Vol. 5, Iss. 12

December 7, 2016 The risk for a lawyer, of starting their career at the top, is obvious. It is hard to imagine one who faced this peril more than Philip Hirschkop. Just one month after his graduation from Georgetown, Hirschkop signed on to represent Richard and Mildred Loving, seeking to invalidate a Virginia statute that criminalized their inter-racial marriage. Richard was white. Mildred was black. Three years later, in 1967, Hirschkop argued the case before the United States Supreme Court, which unanimously held that the law was unconstitutional. Loving v. Virginia put an end to antimiscegenation statutes in Virginia and fifteen other states. Loving is now the subject of a major motion picture by that name. The Oscar buzz is louder than a honey farm.



Following Loving, the possibility of a sophomore jinx had to loom large for Hirschkop. But he quickly proved he wasn’t just a rookie phenom. A year after Loving, now practically a grizzled veteran, Hirschkop represented an amicus party in the U.S. Supreme Court case declaring unconstitutional an Arkansas law that prohibited teachers, in state schools, from teaching Darwin’s theory of evolution. Hirschkop was again before the Supreme Court a few years later, striking down laws that required pregnant teachers to go on unpaid maternity leave several months before their due date and also placed restrictions on their return date. Hirschkop played a large role in the federal court litigation that resulted in women being admitted to the University of Virginia on an equal basis as men. He was at the forefront of the Alabama federal court litigation that invalidated laws designed to prevent African American teachers from gaining tenure. In fact, Hirschkop even made a mark a year before Loving – convincing the Fourth Circuit that teachers have a Constitutional right to engage in civil rights activities.



Protecting the rights of women, minorities and teachers are just a part of Philip Hirschkop’s breathtaking five decade career. It has also included safeguarding the rights of prisoners and bringing about prison desegregation, serving as a principal lawyer for the peace movement, protecting animal rights and their activists (PETA’s Legal Department was named for him in recognition of 35 years of service), fighting for academic freedom, defending against wiretaps (including for the Hunt Brothers), pursuing claims against physicians for medical malpractice and upholding the First Amendment in a variety of contexts – including one very close to home. See Philip Hirschkop v. Virginia State Bar (4th Cir. 1978) (finding unconstitutional a section of the Virginia Code of Professional Responsibility that restricted lawyers from commenting about pending litigation). The list is endless, including another behemoth not long ago – convincing the Virginia Supreme Court to recognize a cause of action for tortious interference with parental rights.



The first paragraph of Philip Hirschkop’s obituary is going to contain the word Loving. That’s undeniable. But many of Hirschkop’s cases are just as groundbreaking in their own right. They aren’t household names like Loving -- but have affected millions in the nation’s households.



The 80 year old Hirschkop, with an absolutely astonishing memory for names, dates and details from events decades prior, was kind enough to speak to me for an hour, from his home in Lorton, Virginia, about an unimaginable career. To listen to history, described by someone who was a part of it, is a special experience. It was a Saturday morning phone call I won’t soon forget.

Loving v. Virginia: At A Theater Near You



Loving is one of those movies where you know the ending before buying a ticket. [That didn’t hurt Titanic.] So I don’t suspect that what follows is a spoiler. In 1958, Richard and Mildred Loving, residents of Virginia, traveled to the District of Columbia to get married. They returned home and were arrested – in their bedroom, in the middle of the night – for violating a Virginia law that prohibited an inter-racial couple from cohabitating, as man and wife, following an out-of-state marriage. Facing a one to five year prison sentence, the Lovings agreed to plead guilty in exchange for a one year suspended sentence, provided they moved out of Virginia and not return for 25 years. The Lovings left their close knit families and moved to the District of Columbia.



The film is a powerful portrayal of the impact that the exile had on the Lovings’ lives. It was at times gut-wrenching to watch as they were forced to live and raise their children away from their families and faced constant fear of arrest when secretly returning home for visits. That you know the Lovings win in the end does nothing to ease witnessing their suffering. Cut to a few years later. The civil rights movement took hold and Mildred wrote to Attorney General Robert Kennedy seeking his help. Kennedy couldn’t -- but he referred the matter to the American Civil Liberties Union. A green ACLU lawyer – Bernard Cohen -- offered to help the Lovings. Cohen, in need of advice, paid a visit to a former professor at Georgetown Law School. Cohen entered his professor’s office and met Hirschkop, a recent graduate of the school who just happened to be there. Hirschkop and Cohen quickly teamed up and sought to have the Lovings’ sentence vacated. The Virginia Supreme Court upheld the constitutionality of the state’s antimiscegenation statutes and affirmed the trial court’s refusal to vacate.



