Fighting Discrimination

Honoring The Legacy Of Bernard Cohen

  Rebecca Rifkind-Brown

On Oct. 12, a man named Bernard Cohen passed away from Parkinson’s disease. He was 86.

The name may not ring a bell, but Cohen successfully argued an important case before the U.S. Supreme Court that advanced the rights of millions of Americans and that still reverberates today – Loving v. Commonwealth of Virginia.

In Loving, the Supreme Court struck down state bans on interracial marriages, bans that were, in some states at least, based on racist interpretations of the Bible.

In 1958, Richard and Mildred Loving were arrested in Virginia for violating the state’s ban on interracial marriage. (Richard was white; Mildred was Black and also part Native American.) They had married in Washington, D.C., where interracial marriage was legal but returned to Virginia to live. One night, a sheriff stormed into their house at 2 a.m., informed the couple that their marriage was unlawful and arrested them. 

The Lovings originally pleaded guilty to violating Virginia’s Racial Integrity Act of 1924 and, to avoid prison, agreed to leave and not reenter the state for 25 years. Unhappy away from their home, the couple reached out to U.S. Attorney General Robert F. Kennedy who connected them with the American Civil Liberties Union and to Cohen, who took on the case as a volunteer lawyer.  

The Lovings lost the first round in court, with a state judge issuing a famously inane ruling that read in part, “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.”

Along with his co-counsel, Philip J. Hirschkop, Cohen filed a federal class-action suit. The crux of their argument relied on equal protection and due process under the law. While arguing in court, Cohen cogently stated, “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 Supreme Court unanimously ruled that laws prohibiting interracial marriage were unconstitutional. The ruling was frequently cited during the 2015 Supreme Court argument over marriage equality in Obergefell v Hodges (a decision that, unfortunately, may now stand in jeopardy).  

Cohen was the son of two Jewish immigrants and was born in Brooklyn in 1934. He studied economics at the City College of New York and graduated from Georgetown Law in 1960. He was just seven years out of law school when he argued the monumental case in front of the Supreme Court. Cohen practiced in Arlington, Va., where he specialized in environmental and employment law. He also served in the Virginia House of Delegates for nearly 20 years, representing sections of Arlington.

Bernard Cohen helped change American history and expanded rights. Thanks to his courtroom work, an injustice was corrected, and a religion-based justification for discrimination was repudiated. It’s a powerful legacy, and we should honor it today by continuing to oppose efforts to allow discrimination under the guise of religious freedom.

Photo: Bernard Cohen (left) and Philip J. Hirschkop during a 1967 ABC News interview.

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