In the end, Bazile refused to vacate the conviction, instead issuing on January 22, 1965, a
racially charged ruling defending Virginia's antimiscegenation laws. "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents," he wrote. "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."
Bazile's decision was both appealable and, from the perspective of the Lovings' lawyers, helpfully inflammatory. By clarifying the judge's motivations and introducing religious and moral elements to the case, the ruling may have helped win attention to the case. Many years later, Hirschkop told an interviewer, "When Judge Bazile rendered his opinion, he couldn't have done us a bigger favor than that horrible language about the races on a separate continent."
The Loving case wended its way through the state and federal appeals process until, on March 7, 1966, the Virginia Supreme Court of Appeals again
upheld Virginia's antimiscegenation laws. At the same time, the court set aside the original conviction, finding a sentence that required the defendants to leave the state "unreasonable." The court also chided the trial judge for sentencing the Lovings to one year in jail, suspended, when the Code of Virginia required that they be sentenced to the penitentiary. The case was returned to the circuit court of Caroline County. The Lovings, however, appealed to the U.S. Supreme Court, and this time the court agreed to hear the case.
The Supreme Court heard oral arguments in the case of
Loving v. Virginia on April 10, 1967. The Lovings declined their attorneys' invitation to attend the hearing. On behalf of the commonwealth, Assistant Attorney General R. D. McIlwaine III
argued that Virginia law did not violate the Fourteenth Amendment, and that even if it did it would be legitimate on the grounds that it protected the state from the "sociological [and] psychological evils which attend interracial marriages." In particular, McIlwaine cited academic research that suggested "that intermarried families are subjected to much greater pressures and problems than those of the intramarried and that the state's prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent."
For the Lovings, Hirschkop argued that Virginia law violated the Fourteenth Amendment's promise of equal protection under the law by denying potential spouses and their children their civil rights simply because of race. "These are slavery laws, pure and simple," he said. In reference to the Act to Preserve Racial Integrity, Hirschkop noted that Virginia was "not concerned with racial integrity of the Negro race, only the white race." In fact, he noted, nonwhite non–African Americans could marry African Americans without penalty.
Perhaps the most dramatic moment in the courtroom came when Cohen, arguing that the law violated the Lovings' rights to due process, told the justices, "No matter how we articulate this, no matter which theory of the due process clause or which emphasis we attach to, 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 ruled unanimously in favor of Richard and Mildred Loving, striking down Virginia's law as a violation of the Fourteenth Amendment. In his opinion, Chief Justice Earl Warren described marriage as "one of the 'basic civil rights of man,' fundamental to our very existence and survival … To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law."