The United States Supreme Court agreed to hear the Lovings’ appeal. Hirschkop and Cohen split the oral argument. The high court unanimously reversed the convictions, holding that “[m]arriage is 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.”



Hirschkop is portrayed in Loving by actor Jon Bass. So how did Bass do? Hirschkop tells me that he was too mild mannered and nothing like the man himself. While Hirschkop says that Loving served its purpose, he also listed several discrepancies between the film and the way it really went down.



But that’s no reason not to see it. And do so while it’s still on the big screen. It’s not often that a theater audience stays in its seats while the credits roll to a conclusion. That’s the power of Loving – leaving its viewers to stare at anonymous names while absorbing what they just witnessed. That won’t be the same in your living room with Netflix. [Hitschkop appears in the credits with appreciation].



Loving: The Time Was Right



Hirschkop tells me that the time was right for the Supreme Court’s decision in Loving. He points to a miscegenation case several years earlier – which, he says, had a better record than Loving – that the Court declined to hear. So once the Supreme Court agreed to hear Loving, Hirschkop says, it was game over. He jokes that he could have sent his dog to bark at the court and gotten the decision. But don’t take that the wrong way. While Hirschkop was very confident of a win, it really wasn’t so simple and required a lot of preparation. He described to me the strategic decisions made in approaching the case – due process versus equal protection -- to obtain a unanimous decision as well as avoid, what they feared, a narrow one that simply reversed two Virginia statutes.



Hirschkop points to the Supreme Court’s 1963 decision in Gideon v. Wainwright – holding that the Sixth Amendment right to counsel in a criminal case applies to the states -- as the force behind the Loving decision. While the two cases are nothing alike, Hirschkop describes Gideon as the beginning of the Warren Court’s efforts to “bring the Constitution into the Twentieth Century.” Other civil rights cases followed Gideon and then along came Loving -- which Hirschkop called “the most feared part into segregation – inter-racial marriage” and the Supreme Court was “ready to be make a big change in the law that affected society.”



The similarities between Loving and the Supreme Court’s 2015 decision in Obergefell v. Hodges, which held that same sex couples have a fundamental right to marry, are hard to miss. Not surprisingly, Loving is cited extensively in the decision, with the court observing that “[t]he reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.”



Hirschkop came to Loving by happenstance. Did visiting Georgetown that day change his life? Could the former Green Beret, and Columbia undergraduate, have spent the next 50 years writing contracts, or arguing over who had the green light, if he hadn’t been in that place at that time? No, he tells me. Except to keep him in Virginia – instead of a likely return home to the New York metropolitan area – he says that Loving didn’t change the course of his life. He was on a path to be a civil rights lawyer -- with or without Loving.



Loving: Not His Favorite Case



Despite its notoriety and impact, Loving wasn’t Hirschkop’s favorite case. As litigation goes, he says that Loving wasn’t all that interesting. To make this point he compares it to Kirstein v. University of Virginia, which Hirschokop says is the case he enjoyed most. At issue in Kirstein, before a Virginia federal court, was the University’s denial of admission to women, forcing them to attend universities -- and inferior at that -- preparing them to be teachers. Hirschkop described the creativity in litigation that was needed to win Kirstein (by settlement), such as securing expert witnesses and deposing the heads of various Virginia schools about their reasons why women could not attend (urinals in the dorms were cited). Not to mention that a full evidentiary hearing took place. Kirtstein, Hirschkop says, involved creating a massive record – which did not occur in Loving, on account of the procedural direction that the case took. [But Hirschkop was prepared to do so in Loving – having lined up renowned experts to defeat the state’s argument that inter-racial marriage had an adverse impact on children.]



