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.”