Lawyer won case for in­ter­ra­cial mar­riage in Lov­ing v. Va.

Pittsburgh Post-Gazette - - News Obituaries - By Emily Langer

“Mr. Co­hen, tell the Court I love my wife and it is just un­fair that I can’t live with her in Vir­ginia.”

That was the mes­sage that Bernard Co­hen de­liv­ered in 1967 to the jus­tices of the U.S. Supreme Court on be­half of his client, Richard Lov­ing, a white man who had been roused from his bed in the mid­dle of the night and ar­rested along with his wife for vi­o­lat­ing a state ban on in­ter­ra­cial mar­riage.

Richard Lov­ing and Mil­dred Lov­ing, who was of African Amer­i­can and Amer­i­can In­dian her­itage, be­came the pro­tag­o­nists in a le­gal bat­tle that ended with a rul­ing strik­ing down anti- mis­ce­gena­tion laws -- “the last de jure ves­tige of racism” in the United States, as Mr. Co­hen later de­scribed them. Less than seven years out of law school, he was one of two lawyers to ar­gue their case be­fore the Supreme Court, shap­ing an ar­gu­ment that would re­ver­ber­ate for decades in that cham­ber and beyond.

Mr. Co­hen, who later be­came a prom­i­nent lib­eral mem­ber of the Vir­ginia House of Del­e­gates, died Oct. 12 at an as­sisted- liv­ing fa­cil­ity in Fred­er­icks­burg, Va. He was 86. The cause was Parkin­son’s disease, ac­cord­ing to his fam­ily.

Mr. Co­hen jok­ing de­scribed him­self as “an old man of 29” when he first met the Lov­ings, a cou­ple from Caro­line County, roughly mid­way be­tween Fred­er­icks­burg and Rich­mond, where both had grown up. Richard, a brick­layer, was 24 when they mar­ried in 1958. Mil­dred, six years his ju­nior, was preg­nant with the first of their three chil­dren.

Pro­hib­ited by the Racial In­tegrity Act of 1924 from mar­ry­ing in Vir­ginia, the cou­ple were wed in D. C. on June 2, 1958. Weeks later, af­ter their re­turn to Vir­ginia, lo­cal au­thor­i­ties forcibly en­tered their home at 2 a.m ., shin­ing flash­light sin their eyes.

“They asked Richard who was that wo­man he was sleep­ing with, and I said, ‘ I’m his wife,’” Mil­dred Lov­ing later re­called, ac­cord­ing to an ac­count in Wash­ing­to­nian mag­a­zine.

“Not here you’re not,” the sher­iff replied.

The Lov­ings were ar­rested, pleaded guilty to vi­o­lat­ing the Racial In­tegrity Act and avoided a one- year jail term by con­sent­ing to leave Vir­ginia and not reen­ter the state for 25 years. They set­tled in the District but, far from their fam­i­lies and friends, were un­happy there. When one of their sons was hit by a car, Mil­dred Lov­ing de­cided that they had to leave the city.

“He was sit­ting up in the street cry­ing,” she said. “And I think that was the straw that broke the camel’s back. I had to get out of there.”

The cou­ple wrote to then- At­tor­ney Gen­eral Robert F. Kennedy, ask­ing if he might as­sist them. He re­ferred them to the Amer­i­can Civil Lib­er­ties Union, which in turn con­nected them with Mr. Co­hen, one of the or­ga­ni­za­tion’s vol­un­teer lawyers. He prac­ticed in Alexan­dria, Va., but met the cou­ple in Wash­ing­ton, to avoid mak­ing them en­ter Vir­ginia.

“I knew it was go­ing to be a land­mark case,” Mr. Co­hen told the As­so­ci­ated Press in 1992. “I knew it was go­ing to the Supreme Court. And I def­i­nitely thought there was some­thing serendip­i­tous about the fact that the case would be called Lov­ing vs. the Com­mon­wealth of Vir­ginia.”

He said that the Lov­ings, who were de­scribed in news ac­counts as deeply pri­vate peo­ple, were shocked by his as­sess­ment of the im­por­tance of their case.

Be­cause they had pleaded guilty, Mr. Co­hen had to over­come pro­ce­dural chal­lenges to re­turn the case to court in Vir­ginia, where a judge ruled that “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.”