Another of Hirschkop’s favorite cases was Cohen v. Chesterfield County, before the U.S. Supreme Court (1974), which abolished teacher maternity leave policies as illegal sex discrimination. Again, much different from Loving, the case involved strategy, planning, depositions and client interaction, not to mention a trial in the Eastern District of Virginia. When the school board attempted to justify the maternity leave policy on grounds of a fire hazard, Hirschkop called the fire chief to the witness stand. When medical reasons were asserted to keep pregnant teachers out of the classroom, Hirschkop countered with medical experts to prove otherwise.



Lawyer For The Peace Movement



Hirschkop was one of the principal lawyers involved in the protests against the Vietnam War, including representing Norman Mailer, Dr. Benjamin Spock, Dick Gregory, Candace Bergen and Jon Voight. This had its origins in a major march on the Pentagon and Capitol in 1965 (remember, he graduated from law school in 1964). Following the march, some in need of counsel called William Kunstler [“Everyone with half a brain who had a civil rights problem called William Kunstler,” Hirschkop said. Hirschkop and Kunstler were co-counsel in cases over the years.] Kunstler referred them to Hirschkop on account of his experience in mass demonstration cases in the South.



From there, Hirschkop met key people in the peace movement and was positioned to play a major role when the very large demonstrations took place in 1968 and 1969. When the big law firms became involved, Hirschkop was brought in to lecture their lawyers on how to handle demonstration cases – such as through the use of test case trials to deal with mass arrests. Hirschkop’s extensive role in the movement reached the point of several meetings with John Dean to negotiate permits for protests. Hirschkop was even assigned his own police cruiser and marshals and granted the right to cross police lines.



The peace movement is what ultimately brought about the end of the war. Hirschkop calls his role in that movement, whatever it was, the major accomplishment of his legal career.



Representing PETA From Day One



That PETA’s seventeen lawyer Legal Department was named for Hirschkop speaks volumes about the extent of his involvement with the animal rights organization. In fact, it started in 1980, the year the organization was founded and consisted of just two people working out of an apartment. Hirschkop was contacted after some animal rights activists, including PETA founder Ingrid Newkirk, were arrested in Virginia for picketing against a small rodeo. After securing their acquittal, Hirschkop went on to represent PETA in every major case the organization has had, as well as every one of its major officers at one point or another.



There are lots of published opinions of PETA cases involving Hirschkop’s involvement. They are fascinating and Hirschkop’s track record is very impressive. When PETA was hit with a $4.2 million jury verdict, for secretly taping a Vegas entertainer for allegedly mistreating orangutans used in his animal act, Hirschkop had the judgment reversed by the Nevada Supreme Court (and PETA was subsequently awarded several hundred thousand dollars for costs). Hirschkop succeeded in enjoining the use of the website peta.org – People Eating Tasty Animals. In another, PETA was not able to convince a California federal court that killer whales at Sea World are protected by the Thirteenth Amendment’s abolition of slavery. As unusual as it sounds, the court still needed a few pages to reject it.



PETA gets a bad rap, Hirschkop says, blaming it on the organization’s success in taking on industries that are well-funded and can mount extensive false attacks against it. The animal lover Hirschkop (his dog, Bob Marley, is sitting next to him on the couch) calls his work with PETA the most satisfying of his career and its people wonderful. He says that throughout his career his clients never worried about him -- only about winning their cases. But PETA was different – Hirschkop telling me how worried they were about his health when he took ill during a case.



Quietly Making Noise For 50 Years



Philip Hirschkop is a contradiction in terms. He spent 50 years making tremendous noise as a lawyer – both by his own actions and in the impact of his results. But Hirschkop is not a household name like some other lawyers who have handled high-profile cases and had famous clients. He certainly could have been. But he chose not to do the things that can make lawyers into celebrities. He turned down several offers over the years from publishers to write a my life in court-type book. He says he has no interest. More than going to a star-studded party after a win, Hirschkop’s biggest satisfaction, he told me, was looking at himself in the shaving mirror the next morning and saying – hey pop, I did good.



Hirschkop has just two pictures on his desk – one of his old dog and the other, taken by Bernard Cohen, of him and his father standing before the Supreme Court after the argument in Loving. “To me, that’s more than reward enough.”