Lawyer in Landmark Interracial Marriage Case Urges Supreme Court to Eliminate ​‘Frightening Echo’ of Bigotry in Texas Death Penalty Case

On January 6, 1959, Richard and Mildred Loving were con­vict­ed on felony charges of ​“mis­ce­gena­tion” under Virginia​’s Racial Integrity Act, which crim­i­nal­ized inter­ra­cial mar­riage. The tri­al court sen­tenced them to one year in prison but sus­pend­ed the sen­tence con­di­tioned upon their leav­ing Virginia and not return­ing togeth­er for 25 years. The court wrote:

“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.”

Virginia’s appeals courts had upheld the law, assert­ing the state had a legit­i­mate inter­est in ​“preserv[ing] the racial integri­ty of its cit­i­zens” and pre­vent­ing ​“the cor­rup­tion of blood,” ​“a mon­grel breed of cit­i­zens,” and ​“the oblit­er­a­tion of racial pride.” The Lovings chal­lenged it, lead­ing to a land­mark 1967 U.S. Supreme Court deci­sion that struck the laws of 16 south­ern and bor­der states that banned interracial marriage.

Anti-mis­ce­gena­tion laws, Chief Justice Earl Warren wrote, were ​“mea­sures designed to main­tain White Supremacy” and vio­lat­ed both the Due Process and Equal Protection claus­es of the Fourteenth Amendment. ​“Marriage is one of the ​‘basic civ­il rights of man,’” he declared on behalf of the Court, and ​“the free­dom of choice to mar­ry [may] not be restrict­ed by invid­i­ous racial discriminations.”

Philip Hirschkop (pic­tured), who argued on behalf of the Lovings in the Supreme Court, sees ​“a fright­en­ing echo of what was at issue” in Loving in the cap­i­tal tri­al of Texas death-row pris­on­er Andre Thomas. In Loving, Hirschkop writes in a January 4, 2022 com­men­tary in Bloomberg News, ​“it became clear that deep-seat­ed hatred of inter­ra­cial mar­riages shares roots with all oth­er per­ni­cious aspects of racism.” Fifty-four years after the deci­sion, he says, “[i]t is shock­ing to learn that antipa­thy toward inter­ra­cial mar­riage is now play­ing a role in send­ing a Black man to the exe­cu­tion cham­ber in Texas — unless the U.S. Supreme Court intervenes.”

Thomas who is Black, suf­fers from schiz­o­phre­nia so severe that, in sep­a­rate inci­dents, he gouged out both of his eyes and ate one of them. He was con­vict­ed and sen­tenced to death in 2005 by an all-white Texas jury for killing his estranged wife, who was white, their bira­cial four-year-old son, and her bira­cial one-year-old daugh­ter by a dif­fer­ent father. The crime took place in Sherman, Texas, a town where a dra­mat­ic lynch­ing and riot took place in 1930, after a Black farm­hand named George Hughes was accused of rap­ing a white woman. A white mob dragged Hughes behind a car, hung him from a tree in the Black busi­ness dis­trict, and set his body on fire. The Black busi­ness dis­trict was burned to the ground, mar­tial law was declared, and the National Guard was called in to quell the ram­page, remain­ing to police Sherman for the next two weeks. Only two men were con­vict­ed for their actions, one for riot­ing and one for arson. Each served a two-year sen­tence. The impact on the African-American com­mu­ni­ty con­tin­ued for gen­er­a­tions: no Black lawyer or doc­tor prac­ticed with­in the bound­aries of Sherman for the next 65 years.

Texas was one of the states whose anti-mis­ce­gena­tion statutes were inval­i­dat­ed in Loving and writ­ten ques­tion­naires sub­mit­ted to Thomas’ jury sug­gest­ed the inter­ra­cial nature of his mar­riage elicit­ed con­cerns that mir­rored the argu­ments the Supreme Court had con­sid­ered white suprema­cist. One juror wrote that he opposed inter­ra­cial mar­riages because he believed ​“the blood­lines shouldn’t be mixed.” Another expressed con­cern that ​“any chil­dren” of an inter­ra­cial mar­riage ​“would not have a spe­cif­ic race to belong to.” A third said ​“inter­ra­cial rela­tion­ships were con­trary to God’s intent.” Thomas’ state-appoint­ed tri­al lawyers were aware of these respons­es but asked no fol­low-up ques­tions and accept­ed each of the jurors to serve on the case. 

On April 23, 2021, the U.S. Court of Appeals for the Fifth Circuit denied Thomas’ chal­lenge to his tri­al lawyers’ per­for­mance and to his alle­ga­tions of juror bias, uphold­ing the Texas state court’s find­ing that there was no evi­dence of racial bias and that the jurors could be fair because they each had assert­ed they could be impar­tial. Thomas’s is one of more than 150 Texas cap­i­tal cas­es to reach the Fifth Circuit involv­ing death sen­tences imposed since 2000. In that time, the appeals court had grant­ed relief to death-row pris­on­ers exact­ly once.

“Those jurors’ views on inter­ra­cial mar­riage and peo­ple of dif­fer­ent races hav­ing chil­dren were not harm­less per­son­al pref­er­ences,” Hirschkop explains, ​“but a par­tic­u­lar brand of racial prej­u­dice that was direct­ly relat­ed to the facts of Thomas’ case. Before Loving, inter­ra­cial rela­tion­ships were pro­hib­it­ed by law based on pur­port­ed jus­ti­fi­ca­tions such as ​‘racial integri­ty’ and pre­vent­ing the ​‘cor­rup­tion of blood’ — themes that echo loud­ly in the jurors’ statements.”

Hirschkop also notes that, dur­ing the tri­al, ​“the pros­e­cu­tion played on racial fears and solicit­ed irrel­e­vant tes­ti­mo­ny about sex­u­al rela­tion­ships Thomas had with oth­er white women. In argu­ing to the jury that Thomas should be sen­tenced to death, the pros­e­cu­tor asked, ​‘Are you going to take the risk [that, if sen­tenced to life impris­on­ment and lat­er released on parole] about him ask­ing your daugh­ter out, or your granddaughter out?’”

But for the racism in the case, Hirschkop won­ders ​“if Thomas were not Black, and his wife not White; if he were not pros­e­cut­ed in a region where such facts res­onat­ed so deeply in racist tropes[,] would the depth of his men­tal ill­ness been giv­en more cre­dence?” The Supreme Court, Hirschkop con­cludes, should review Thomas’ case ​“and send a clear mes­sage that reit­er­ates the val­ues reflect­ed in their hold­ing from half a cen­tu­ry ago: Racial big­otry will not be tolerated.”