Legal trailblazer Bernie Cohen dies at 86

Legal trailblazer Bernie Cohen dies at 86
Bernie Cohen with wife Rae, approximately 1970. (Courtesy Photo)

By Denise Dunbar |

While many people worked to further marriage equality, it’s difficult to imagine that anyone played a larger role in bringing it to fruition than long-time Alexandria lawyer and state delegate Bernie Cohen, who died on Oct. 12 at age 86 from Parkinson’s Disease.

Cohen, along with co-counsel Philip Hirschkop, argued before the U.S. Supreme Court in April 1967 that bans on interracial marriage were unconstitutional in the famous case “Loving v. Virginia.” Two months later, the Supreme Court unanimously ruled in favor of Mildred and Richard Loving, striking down laws in 15 states that banned interracial marriage.

Bernie Cohen with former law partners Sandra Rohrstaff and Tom Curcio, and Michele Thompson, long time legal assistant, who Bernie hired through a
student work program at T.C. Williams High School in the early 1980s and who stayed with the firm long past Bernie’s retirement. (Courtesy Photo)

“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state,” Chief Justice Earl Warren wrote in the opinion, according to

The Loving case was later cited by Supreme Court Justice Anthony Kennedy in his opinion striking down state bans on gay marriage in the 2015 case “Obergefell v.

Cohen helped found the Virginia chapter of the American Civil Liberties Union in the early 1960s soon after graduating from Georgetown Law School, according to Wikipedia. In 1964, then Attorney General Robert F. Kennedy forwarded a letter to the Virginia ACLU from Mildred Loving – a woman of Native American and African descent who was married to a white man – that wound up with Cohen.

Though Cohen was only 29 at the time, he later said he knew right away that the case could go all the way to the U.S. Supreme Court.

“When I told Richard [Loving] that, his jaw dropped,” Cohen said to the Fredericksburg
Free Lance-Star in January 2019 at a gathering celebrating his 85th birthday.

Cohen and Hirschkop argued that the ban on interracial marriage violated both the due
process and equal protection clauses of the 14th Amendment, according to the Free Lance-Star. The day that decision was announced, June 12, 1967, is now celebrated each year on its anniversary as “Loving Day.”

Cohen’s former law partner Tom Curcio told of the day when an interracial couple came
up to Cohen at a screening of a documentary on the Loving case and asked to have their
picture taken with Cohen.

Bernie Cohen campaigning for the House of Delegates, approximately 1979. (Courtesy Photo)

“I was speaking with Bernie when a young African-American man and his white wife came up and introduced themselves to Bernie, with the husband thanking Bernie for all he did, as but for ‘Loving’ he would not have been able to marry the woman he loved,” Curcio wrote in a Virginia Bar tribute to Cohen. “He then asked if they could have a
picture taken with him. Bernie, being always gracious, said, ‘Of course’ and I took the picture.

“As this is going on, I’m getting all choked up and said to Bernie that I couldn’t believe what just happened after the couple left. With the usual gleam in his eyes, Bernie smiled and said, ‘Tom, you would not believe how often that happens,’” Curcio said.

Much of Cohen’s political and legal work focused on advancing the rights of individuals, either against the state or relative to large corporations. As a first term delegate to the Virginia House of Delegates in 1980, Cohen sponsored a bill that did not pass that would have decriminalized homosexuality in Virginia.

“Bernie made his mark as a trailblazer,” former Alexandria Mayor Kerry Donley, who ran several of Cohen’s early political campaigns, said. “Not just in his practice of law. He took those same values to the legislature in Virginia … He sponsored a number of pieces of legislation, civil rights, social justice, equality. He took on some big institutional types.”

Donley recalled the time Cohen went onto the floor of the House of Delegates and cut up his credit card to make a point.

“He didn’t like the way credit card companies disclosed their finance charges. I got a call from the Virginia Bankers’ Association. I called up Bernie. He came and the VBA guy came and [Bernie] went toe to toe with him,” Donley said. “Bernie was right. He sponsored legislation that changed disclosure. He would get into the details like no legislator I’ve ever seen.”

Bernie Cohen with son Bennett on a Aug. 22, 2015, flight to the Long Island National Cemetery to visit the gravesite of Bernie Cohen’s older brother, a U.S. Army infantryman who was killed in the waning days of WWII. It was the last time Cohen and his son flew together. (Courtesy Photo)

Virginia Secretary of Public Safety and Homeland Security Brian Moran, who succeeded Cohen in the House of Delegates, said Cohen had a way of distilling and explaining complex and controversial issues. In the 1990s, a sodomy bill came before the legislature and became an issue in one of Moran’s campaigns.

