An “Express Intention:” Marriage and Divorce Before the Loving Decision

Looking up at the justices of the Virginia Supreme Court of Appeals sitting behind their dark paneled bench, Richard and Mildred Loving heard the words of that 19th century suit invoked to justify their own punishment. Their later exoneration by the United States Supreme Court, in the appropriately styled Loving v. Virginia, made them a precedent setting couple in their own right. But before Kinney and Loving there were countless Virginia couples that attempted to live their lives like any other citizens despite laws that criminalized their unions, or in one case complicated their disunion.

The Norfolk County chancery cause of Nicodemus D. Lunsford v. Lola P Lunsford (alias: Viola Clapp), 1904-018 played out in a way that illustrates the difficult position that the Commonwealth had created for itself with the Kinney decision. In November 1878, not long after the court settled Kinney, Nicodemus Lunsford and Viola Clapp traveled to Boston with the intention of getting married. The marriage was announced in the Boston Globe, and the couple was joined together in a service conducted by the Reverend William Dennis of the Twelfth Baptist Church, earlier known as the “Church of the Fugitive Slaves in Boston.” The pair had gone to these lengths to marry because Nicodemus was Black and Viola was white.

By the time they were enumerated in the 1880 U.S. Census, the couple was back in Norfolk living on Willoughby Street in the 4th Ward and had a daughter, Lillian. The census taker identified everyone in the household as Black, but this seems to be a clerical error.

The couple continued to live together and added a second child, Velma, but by July 1885, Viola had deserted Nicodemus and her daughters and returned to her home state of Maine. While we do not know the entirety of her motive for doing so, her one letter to Nicodemus reportedly said that she would “never again live with a man of color” and a witness surmised she left in part because “she was never received into white society, nor was she received among the colored people” which “caused her to be dissatisfied”.

An Ancestry.com index of Maine court cases indicates that Nicodemus filed for a divorce in Piscataquis County, Maine during the September term 1888. However, it is unclear from the indexing whether the divorce was granted. Likely, the court did grant the divorce because Viola married again in April 1889 in Maine. That should have ended the legal filings related to the union of Mr. and Mrs. Lunsford but Nicodemus perhaps wanted to go a step further to ensure that his rights, both parental and property, were protected.

In July 1889, Nicodemus Lunsford filed a bill of complaint for divorce in the Norfolk County Circuit Court. The bill lays out the facts that the couple went to Boston with the “express intention to marry” because they were “forbidden to do so in Virginia.” Lunsford asked the Virginia court to nullify the marriage presumably to clarify the custody of his daughters and to protect his property from any later claim by Viola. However, his case placed the Virginia courts in a complicated position. If the court granted the divorce, it would have tacitly acknowledged the marriage, which was illegal under Virginia law per Kinney, a point made in some of the legal notes included in the case file.

Though the chancery suit contains 66 pages including depositions, a Boston marriage record, attorney’s notes, and draft decrees, ultimately, it appears that the court decided to make no decision at all. Despite three versions of decrees (decisions in a chancery cause) laying out different, nuanced scenarios– one for nullifying the marriage, one for granting a complete divorce, and one for dissolving the union– which would allow the Commonwealth to walk a fine line vis-à-vis interracial marriage, none of the decrees are ordered to be recorded by the judge.

One obstacle to nullifying the marriage as was done in Kinney and other cases in which the two parties went out of state to get married, was that Viola was not a Virginia resident at the time of the marriage, and having returned to Maine, was not a resident at the time of the divorce proceedings. One circular argument laid out in one of the decrees surmises that since “the domicil [sic] of the husband is that of the wife”, Viola could be considered a resident of Virginia, meaning that the court would have had to concede that they were married in order to then declare the very same marriage legally impossible.

Although a divorce would acknowledge the validity of the marriage it might be worth it in order to shame the participants since according to notes in the case file “the intent is clearly to discourage and prevent any such marriages and to prevent them from being together also in this state if they or either of them was a domiciled citizen of this state”. The notes continue to surmise that it might be possible to obtain such a shameful divorce on grounds that Viola’s marriage and desertion showed that “one who would act as she has might be guilty of improper living at her present place of abode” as well.

A double-check of the Norfolk County Circuit Court Order Books confirmed that none of these decrees were entered in Lunsford v. Lunsford. In March 1904, the court struck Lunsford v. Lunsford from the docket in Norfolk County likely alongside other inactive suits. It was common for the courts periodically remove inactive cases from the court’s calendar.

Many other couples, like Atha Sorrells and Robert Painter, would challenge racially biased state laws in the civil and criminal courts and fight for their right to marry.

In 1955, another interracial couple fought for their right to divorce, this time a white woman and a Chinese man. The Virginia Supreme Court decided in Naim v. Naim to grant an annulment. The case more closely followed the Kinney precedent, the couple had traveled outside the state to marry but were both Virginia residents at the time the request was filed. The only reason the annulment turned into a court case was that the husband, Han Say Naim, appealed an annulment based on miscegenation and continued to appeal all the way to the Supreme Court of the the United States, which declined to hear the case.

It would take 63 years after Lunsford before the Loving case settled the marriage question once and for all.

-Vince Brooks, Ella Swain, and Jessi Bennett