On April 10, 1967, Chief Justice Earl Warren called out to the spectators seated in the United States Supreme Court informing them that oral arguments for Case Number 395 were about to begin. Better known as Loving v. Virginia, Case Number 395 was Richard Perry Loving’s appeal of his and his wife Mildred’s felony convictions under Virginia’s anti-miscegenation statutes; their crime was being married.
As oral arguments in the case began, attorney Philip Hirschkop —representing the Lovings and speaking quickly and precisely, with a mid-century Brooklyn accent — explained to the Court that "there's actually one simple issue, and the issue is may a state proscribe a marriage between two adult consenting individuals because of their race."
Throughout Loving, the Commonwealth of Virginia relied almost exclusively on the work of one person to support its "strong local public policy" against intermarriage: sociologist and rabbi Albert I. Gordon.
The history and legal effect of the Loving case has been written about and studied at length. But how did a Jewish northerner rabbi—a man that Democratic Vice President Hubert Humphry called a "dear friend" who "prayed me through many a crisis" — become the ideological linchpin in Virginia’s effort to keep a ‘racial purity law’ alive?
First, some background on the man himself: Albert Isaac Gordon was born in 1903 in Cleveland, and was later ordained as a rabbi at the Conservative movement’s Jewish Theological Seminary in June 1929. Soon after, from 1930 to 1946, Gordon served as rabbi to the Adath Jeshurun Congregation in Minneapolis.
From 1946 to 1950, Gordon led the United Synagogue of America, the Conservative movement’s federation of synagogues, and earned his Ph.D. Gordon later served as a congregational rabbi at Newton’s Temple Emanuel synagogue until his death in 1968.
During the post-war period, Gordon, like large segments of the Jewish community, became extremely focused on the perceived threat of Jewish intermarriage, and sought to stop it.
- How the Jewish-American elite has manufactured the intermarriage 'crisis'
- Who would you be allowed to marry in Israel today?
- Jewish publications really shouldn’t platform Jew-hating white supremacists
- Anti-Semitism saves 'Loving' from the tedious fate of mediocrity
At the time, the idea that Jews marrying partners of another faith was both undesirable and detrimental to household stability as well as Jewish continuity was hardly a fringe belief within the Jewish community.
For example, the president of the Rabbinical Council of America, representing a large contingent of American Orthodox rabbis, told the Council in 1950 that intermarriages "undermine the stability of the home, increase the number of unhappy marriages, and bring children into the world with a rift in their souls which can never be healed." Similar comments were made at the annual convention of the Rabbinical Assembly of America, the association of affiliated Conservative rabbis.
As historian and scholar Lila Corwin Berman points out, the use of sociology and sociological language was a pivotal element in American rabbis’ call for Jewish intramarriage (also termed endogamy). Because this frame didn’t require acceptance of supernatural belief, it was acceptable to those segments of the Jewish community (e.g., Reform and Conservative) for whom religious faith was more flexible.
And because sociological framing of the issue didn’t require affirming immutable biological differences between groups, it provided a "respected American way for rabbis and other Jews to imagine the terms of Jewish survival" in a manner that didn’t directly invoke race. (Gordon indeed called American hostility to interracial marriage on the basis of biology entirely invalid and bigoted.)
This was the ideological environment in which Gordon published his 1964 book, Intermarriage: Interfaith-Interracial-Interethnic. The book sought to capture all of the available resources on intermarriage and to predict "what society may expect in the years ahead."
Acknowledging that he was writing with a specific point of view informed by his decades in the rabbinate, Gordon concluded that intermarriages were far less likely to result in successful marriages, would cause children of these unions harm, were unwise, and constituted "a threat to both personal and group happiness."
Writing in the American Jewish Historical Quarterly, a contemporary reviewer of Gordon’s book noted that although the book’s "imposing title would seem to indicate an encompassing summary of the literature, some original work, [and] several hypotheses about the factors that go in to intermarriage…such is not the case."