Work­ing with a co- coun­sel, Philip Hirschkop, Mr. Co­hen filed a fed­eral clas­s­ac­tion suit, which on April 10,1967, reached the Supreme Court. Mr. Co­hen re­ceived some“nasty phone calls at home” and “ex­pe­ri­enced some freezin­gout by some of my col­leagues who wanted to keep their dis­tance,” he told The Wash­ing­ton Post, in the course of the case.

Their ar­gu­ment hinged on two fun­da­men­tal con­sti­tu­tional con­cepts, the guar­an­tees of equal pro­tec­tion and due process.

But “no mat­ter how we ar­tic­u­late this, no mat­ter which the­ory of the Due Process Clause,” Mr. Co­hen ar­gued be­fore the jus­tices, “no one can ar­tic­u­late it bet­ter than Richard Lov­ing when he said to me, ‘ Mr. Co­hen, tell the Court I love my wife and it is just un­fair that I can’t live with her in Vir­ginia.’”

On June 12, 1967, the Court unan­i­mously ruled that the state could no longer pro­hibit mixed- race mar­riages, with Chief Jus­tice Earl War­ren con­demn­ing laws such as Vir­ginia’s anti- mis­ce­gena­tion statute as “odi­ous to a free peo­ple.”

Mr. Co­hen said that when the lawyers called the Lov­ings to in­form them of the de­ci­sion, the cou­ple asked, “Well, what do we do now?”

“We said, you just go on liv­ing,” he told NPR in 2007. “No­body’s go­ing to bother you any­more over this.”

The son of Jewish im­mi­grants, Bernard Sol Co­hen was born in Brook­lyn on Jan. 17, 1934. His fa­ther, a fur­rier, was from Ro­ma­nia, and his mother was from Latvia. Mr. Co­hen’s older brother was killed while serv­ing in the Army dur­ing World War II.

Mr. Co­hen was a 1956 eco­nom­ics grad­u­ate of the City Col­lege of New York and worked at the La­bor Depart­ment while pur­su­ing a law de­gree at Ge­orge­town Univer­sity, where he grad­u­ated in 1960.

He en­tered pri­vate prac­tice in Alexan­dria, cul­ti­vat­ing spe­cial­ties in en­vi­ron­men­tal and em­ploy­ment law un­til his re­tire­ment in 2006. He served in the House of Del­e­gates from 1980 un­til 1996, rep­re­sent­ing a sec­tion of Alexan­dria.

De­scribed by The Post as “more un­abashedly lib­eral than the typ­i­cal Vir­ginia Demo­crat,” Mr. Co­hen was best known in the state cap­i­tal for his suc­cess­ful ef­forts to im­pose re­stric­tions on in­door smok­ing — over pow­er­ful pres­sure from the to­bacco lobby — and for his work on mea­sures strength­en­ing the rights of ter­mi­nally ill pa­tients to de­cline cer­tain life- pro­long­ing treat­ments.

Sur­vivors in­clude his wife of 61 years, the for­mer Rae Rose, of Spot­syl­va­nia, Va.; two chil­dren, Ben­nett Co­hen of Cen­tre­ville, Va., and Karen Co­hen of Hay­mar­ket, Va.; and three grand­chil­dren.

Mr. Co­hen rep­re­sented Mil­dred Lov­ing a sec­ond time when she filed a law­suit stem­ming from her hus­band’s death in 1975 in an au­to­mo­bile ac­ci­dent in­volv­ing a drunken driver, and he was present at her home when she died in 2008.

The Lov­ings and their or­deal were dra­ma­tized in films in­clud­ing the 2016 movie “Lov­ing” by di­rec­tor Jeff Ni­chols, in which ac­tor Nick Kroll por­trayed Mr. Co­hen. The case had been re­vived in the pub­lic con­scious­ness a year ear­lier, when Lov­ing v. Vir­ginia was cited as prece­dent in the 5- 4 Supreme Court de­ci­sion in Oberge­fell v. Hodges le­gal­iz­ing same- sex mar­riage.

“The de­ci­sion in Lov­ing brought enough to en­com­pass the prin­ci­ple in­volved in the same- sex mar­riage case,” Mr. Co­hen told the Rich­mond Times Dis­patch. “Be­cause the con­sti­tu­tional prin­ci­ple in­volved is the same, the right to marry is a con­sti­tu­tion­ally pro­tected right of lib­erty. I think it’s that easy.”

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