The wrong side of history: My uncle's Supreme Court stand against interracial marriage

My Uncle Bob represented the state in Loving v. Virginia. My family didn't talk about it until after he died

Published June 10, 2017 7:30PM (EDT)

Mildred Loving on Jan. 26, 1965
Mildred Loving on Jan. 26, 1965

I sat through the film "Loving" like a man with a secret, unable to experience it as the purely historical tale I imagine most did.

As the credits rolled, I thought of the real Lovings whom I’d seen on YouTube videos, discussing their case in the late 1960s with TV interviewers, while their young children played on their porch. The film actors playing these two unlikely civil rights heroes captured Mildred’s resolute softness and Richard’s fearful simplicity.

I turned to the friend who’d joined me for the screening.

“He wasn’t in it,” I said, relieved. “Better for the movie to focus on the couple, not the trial.”

“He” was my godfather Robert McIlwaine, Uncle Bob as I called him, and my secret was a surprise. I discovered recently that he was the lead lawyer on Loving v. Virginia, the iconic U.S. Supreme Court case on interracial marriage. He argued for Virginia and against the rights of the interracial couple.

Thanks to the film and the upcoming 50th anniversary of the court case in June, more people know the story of the white man and black woman who were hauled off to jail in 1958 after marrying in Washington, D.C., where it was legal, and then moving to Virginia, where it was not. Virginia law made the marriage of a “white” person and a “colored" person a crime punishable by a prison term of as much as five years. It was one of 16 states with similar laws then enforced in America.

On Jan. 6, 1959, the Lovings pled guilty to the charge and were sentenced to one year in jail. The judge stated his opinion at follows:

"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."

*  *  * 

When Uncle Bob died two years ago at age 90, I searched online for his obituary in the Richmond Times-Dispatch. There was a photo of him when he was around my age now. I could feel him grab my shoulder and declare in his thunderous and gravelly yet refined Southern accent, “Now tell me what’s going on with school, my boy!”

I gave the obituary a once-over, not expecting new information, just sad and curious about how my godfather’s life would be summed up in a few hundred words. I saw the facts so familiar to me: age, parents’ names, schooling at the University of Virginia and career in Virginia politics.

Then I squinted at a link to a news feature accompanying the obituary. What had he done to warrant that? It’d been over 40 years since he’d worked in Virginia politics. At least 30 since I remember his talking of any legal work at all. As I recall, he took down his shingle without fanfare.

I clicked and my eyes landed with a confused thud on the sentence that’s haunted me since I read it: “As a lawyer for the state, Mr. McIlwaine was often on the wrong side of history.”

The words were there in black and white, but what did they mean by “wrong side?” Naively, I assumed that was a polite way of saying he’d lost his cases.

“A redheaded, diminutive, courtly Southsider who spoke in oval tones and had a bellowing laugh,” the Richmond Times-Dispatch reported, “Mr. McIlwaine was among the most influential figures in Richmond who most Virginians had never heard of, helping shape law and policy as an aide, adviser and confidant to attorneys general and governors.”

That’s flattering, I thought. Then I read on:

“As an assistant attorney general, Mr. McIlwaine argued for Virginia’s policy of Massive Resistance to desegregation of public schools, mandated in a landmark ruling in 1954 by the U.S. Supreme Court. The court rejected as unconstitutional separate school systems for blacks and whites in Virginia and several other states.

During the 1960s, Mr. McIlwaine appeared before the Earl Warren-led Supreme Court in cases through which the Old South ways of Virginia and other states of the former Confederacy were systematically dismantled. . . . Among the high court cases in which Mr. McIlwaine was involved . . . Virginia’s prohibition to interracial marriage.”

I closed my computer and sat in silence for what seemed like a long time as I put two and two together. A buried memory surfaced: When I was 6 years old, I attended the Loving v. Virginia proceedings at the Supreme Court and saw Uncle Bob in action.

*  *  *

“We’re going to see your Uncle Bob argue in the Supreme Court today; you need to look nice,” my mother said in 1967. I remember her laserlike focus on what I wore and getting us to the court on time. She was always running late.

As I thought about Uncle Bob in court, the distant details came into focus. He knew we were coming, but “he won’t be able to talk to us since he’ll be working with lots of people,” she said. “He said he’d wave from inside.”

I had no idea what she meant by argue. That was something my parents did when they were angry, not an event you attended. The court was packed and tense, and I remember feeling bored as Uncle Bob and others — the images are fuzzy, but I assume the judge and lawyers for the other side ­— addressed the court. I can’t remember a word. But I knew I was there to watch my godfather in motion.