“[Cohen] says, ‘Hey, what two consenting adults do in the privacy of their own bedroom is of no interest to me. It’s none of my business,’” Moran said. “[Cohen said] ‘You can’t just shake your head and disagree with your opponents. You need to articulate a view that no one can disagree with.’”

Former Alexandria City Councilor David Speck, who was elected to the House of Delegates the same year as Cohen, remembers working together on Alexandria issues.

“If there was one word that I will always associate with Bernie it was passion,” Speck said. “No one ever had any trouble knowing what issues he pursued and no one ever doubted for a minute he would not quit until he achieved a desired outcome. In politics that is the true meaning of the long game, and Bernie played that as well as anyone could ever hope. ‘Loving’ was just one of the many legacies he has left for Virginia.”

Former law partner Sandra Rohrstaff said Cohen’s laser devotion to justice meant he wasn’t always the easiest person for opponents to deal with.

Bernie Cohen with wife, Rae, and son, Bennett on March 25, 1967. (Courtesy Photo)

“He was not just a personal injury lawyer. He went up against giant corporations that did things that injured people. … He had this sense of justice that was deeply imbedded in him. He couldn’t help but want justice for people who couldn’t get it for themselves,” Rohrstaff said.

Numerous people also mentioned Cohen’s kindness and humility.

Rohrstaff said she joined Cohen’s firm as a secretary, and he encouraged her desire to attend law school at night while working for the firm by day. She eventually became a partner in his firm.

Rohrstaff said that when lawyers pass the bar in Virginia, they are sworn in by the state Supreme Court. When she was sworn in, Cohen made sure it was a special day.

“He had a gold Jaguar at the time. He drove me and my family down to Richmond and he honored me with his comments to the Supreme Court of Virginia. He took a whole day out of earning a living … to drive me and my family. … That’s the kind of guy he was,” Rohrstaff said.

Donley said Cohen never mentioned his involvement in the Loving case during the campaigns they worked on together.

“Bernie was humble about his successes as a litigator and as a legislator,” Donley said. Moran said one of the things that stood out to him about Cohen was his devotion to his family – his wife, Rae, and children, Bennett and Karen.

Bernie Cohen with daughter Karen Cohen in front of the Supreme Court of Virginia, upon Karen’s swearing in to the bar of Virginia. (Courtesy Photo)

Rae Cohen concurred, “I understood the time that he had to put into these important cases. He thought they were especially important and deserved the time and attention. … It was a wonderful relationship. I couldn’t have done better.”

Bernie Cohen shared a love of flying airplanes and riding motorcycles with his son, Bennett.

“I had a very special bond with my father. We loved to go flying together. … He wasn’t a daredevil. He was a calculated risk taker,” Bennett Cohen said. “That’s one of the things that I learned from my dad was how to manage risk.”

Karen Cohen remembers her father as someone who mentored others and helped boost the careers of other lawyers – including her.

“Bennett was the kid who brought out dad’s inner adventurer. I was the kid who brought out dad’s inner nerd,” Karen Cohen said. “We shared the love of the law. Dad went to Georgetown and so did I.”

After Cohen’s death, Virginia Gov. Ralph Northam announced that flags throughout the state would be flown at half-staff on the day of his interment. Northam’s statement read, in part:

Bernie Cohen, high school graduation, 1952. (Courtesy Photo)

“Bernard S. Cohen lived his life taking on injustice. As a lawmaker and an attorney, he fought for justice and equality from the Virginia Capitol to the United States Supreme Court, where his landmark 1967 victory in Loving v. Virginia overturned the ban [on] interracial marriage and was cited in the court’s [2015] ruling on marriage equality.

“Thanks to his courageous work and lifetime of service, Virginia’s air is cleaner, our
politics are more spirited, and our laws are fairer and more loving.”

Bernard S. Cohen was born on Jan. 17, 1934 in Brooklyn, New York to Jewish immigrants from Latvia and Romania. His father was a fur worker who was active in a local union, which informed Bernie Cohen’s passion for helping working people, according to Wikipedia.

He graduated from Georgetown University law school in 1960 and practiced law in Alexandria, specializing in environmental and employment law, until his retirement in 2006, according to the Free Lance-Star. Cohen served in the Virginia House of Delegates from 1980 to 1996.

He is survived by his wife of 61 years, Rae, children, Bennett and Karen, and three grandchildren. In lieu of flowers, donations in Cohen’s honor may be made to the ACLU, Legal Services of Northern Virginia, or The Michael J. Fox Foundation for Parkinson’s Research.