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The case was brought by Mildred Loving (née Jeter), a woman of color, and Richard Loving, a white man, who had been sentenced to a year in prison in Virginia for marrying each other.
Naim (1955) and argued that the Lovings' case was not a violation of the Equal Protection Clause because both the white and the non-white spouse were punished equally for the crime of miscegenation, an argument similar to that made by the United States Supreme Court in 1883 in Pace v. The Lovings, still supported by the ACLU, appealed the decision to the United States Supreme Court, where Virginia was represented by Robert Mc Ilwaine of the state's attorney general's office.
The Lovings did not attend the oral arguments in Washington, but one of their lawyers, Bernard S.
Cohen, conveyed the message he had been given by Richard Loving: "Mr.
Cohen, tell the Court I love my wife, and it is just unfair that I can't live with her in Virginia." Before Loving v. The Commonwealth, the Supreme Court of Virginia ruled that the marriage legalized in Washington, D. between Andrew Kinney, a black man, and Mahala Miller, a white woman, was “invalid” in Virginia. Alabama (1883), the Supreme Court of the United States ruled that the conviction of an Alabama couple for interracial sex, affirmed on appeal by the Alabama Supreme Court, did not violate the Fourteenth Amendment.
Virginia, there had been several cases on the subject of interracial sexual relations. Interracial marital sex was deemed a felony, whereas extramarital sex ("adultery or fornication") was only a misdemeanor.
On October 28, 1964, after waiting almost a year for a response to their motion, the ACLU attorneys brought a class action suit in the U. District Court for the Eastern District of Virginia.