Uncle Bob was a key member of my parents’ inner circle of friends from their postcollege years in Petersburg, Virginia. My memories of this 1960s Virginia rat pack are of strong cocktails and spirited conversations that got heated, although the fire blew in the same direction since everyone always agreed.

Bob had been the consummate Virginia politics insider, with close ties to Govs. Albertis S. Harrison Jr. (who held office from 1962 to 1966) and Mills Godwin (from 1966 to 1970), Democrats during one of the most racially explosive decades, when Southern Democrats like those two would soon morph into conservative Republicans.

The writer who’d gotten wind of Uncle Bob’s death and decided to spark the dying ember of his history tried to put the man in context and cement his legacy. He might have been able to connect the court case dots. But could he put the man in context? No, he could not. He wasn’t there. 

*  *  *

Robert Dunn McIlwaine III. His name inspires thoughts of moors, castles, lush green hills and a mysterious Loch Ness monster who appears every now and then.

Uncle Bob drank Jack Daniel's on the rocks, wore houndstooth jackets and light wool tartan vests reflecting his roots and lit up southern Virginia parties with his social command. I couldn’t wrap my mind around how his name would forever be associated with racism.

It’s striking to think of our similarities: graduates of the University of Virginia (in fact, he wrote me a letter of recommendation); devoted sons and caregivers for our parents; bourbon lovers — a mix of boisterous and introspective.

Single like me, Bob helped steer his friends’ children toward schools, jobs and productive lives. He took loving care of his father and mother, who required extensive help after a bad accident. He was a generous nephew to his Aunt Rebecca, whom he let live in the top floor of his home when she could no longer fend for herself. He helped support a niece and two nephews. He had many friends over the course of his lifetime. I never heard him speak unkindly of people or saw him try to hold down any group of people.

After reading his obituary, I thought of our differences: I talk with my family and friends about personal matters; not much is off the table. I’m pro equality and social justice, define myself as a progressive and my friends are Republican, Democrat, Christian, Jewish, Buddhist, atheist, African-American, Hispanic, young, old, straight, gay. I like to think I’m on the right side of history, but even as I write this, I realize it’s a ridiculous, impossible statement. How in the world would I know that now? How will I ever? History judges you on its time, not yours.

The world spins forward but it’s one spin forward, one spin back and plenty of spinning in place. As a society, we’re more articulate and transparent now about social issues. We’re also quick to form opinions, stay glued to our cable channel of choice and hold to our rigid mindsets.

*  *  *

The landmark 1967 decision in favor of the Lovings paved the way for an increase in interracial marriages in the U.S.; it is remembered annually on Loving Day, June 12. Beginning in 2013, the decision was cited as precedent in U.S. federal court decisions holding as unconstitutional restrictions on marriage for same-sex couples.

The similarity in language used by lawyers arguing on both sides of interracial and gay marriage is undeniable. I’ve heard the same faulty logic used in Loving v. Virginia applied to gays and lesbians: Gay marriage is a sacrilege that will topple society, and heterosexual marriages will suffer. One state shouldn’t have to accept what another state legitimizes. And what about the kids Adam and Steve aren’t fit to raise? Unless reared by Adam and Eve, they will be messed up, scorned by society and miserable.

Uncle Bob was in a nursing home when the marriage equality case reached the Supreme Court, with lawyers dusting off and refreshing his old arguments. Those lawyers lost, just as Uncle Bob had.

I wonder what he would think of his gay godson, the one who’s written books about gay relationships and written and produced multimedia journalism on LGBT history?

I won’t know because we never talked about any of it. I never came out to him, and I have no idea what he knew about me. By the time I considered having a tête-à-tête with him, we didn’t have a history of personal conversations, he wasn’t in good physical shape, and I let it go.

I’m left with wondering why no one in my family ever talked about our connection to this history. Yet it’s not so hard to understand. Families are just microcosms of society and most of us don’t like having difficult conversations.


*  *  *

I recently discovered audio recordings of the Loving v. Virginia oral arguments in an HBO documentary and online. I felt disgusted as I read the transcript and listened to Uncle Bob’s distinctive voice. Back in 1967 he’d vigorously argued that children of interracial couples “have almost insuperable difficulties in identification” that cause “damage.” He noted that biracial children are often referred to as “the victims of intermarried parents and as the martyrs of intermarried parents.”

The words stung, and it was worse to hear him say them out loud. The Lovings didn’t attend the Supreme Court sessions as arguments were made. Instead, Richard provided a message: “Tell the Court I love my wife and it is just not fair that I cannot live with her in Virginia.” I wish Uncle Bob had been forced to make his arguments in the presence of Mildred and Richard, arguing against two human beings and their basic human rights instead of against an outdated law. I tried to imagine him, thinking of the case as a misguided Titanic, slowly heading toward the iceberg as he did what his bosses expected.