Virginia, however, held Gordon’s book as near-gospel during its judicial crusade to keep interracial marriage unlawful. Robert D. McIlwaine III, the Assistant Attorney General for Virginia, informed the Court that Gordon’s work was "widely-accepted" and "the definitive book on intermarriage, and has the most careful, up to date, methodologically sound study of intermarriage in North America that exists."
The Assistant Attorney General then pivoted from questions about interfaith marriage to interracial marriage, still using Gordon’s text as support for the law. Virginia’s pretextual justification for their ban on interracial marriage was "that from the psycho-sociological point of view, interracial marriages are detrimental to the individual, to the family, and to society."
As McIlwaine dodged the Justices’ questions probing Gordon’s specific religious affiliation, and on a theoretical ban on interreligious marriage, he informed the Court that "the evidence in support of the prohibition of interracial marriage is stronger than that for the prohibition of interreligious marriage." That conclusion "is bottomed almost exclusively on this particular volume."
But Virginia obscured why Gordon reached the conclusion that interracial marriage was worse than interreligious marriage in the first instance, and obscured the fact that Gordon never argued for, or assented to, a prohibition against either type.
Throughout his book, Gordon plainly stated that white supremacy in America was the underlying reason why cultural, economic, and political opportunities would remain closed to the children of intermarried parents (thus causing harm to their children). In fact he denounced the "unreasoning and highly emotional [biological] basis for opposition to Negro-White marriages."
Put differently, the reason why Gordon concluded the detrimental effects of interracial marriage occurred was because of existing racism and all of its attendant harms. Gordon believed intermarriages in general were likely to fail, but that interracial marriages had even less of a chance to succeed – because of pervasively racist social mores.
The children of an interracial marriage, even more than those of interfaith marriages, would live under intolerable stress. "If interfaith marriages require great courage, then interracial marriages may be said, under present conditions in our society, to require even greater fortitude." (Gordon's use of "fortitude" here is more synonymous with foolishness, or irresponsibility.)
Throughout his time during oral argument, McIllwaine was careful not to give the impression that Gordon himself would have supported Virginia’s legal prohibition on interracial marriages, "but we do say that he personally and clearly expresses his view as a social scientist that interracial marriages are definitely undesirable in that they hold no promise for a bright and happy future for mankind."
In fact, Gordon made clear that he would not have endorsed Virginia’s laws.
"Our democracy would soon be defeated if any group on the American scene was required to cut itself off from contacts with persons of other religions or races. The segregation of any group, either voluntary or involuntarily, that creates walls of separation between some Americans and their fellows is, as I see it, unthinkable and even dangerous."
The Court unanimously rejected Virginia’s arguments, noting that Virginia’s laws were "measures designed to maintain white supremacy," and concluded that restricting the freedom to marry based on an individual’s race violates the Constitution’s Equal Protection Clause.
In its short opinion, the Court informed the public that 16 states’ laws which sought to maintain "the purity of the races and in preventing the propagation of half-breed children" are impermissible infringements on citizens’ rights, whether or not there is a sociological justification provided.
Gordon, the rabbi who was the star non-witness of Loving, died a year after oral argument. We don’t know his reaction to having his work cited so heavily by Virginia, or if he was even aware of the occurrence (his archives don’t include reference to the case or opinion, as far as I could find).
Although Gordon might have been able to envision a future in which the second most powerful person in the world is about to be a Black Indian American Senator married to a Jewish man, could he have further conceived that such a marriage would be viewed as an example of the American body politic’s quest for a ‘more perfect union’?
Gordon cautiously informed readers of his book that he "lay no claim to omniscience or infallibility….Perhaps our society will change so radically in its views and attitudes [towards intermarriage] within the next decade...However, I doubt that such a condition is likely to occur."
Perhaps, five decades later, it finally has.
Jonah Nelson is a writer and former labor lawyer based in New York City. Twitter: @TheKoomKoom