Loving v. Virginia case cited as legal precedent in interracial lesbian couple's marriage equality fight

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During a road trip heading north from her hometown in Lynchburg, Virginia, Joanne Harris stopped at a friend’s house for a backyard cookout and caught the eye of a woman named Jessica Duff staring intently at her from the porch.

“As soon as I got out of the car, Jessi looked at me as if I was the most beautiful woman she had ever seen in her life,” Harris reminisced as she endearingly turned to Duff in the Virginia home they now share, reliving how they first met in 2002.

Over a decade later, Harris and Duff — an interracial couple — are leading a charge to overturn Virginia’s same-sex marriage ban, which was implemented through a constitutional amendment in 2006, so that they can enjoy the benefits of legal marriage.

To help make their case, lawyers for the couple have filed a suit that hearkens back to a previous fight for the freedom to marry in their home state — the Loving v. Virginia Supreme Court decision that rendered interracial marriage universally legal.

A class action suit for marriage equality

Harris and Duff filed a class action suit in August 2013 with the American Civil Liberties Union of Virginia, Lambda Legal, and the firm Jenner and Block against Virginia governor Bob McDonnell in the fight for marriage equality in their home state.

Even without the legal protections of marriage, Duff and Harris have a traditional, partnered life. Their commitment to each other and traditional marriage values drives their desire for social recognition of their bond.

Duff, 33, works in child protective services. Harris, 37, leads a diversity initiative at Mary Baldwin College. They both remain committed to Christianity through their local church, and grew up in rural Virginia.

“I’m a Southern girl who grew up on a farm and comes from very traditional roots,” explained Harris, who is African-American. “My parents were married before they lived together, and it’s something both Jessi and I wanted to do.”

Because they see their extended family almost daily, staying in Virginia as a legally married couple is a necessity for them.

Their son speaks out for marriage equality

They currently reside in Staunton, Virginia with their four-year-old son Jabari, Harris’s biological child, who was born after the couple became partners.

When Jabari was born, Duff and Harris bustled through the hospital like most new parents, with a nervous excitement born of the first steps of motherhood. Except Duff felt a burden many couples may not confront as she supported her partner – proving her son belonged to two mothers.

“My main goal through the whole pregnancy was to make sure my face was seen with Joanne, and that the doctors and nurses knew my presence, even if it meant asking questions that didn’t need answers, so they would get to know who I am,” Duff said.

Jabari does not understand why his mothers cannot get married like his friends’ parents, according to the couple. Their legal complaint states that Jabari once went to school and told his friends, “Barack Obama is president, and hopefully he will help my mommies get married.”

President Barack Obama became the first sitting president to publicly endorse gay marriage in 2012.

A familiar history of love defying boundaries

Nearly fifty years earlier, in a county not too far from where Duff and Harris reside, a local sheriff barged into the home of Mildred and Richard Loving one evening, and arrested them for living together as an interracial couple in Virginia.

Mildred, an African-American woman, and Richard, a white man, had lived in Virginia as a couple for most of their lives, until word reached the local authorities that they had legally married in Washington, D.C. and returned to Virginia, where interracial marriage was illegal.

As a result, the couple traveled inconspicuously, often hiding in the trunk of a car, to see their extended families in Virginia.

They were sentenced to a year in jail, but contested the charges. Ultimately, their case went to the Supreme Court. After winning the landmark Loving v. Virginia case in 1967, ending Virginia’s ban on interracial marriage, this precedent struck down similar laws in more than a dozen states.

Gay marriage in Virginia and the Loving precedent

Although their battle is not hinged on race, the case filed on behalf of Harris and Duff cites the Loving v. Virginia precedent in its arguments. The parallels are not exact, but the underlying message regarding love as a force defying all boundaries is compelling.

At its height, the Loving story fit a national narrative of the late ‘60s dramatizing the quest for racial equality – their last name expressing the ethos of desegregation. Their lives were a plea for equal protection under law for their love made in universal terms. The same could be said of Harris and Duff today.

This connection seems even more clear in the fact that Mildred Loving mentioned gay couples in a statement she made supporting the freedom for all to marry in 2007, a year before she passed away.

Yet, according to Bernard Cohen, one of her ACLU attorneys during the Loving v. Virginia trial, Mildred Loving still grappled with supporting same-sex marriage fully and connecting it with her struggle. “It didn’t bother me that Loving v. Virginia was being compared to same-sex marriage, but it bothered Mrs. Loving,” Cohen told theGrio.

Recognizing the parallels and differences

Harris and Duff recognize that relating the struggle for marriage equality to the plight of African-Americans could be seen as a co-optation of blacks’ painful histories and continuing struggles for racial parity. Yet, they truly respect the Lovings’ trailblazing history.

“There are clear parallels between our story and the Lovings’ story, but I often remind people we do not live in fear every day that we are going to be arrested because we want to be married. Those are clear differences,” Harris stated emphatically.

“The Lovings’ fight was race alone. Ours is gender,” Duff elaborated. “Yet our love [is] also discriminated against like in the Lovings’ situation.”

Although their legal case does not address questions of race, Harris and Duff still navigate them as an interracial couple raising a bi-racial child.

“My coming out process as a black woman was different than Jessi’s because my parents raised my siblings and I to know our history in this country. If Jessi did not embrace black culture, she probably wouldn’t be my wife,” said Harris. “It’s important for us that Jabari understands black culture in his community. We want to prepare him for questions he may face: how he has two moms, a black mom and a white mom, how he identifies racially, and how they perhaps intertwine.”

Future of marriage laws in Virginia

According to Cohen, at the time of the Loving case popular opinion in Virginia swayed against interracial marriage, even if nationally people supported it. “I believe society was on the side of the Lovings at the time of their case, but not to the extent that it is now with gay marriage issues,” said Cohen. “The outcome will rely on the majority’s moral judgment on same-sex marriage.”

According to a Washington Post poll, approximately 56 percent of Virginia voters support the legalization of same-sex marriage, an increase from 46 percent in 2011, in the wake of the U.S. Supreme Court’s 2013 decision to strike down part of the federal Defense of Marriage Act (DOMA).

“We know that Virginians want to treat everybody in their community fairly and believe that the government should treat people equally,” said Duff. “We feel that the people in our community know us well and accept us for who we are.”

For Harris and Duff, marriage would mean greater health care protections, rights as co-parents for their son, and access to other safety nets. Harris has epilepsy, so Duff wants legal say over her medical care, for instance, should she become incapacitated.

A separate gay marriage case is also being argued in Virginia, led by the lawyers who helped overturn California’s Proposition 8. The ACLU-led case on behalf of Harris and Duff is set to continue in January 2014.

In the meantime, they wait until the state of Virginia decides whether or not to accept their committed relationship in legal terms. “We have this boring, but special, life that we share like any other family,” Harris said of Duff and Jabari, with a light chuckle. “I just want people to understand our love.”

Follow Dominique Mann on Twitter @dominiquejmann