At one point during the arguments, Justice Potter Stewart questioned Uncle Bob about marriage and the rights of individuals:

Justice Stewart: Mr. McIlwaine, wouldn't it be pretty clear in the absence of the specific legislative history which you refer us? If it just were no history, wouldn't be pretty clear that the very purpose of the Equal Protection Clause of the Fourteenth Amendment was to provide that every state had to treat Negroes citizen the same as white citizens so far as their laws go? Isn't that what the Equal Protection Clause means?

Mr. McIlwaine: Yes sir, I think it does. I think that's reinforced by the legislative history and I don't know exactly how to consider the question aside from the legislative history, but that is clearly indicated in the legislative history itself.

Justice Stewart: That is — that was the very purpose of the Equal Protection Clause coming as it did after the — in the light of the Civil War.

Mr. McIlwaine: That is correct, but it is clear that the Framers understood that in their intention, a law which equally forbade the members of one race to marry members of another race with same penal sanction on both did treat the individuals of both races equally.

Turning then to our alternative argument which we say can only be reached if the legislative history of the Fourteenth Amendment is ignored and the Fourteenth Amendment is deemed to reach the state power to enact laws relating to the marriage relationship, we say that the prevention of interracial marriage is a legitimate exercise of the state power.

That there is a rational classification, setting so far as the Virginia population is concerned, for preventing marriages between white and colored people who make up the — almost the entirety of the State population, and that this is supported by the prevailing climate of scientific opinion.

Exactly what scientific opinion?

Many have pointed out that the state’s concern, as expressed in the words of the 1924 act's title, "An Act to Preserve Racial Integrity," extended only to the integrity of the white race. But while Virginia prohibited whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), any other racial class could intermarry without statutory interference.

Uncle Bob argued that basically Virginia was only concerned with white and black people. The state didn’t have enough of the other kind to warrant discussion before the court.

“Therefore, we say that this problem of the intermarriage of whites and orientals or Negroes and orientals or any of these two classes with Polynesians or Indians or Asiatic Indians is not a problem Virginia has faced,” Bob said told the court, “and one which is not required to adopt its policy forbidding interracial marriage too.”

So much for the wide-scale, equal “preservation of racial integrity” argument.

In a unanimous decision, the Supreme Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The court found that the Virginia law had no legitimate purpose "independent of invidious racial discrimination." It rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment. The court also held that the Virginia law violated the due process clause of the Fourteenth Amendment.

"Under our Constitution," wrote Chief Justice Earl Warren, "the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

 *  *  *

Around the same time I read Bob’s obituary, Ben Affleck issued this statement after being caught asking a producer to hide his dark family secret from the "Finding Your Roots" TV program: “After an exhaustive search of my ancestry for ‘Finding Your Roots,’ it was discovered that one of my distant relatives was an owner of slaves. I didn't want any television show about my family to include a guy who owned slaves. I was embarrassed. The very thought left a bad taste in my mouth.”

I know how Ben felt. My discovery left me with more questions than answers.

Was my mother, who’d dressed me up for the occasion and led me to our courtroom seats, aware of the implications of what he was arguing? Or was she just focused on seeing him in action at the Supreme Court? I don’t remember racist talk in our home. I don’t remember one conversation in which Loving v. Virginia ever came up.

My mother’s response was straightforward when I asked her recently what she recalled about Uncle Bob’s involvement.

“It was Bob’s job to represent how Virginia felt,” said Mom, now 88 and living outside Richmond. “He didn’t feel like it was his job to inject his personal opinion. Representing Virginia at the time was to push back against interracial marriage.”

“What’s the old proverb about truth?” I asked as I tried to remember the exact words, but settled for a paraphrase. “First it’s challenged, then fiercely opposed and ultimately accepted as self-evident.”

“People didn’t challenge the status quo. A lot of it was about avoiding being socially ostracized. It didn’t feel wrong,” she paused and continued, “at the time. That was then, this is now. Things advance. Lord knows what will come along in another 50 years. Maybe we’ll have a world with no race differences. Maybe everyone will be the same race.”

It was both hopeful and hard to hear my mother say that. Hopeful because she’s seen a lot in her 88 years; she champions equality and she’s unafraid of change. She was so supportive through my tumultuous coming out in the '80s and was a tireless advocate for all kinds of people in her work as a lay chaplain for 35 years. The fierce love she has for all people is the same love that breaks down barriers.

And it was hard since I suppose in some alternate universe I wish the elders in my world had revered Martin Luther King Jr. and Frank Kameny more than they’d accepted the status quo. It is what it is — not only a tiresome conversational cliché but also the passive stance many Americans had and still have toward equality. The truth is that while some get condemned for their actions, many more get a pass for their inactions.

