free Englishman, was baptized in the Church of England, and had served out her term of indenture – all valid reasons for her to be freed. The court ruled in favor of Elizabeth, but the landowner’s estate appealed the decision to Virginia’s General Court, which ruled against Elizabeth. She then appealed to the Virginia General Assembly, which assigned it to a committee of burgesses. This group sent the case back to the Northumberland County court for retrial, and Elizabeth won her case in 1656. The mixed-race couple married, essentially making history as one of the few recorded mixed-race marriages of the 17th century. The couple had several children and, although William sadly died in 1661, Elizabeth can be considered one of the fortunate few – a woman of color who fought and won her freedom and then married the man she chose.

For six years following this case in 1656, any non-white person whose father was English was considered free. However, the situation in the colony rapidly changed. In 1662, the courts ruled that from then on, a person’s status depended upon the status of his or her mother, not father. Therefore, any child of an enslaved mother would be enslaved. Subsequent harsher laws subduing non-whites in Virginia continued. Although Elizabeth and William could marry in the 1650s, in 1691 the Virginia General Assembly decreed: “whatsoever English or other white man or woman being free shall intermarry with a negroe, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever.”

A new law in 1705 did not require the white partner to leave, but imposed a fine and prison sentence for such action. In the years prior to and following the Civil War, interracial couples persisted in marrying in Virginia, despite the growing fines and prison sentences imposed by increasingly restraining legislation. Virginia’s 1924 Racial Integrity Act bolstered the law banning marriage between whites and non-whites. Other colonies and states had adopted such laws as well, particularly in the American South, so that by the late 1960s, about 16 states still had laws banning interracial marriage.

While some mixed-race married couples had previously contested these laws, in several cases the U.S. Supreme Court upheld them. In 1967, another case went to the nation’s highest court again. Readers may be familiar with this story, depicted in the 2016 film Loving. In 1958, Mildred Jeter, a young non-white woman (Black American, mixed with American Indian, probably Rappahannock) married a white man, Richard Loving in Washington, D.C., because they knew it was illegal to do so in Virginia. When they attempted to return to their hometown in Caroline County, Virginia, authorities arrested them, and they could only avoid a one-year jail sentence by leaving Virginia; they were told they could not “return together at the same time to said county and state” for 25 years. In Washington, D.C., they began working with legal assistance, enlisting the help of U.S. Attorney General Robert Kennedy, who referred the case to the American Civil Liberties Union.

At first, the lawyers assigned to the Lovings brought the case back to circuit court in Caroline County, Virginia, stating that the couples’ sentences ran counter to the 14th Amendment’s Equal Protection Clause. The judge ruled against their case, stating that “Almighty God created the races . . . and he placed them on separate continents . . . . The fact that he separated the races shows that he did not intend for the races to mix.”

After the Lovings’ lawyers took the case to the Virginia Supreme Court of Appeals which upheld the circuit court’s ruling, the Lovings appealed to the U.S. Supreme Court. The Court unanimously ruled in their favor on June 12, 1967, finally overturning the 1691 law more than 275 years later. Chief Justice Earl Warren wrote the Court’s opinion, noting that because the races of the claimants were the only factors determining whether or not they broke the law, the law was a violation of both the Equal Protection and Due Process clauses of the 14th Amendment which prohibits governments from discriminating against individuals on the basis of race. The Court noted that “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,” and persons should not be deprived of it on an arbitrary basis such as race. Denying it was “so directly subversive of the principle of equality at the heart of the Fourteenth Amendment.”

Elizabeth Key won her freedom case but with grievously unforeseen consequences after 1662, as laws changed and tightened for individuals of African, American Indian and mixed-race descent such as Elizabeth. Justice did prevail for the Lovings, but only after 275 years of inequity and numerous court battles. Let us make June 12 and those to follow “Loving Days,” in which all persons, no matter of their race, gender identity, nationality or religion can live together peacefully in our communities.

The Jamestown-Yorktown Foundation featured Elizabeth Key in its “TENACITY: Women in Jamestown and Early Virginia” special exhibition at Jamestown Settlement in 2019, which was awarded an Award of Excellence given by the American Association for State and Local History (AASLH).

Nancy D. Egloff
Historian, Jamestown-Yorktown Foundation

Selected Sources

• Tarter, Brent, & the Dictionary of Virginia Biography. “Elizabeth Key (fl. 1655–1660), 2019. https://www.encyclopediavirginia.org/Key_Elizabeth_fl_1655-1660
• Billings, Warren, ed. The Old Dominion in the Seventeenth Century: A Documentary History of Virginia, 1606-1689. Chapel Hill: University of North Carolina Press, 1975, pp. 152, 165-169.
• Loving v. Virginia, 388 U.S. 1 (1967) https://supreme.justia.com/cases/federal/us/388/1/
• Newbeck, P., & Wolfe, B. Loving v. Virginia (1967). (2015, October 26). In Encyclopedia Virginia. Retrieved from https://www.encyclopediavirginia.org/loving_v_virginia_1967