Marriage prohibitions

Part 1:
Conflict over inter-racial marriage in the U.S.:
Miscegenation laws. Supreme Court ruling of 1967.

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Laws forbidding inter-racial marriage:

In the US, miscegenation laws that restricted marriages on the basis of race were once enforced in most states. For example:

	In the 1660s, Maryland became the first colony to prohibit interracial marriages. 1
	By 1750, all the southern colonies as well as Massachusetts and Pennsylvania made interracial marriages illegal. 1 For example, Virginia had a law stating that "All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process." (Code Ann. A7 20-57)
	During the 1950s, half of the states still had laws prohibiting interracial marriage.
	By the early 1960's at least 41 states had enacted anti-miscegenation statutes at one time. 1

	in Maryland, when slavery was introduced in 1664, "the law also prohibited marriages between white women and black men.... between 1935 and 1967, the law was extended to forbid marriage between Malaysians with blacks and whites. The law was finally repealed in 1967." 2
	The first court to overturn an anti-miscegenation law was, predictably, the California Supreme Court in 1948. 3
	By 1967, 16 states still had anti-miscegenation laws in place.

The Superior Court of New Jersey once commented:

"In case after case, legislation prohibiting racial inter-marriage was justified as unbending tradition rooting in received natural law." ₁

For example, in 1869, the Georgia Supreme Court ruled that:

"...moral or social equality between the different races...does not in fact exist, and never can. The God of nature made it otherwise, and no human law can produce it, and no human tribunal can enforce it. There are gradations and classes throughout the universe. From the tallest archangel in Heaven, down to the meanest reptile on earth, moral and social inequalities exist, and must continue to exist throughout all eternity." ₄

"Eternity" came to a crashing halt 98 years later, in 1967.

How the miscegenation laws ended: the Loving v. Virginia case:

In a most ironically named case "Loving v. Virginia," Richard and Mildred Loving -- interracial married newlyweds -- were arrested in the early morning of 1959-JUL-11 by the county sheriff and two deputies who broke into their bedroom. They had been married just five weeks before in the adjacent District of Columbia where interracial marriages were legal. The couple pleaded guilty to a felony under Virginia's Racial Integrity Act of 1924. ₅ The law recognized only two races: white and colored.

The latter was defined by the "one-drop" rule. A person was considered "colored" if they had as few as one non-white ancestor. However, the law contained what was called the "Pocahontas exception." A person who had completely white ancestry back four generations except for a single great-great Native American grandparent was considered white. _6,7 So much for the purity of the races!

The Loving couple could have each received a 5 year prison term; instead, they were partly exiled from their home state for 25 years. Each was allowed to return to Virginia, but not together. Judge Leon Bazile apparently ignored the principle of separation of church and state as well as the equal protection clause in the U.S. Constitution when delivering his decision. Part of his ruling stated:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races show that he did not intend for the races to mix."

Although often referred to as black throughout the Internet, Mildred Loving regarded herself as a Native American of Rappahannock and Cherokee heritage. ₅

Ms. Loving wrote to Attorney General Robert F. Kennedy (D) for help. He referred her to the American Civil Liberties Union who took up their case. They appealed the decision to the Virginia Supreme Court of Appeals and lost again. Finally, they appealed to the US Supreme Court. In 1967, the court unanimously overturned the Virginia law and all of the miscegenation laws of 15 other states. ₈ Persons of different racial backgrounds have been able to marry throughout the US ever since. However, many of the miscegenation laws remained on the books even though nullified by the Supreme Court decision.

Blogger Jack M. Balkin wrote:

"In Loving v. Virginia, the Supreme Court held that laws banning interracial marriage violated the Equal Protection Clause [-- the 14th Amendment of the U.S. Constitution --] both because they violated principles of racial equality and because they abridged a fundamental right to marry. The case is doctrinally important for many reasons, including the Court's recognition that the Equal Protection clause protects certain fundamental rights, for its recognition of a fundamental right to marry, for its application of strict scrutiny to strike down racial classifications (an idea first raised in the Korematsu decision, which had nevertheless upheld the classification), and for its embrace of an anti-subordination as well as an an anti-classification model of race equality." ₉

1967-JUN-12: The U.S. Supreme Court decision:

Some excerpts from the court ruling are:

"This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. ... For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment. ..."

"The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 258 of the Virginia Code:

Leaving State to evade law. -- If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.

Section 259, which defines the penalty for miscegenation, provides:

Punishment for marriage. -- If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years. ..."

"Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a white person; marrying other than another white person,; a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants' statements as to their race are correct, certificates of "racial composition" to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage."

"... the State [of Virginia] contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages. ..."

"... we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. ..."

"There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. ..."

"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage 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. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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. ..."

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classifications." ₁₀

This topic continues in the next essay

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Lewis et al., v. Harris, et al. Superior Court of New Jersey: Brief of plaintiffs in opposition to defendant's motion to dismiss," 2003-MAY-8, at: http://www.lambdalegal.org/
2. Eddie Becker, "Chronology on the history of slavery and racism," at: http://innercity.org/holt/slavechron.html 
3. Perez, supra, 198 P.2d 17. Quoted in Ref. 1.
4. Scott v. State, 39 GA 321 (1869). Quoted in Ref. 1.
5. Douglas Martin, "Mildred Loving, Who Battled Ban on Mixed-Race Marriage, Dies at 68," The New York Times, 2008-MAY-06, at: http://www.nytimes.com/
6. "Racial integrity act of 1924," Wikipedia, as on 2013-JAN-09, at: http://en.wikipedia.org
7. Text of the "Racial integrity act of 1924," University of Virginia, undated, at: http://www2.vcdh.virginia.edu/
8. The text of Loving v. Virginia is at: http://caselaw.lp.findlaw.com/
9. Jack M. Balkin, "Mildred Loving Speaks," Balkinization blog, 2008-MAY-06, at: http://www.intellisearchnow.com/
10. Text of "Loving v. Virginia (No. 395) 206 Va. 924, 147 S.E.2d 78, reversed," U.S. Supreme Court, 1967-JUN-12, at: http://www.law.cornell.edu/

Copyright 1997 to 2013 by Ontario Consultants on Religious Tolerance
Latest update: 2013-FEB-26
Author: B.A. Robinson

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