He Helped Make Mixed Marriages Legal in Virginia. Now the State Says Goodbye to Bernard Cohen.

Bernard Cohen (pictured left) is seen here meeting with Mildred and Richard Loving, the couple he would represent before the US Supreme Court. Photo courtesy of HBO.

By Associated Press

October 14, 2020

The civil rights pioneer, who was a lawyer and later a member of the House of Delegates, passed away Monday at the age of 86.

RICHMOND — They paid tribute to Bernard Cohen on Wednesday. The House of Delegates and Virginia Senate both adjourned for the day in his memory, honoring their former colleague. But Cohen was more than a lawmaker. As a lawyer, he won a landmark civil rights case that forever changed Virginia’s mixed marriage laws. He fought the tobacco industry and tried to pass a bill forcing a nuclear freeze.

“He was an unabashed, unshy liberal when it came to issues,” said Del. Charniele Herring, who currently holds the same seat Cohen did in the House. “He just sort of remarked that this seat has the honor of having attorneys in it for so long. [When I took this seat], he asked that I be dedicated for civil rights. We’re losing so many giants here recently and here’s another one. A former member of this body.”

Bernard S. Cohen and legal colleague Phil Hirschkop are best known for arguing and winning a victory before the Supreme Court. They represented Richard and Mildred Loving, a white man and Black woman convicted in Virginia in 1959 of illegally cohabiting as man and wife and ordered to leave the state for 25 years.

Cohen and Hirschkop represented the Lovings as they sought to have their conviction overturned. It resulted in the Supreme Court’s unanimous 1967 Loving v. Virginia ruling, which declared anti-miscegenation laws unconstitutional. The case also highlighted the judiciary’s role in protecting the rights of marginalized people and communities.

“Bernie made us a better, more loving Commonwealth and country,” Virginia Lt. Gov. Justin Fairfax said in a tweet. “[He was] a brilliant legal mind and champion in the struggle for equality and human dignity.”

‘He was a bit of a risk taker’

Cohen died Monday of complications from Parkinson’s disease at his home in Fredericksburg, said his son, Bennett Cohen. He was 86.

Bernard Cohen had a great sense of humor and liked to ride motorcycles and fly planes, his son said.

“He was a bit of a risk taker, and I guess that’s in line with the risks he took in his younger professional life,” Bennett Cohen said.

Bernard Cohen and Hirschkop were ACLU volunteer attorneys only a few years out of law school when they took on the case. Then-Attorney General Robert Kennedy referred Mildred Loving to the ACLU, after she wrote him seeking assistance.

“We would pinch ourselves and say, ‘Do we realize what we’re doing?’ We’re handling one of the most important constitutional law cases ever to come before the court,” Cohen said in a documentary about the case that aired on HBO in 2012.

The biggest challenge, Cohen always said of the case, was not the Supreme Court argument, but getting the case back in state court so it could be appealed.

After devising a strategy to do so, the judge who sentenced the Lovings roundly rejected the request to set aside the conviction, giving the lawyers a ruling that could be appealed.

“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 judge wrote in upholding the sentence. “The fact that He separated the races shows that He did not intend for the races to mix.”

Before arguing the case before the Supreme Court, Cohen said he tried to explain to Richard Loving the legal doctrines he would use.

“He was very country, sort of rough,” Cohen told the Associated Press in 1992. “[He] just said, ’Tell them I don’t understand why if a man loves a woman he can’t marry her no matter what her color.’”

‘A real legal eagle’

Following the landmark case, Cohen continued a legal career, but also veered into politics. He was elected to the House of Delegates in Virginia in 1979 representing the Alexandria area, and served eight terms.

During a 16-year career in the state House of Delegates, Cohen ran as “an unabashed liberal” and reveled in introducing controversial legislation. In 1983, he sponsored a resolution in favor of a nuclear freeze that won passage in the House but stalled in the Senate after a Reagan administration official testified against it. Cohen blamed the defeat on “kooks in the defense Department.”

He successfully advocated legislation banning smoking in public places in an era when the tobacco industry was a political powerhouse in Richmond.

Brian Moran, who succeeded Cohen in the legislature and is now Virginia’s secretary of public safety and homeland security, said Cohen opted to retire in 1995 because he had grown weary of campaigning — arthritis made shaking hands painful, and he’d come to loath door-knocking after getting attacked by a dog.

Cohen endorsed Moran as his successor because he wanted a lawyer to hold the seat.

“He was a real legal eagle. [He] respected the law, and wanted a lawyer to succeed him,” Moran said. “He was a distinguished legislator, extremely bright.”

His advocacy on behalf of the Lovings rarely came up in his political campaigns. Moran said many of his legislative colleagues were unaware of it.

Bennett Cohen said his sense was that the civil rights cases of the 1960s weren’t on people’s immediate minds in the ’80s and ’90s, when his father was active in politics. The Loving case, though, had a huge resurgence in public interest in the last decade, in part driven by the documentary and the 2016 Hollywood feature film “Loving,” but even more so by the parallels people saw between the Loving case and the debate over same-sex marriages.

Bennett Cohen noted that on Monday, the day his dad died, vice presidential nominee Kamala Harris talked about the Loving case during the Supreme Court confirmation hearings for Amy Coney Barrett.

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