Penn Program onDocumentaries & the Law

Penn Law

Thoughts on “The Loving Story”

November 16, 2013
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    Professor Austin at Bryn Mawr College

“The Loving Story” is an HBO documentary that recounts the history of Loving v. Virginia, the Supreme Court case that ruled state anti-miscegenation laws unconstitutional.  I recently took part in a panel discussion of the film held at Bryn Mawr College as part of the college’s Created Equal Film Series, which is supported by the National Endowment for the Humanities and principally organized by Olivia Costello, Outreach and Information Technology Librarian at Bryn Mawr. 

The documentary offers scenes from an interracial marriage that seems to have been a very good one by any standard measure of a marriage.  The archival vérité or observational footage by cinematographer Abbot Mills and the still photography taken for Life Magazine by Grey Villet produce a visually stimulating and enthralling portrait of two ordinary people who took extraordinary steps to live together surrounded by family in the place they called home.  It appears that Mildred Loving was a bright, serene, charming, attractive young woman.  Her husband was a man of few words, fewer smiles (his poor teeth may have had something to do with that) and limited means.  A bricklayer, he worked with his hands and his back, yet he was also a gentle man as his caresses of his wife and his interactions with his children reveal.  While the documentary presents the attitudes of white residents of Virginia who supported the ban on miscegenation, it says nothing about the views of their black contemporaries regarding interracial marriage.  The genuine affection the couple displayed suggests that theirs was not the sort of interracial pairing that was one careless epithet away from the whole relationship falling apart (a suspicion harbored by many blacks at that time).  

The documentary also explores the backstory of the litigators who took the case to the Supreme Court, Philip Hirschkop and Bernard Cohen.  They were young white lawyers at the start of their careers dealing with what was likely the biggest case of their lives.  They did superlative work and they won by a unanimous decision.  As Jews they likely encountered some hostility litigating a race case in rural Virginia.  Hirschkop went on to try other significant civil liberties cases while Cohen (who comes across as a bit self-important) made a successful run for the Virginia House of Delegates.  I really appreciated the fact that the makers of the documentary did not inflate their significance by  making them the heroes of the drama, a/l/a “Mississippi Burning” and the recent recounting of the MOVE fiasco, “Let the Fire Burn.” 

The Lovings’ victory certainly represented an unequivocal triumph for individual freedom.    The nagging question that remains is whether interracial marriage should be viewed as a measure of group advancement.  Every time Mildred Loving is described as being part black, part Native American, a little bell went off in my ear.  Indian heritage and white blood were marks of distinction in a population that was supposed to despise all things African.   A white spouse was accordingly more valuable than a black one.   Intergroup marriage is on the rise in America today.  Does that reflect a growing social equality for blacks and other racial and ethnic minorities or a continuation of the status hierarchy that has existed in this country from its beginning?

Data on intergroup marriages is equivocal.   A recent Pew Research Center Report found that 15.1% of new marriages in 2010 were between spouses of different races and ethnicities; 9.4% of whites, 17.1% of blacks, 25.7% of Hispanics and 27.7% of Asians married persons of a different race or ethnicity.  With regard to blacks, 24% of all black male newlyweds married outside of their race, but only 9% of black females did.   Altogether black/white marriages remain rare, totaling less than 1% of all marriages.  Of course, rates of marriage are declining in general, particularly for blacks.   In an article entitled “The Fraying Knot,” published on January. 12, 2013, the Economist reported that as of December 2011, 51% of all American adults were married and 28% had never been; this compared with 72% and 15% in 1960.  Fifty-five percent of whites, 48% of Hispanics and 31% of blacks are married, compared with a majority for all three races in 1960. 

While the Loving decision guaranteed that the right to marry would be available to individuals across races and ethnicities, the extent to which that right is exercised seems to be subject to disparate constraints.  We must be careful not to decontextualize Loving with regard to the circumstances that existed when it was decided, nor with regard to those that exist today when it is being invoked to support new freedoms for other groups and individuals.  That the Lovings’ saga is a true love story should not prevent us from applying a critical eye to its implications.

Regina Austin, Director, Penn Program on Documentaries & the Law

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