 *   *  *

Discovering Bob’s involvement in the Loving case has spurred a few provocative family discussions in addition to the one with my mom. We can’t ignore a news article about how a beloved, charming godfather and our family friend ­— who was on the right side of many things that only a handful of us now recall — was on the wrong side of history.

“He wasn't just on the wrong side of history,” my older brother Bruce said. “He was on the wrong side of morality. Holding people down is an industry, a tradition of mankind using the same arguments of diminishment disguised as patronizing, helping or tolerance since time began.”

Fellow Virginian Thomas Jefferson was on the wrong side, too. History is full of people who were on the wrong side. They all had friends and family, did good and uncredited things over the course of a lifetime like we all do, and were more complicated and loving than their unloving, public failures would indicate.

What if Uncle Bob had been caught in the crossfire while he was just doing his job? Did he “take the cases as they come,” as Reno S. Harp III, a former colleague of Uncle Bob in the attorney general’s office, told the Richmond Times Dispatch?

Quick research revealed that the attorney general doesn’t determine what to try, only how best to uphold the law. At Uncle Bob's funeral, distinguished lawyers, judges, lobbyists and politicos gave him all the credit for teaching them the law.

But still I wonder: If you can’t do your job in good conscience, why not get another job? Did any of his contemporaries predict the outcome and warn him to remove himself from the controversial case that would eventually help define his career and life? Probably not. Interracial marriage was new or at least it was presented as such. History shows that a compelling, fear-based case against the unknown will trump basic human rights and the equality ideals our forefathers had the foresight to craft, even though as we now know, they themselves couldn’t live up to those ideals.

Is there a manual for making peace with uncomfortable ties to your past, even if they are a generation or six removed? I’m not the only one to wonder. Something else Ben Affleck wrote in his statement resonates with me.

“I regret my initial thoughts that the issue of slavery not be included in the story,” he said. “We deserve neither credit nor blame for our ancestors and the degree of interest in this story suggests that we are, as a nation, still grappling with the terrible legacy of slavery. It is an examination well worth continuing. I am glad that my story, however indirectly, will contribute to that discussion.”

I hope mine will, too. I have no manual. But I know the first step is facing the truth about history, both national and personal.

*   *   *

My favorite times with Uncle Bob were at horse races, and we attended quite a few together when I was a preteen. I loved horses, so my parents included me when they drove the 90 minutes from our Northern Virginia home to the Charles Town racetrack in West Virginia. I always finagled a few dollars to place bets, which Uncle Bob would often make for me.

Once at a horse race, we walked together to the stable so I could see the majestic Thoroughbreds up close. I was shocked to see several of the horses wearing blinders that restricted their peripheral vision.

“Why do they wear those?” I asked. Uncle Bob chuckled. I felt bad for the horses.

“They need to stay focused,” one of the trainers said to me. “Otherwise, they’ll get distracted and fight their way to the starting gate.”

“It’s for their own good,” Uncle Bob nodded. “Blinders keep them safe.”

I wasn’t convinced. I told him I wanted to place my $2 bet on the horse that seemed most uncomfortable wearing the small squares of firm leather on his head. Uncle Bob didn’t think that was a good idea since, according to the racing reports he followed religiously, odds were not in this horse’s favor. But he did it for me anyway. My horse won.

We walked back to our seats with my nominal winnings. “The kid was right,” Uncle Bob told my parents.

*  *  *

When it comes to matters of equality, evolve has to be the most overused word in the last few decades. I’m not naive — despite social advances, some people refuse to adapt their way of thinking. Others take their blinders off.

As I sat in the movie theater watching the "Loving" film's credits roll, two questions raced through my mind.

Knowing what we know now, in a country that continues to make strides (albeit bumpy ones) toward our American ideal of equality, would Uncle Bob support the outcomes of Loving v. Virginia and Obergefell v. Hodges?

Would he think of how serendipitously named the couple was, so that for the rest of time, we’ll say that in the case of Loving v. Virginia, hating lost and loving won?

If I could, I’d go to a betting window right now and place $4 on a double win.

By Dave Singleton

Dave Singleton is a writer, editor and author of three books, including "CRUSH: Writers Reflect on Love, Longing, and the Lasting Power of Their First Celebrity Crush." He writes for numerous publications about pop culture, relationships, health, and LGBT life. He’s a columnist and Contributing Editor for the literary journal Scoundrel Time. His honors include the 2010 Media Industry Award for Outstanding Writing, the GLAAD Award for Outstanding Multimedia Journalism, and two National Lesbian and Gay Journalists Association "Excellence in Online Journalism" awards. He lives in Washington, D.C. and teaches creative nonfiction and memoir at The Writer’s Center.

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