Marriage prohibition and criminalization on the basis of race.

Part 1:
Conflict over inter-racial marriage in
the U.S. Anti-miscegenation laws.
The Supreme Court ruling of 1967 in
Loving v. Virginia.

Laws forbidding inter-racial marriage:

US anti-miscegenation laws restricting marriages on the basis of race were once enforced in most states. Sometimes, they were referred to as miscegenation laws. The word comes from Latin: "miscere" (to mix) and "genus" (kind).

Some examples:

	In the 1660s, Maryland became the first colony to prohibit interracial marriages. 1 The act that introduced human slavery in 1664: "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 The law was finally repealed in 1967." 2
	By 1750, all the southern colonies as well as Massachusetts and Pennsylvania had 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)
	The first court to overturn an anti-miscegenation law was, predictably, the California Supreme Court in 1948. 3
	During the 1950s, about half of the states still had laws prohibiting interracial marriage.
	In 1958-SEP, a Gallup poll revealed that only 4% of American adults favored allowing interracial couples to marry! 94% were opposed! 12
	By the early 1960's at least 41 states had enacted anti-miscegenation statutes at one time. 1

By 1967, 16 states still had anti-miscegenation laws remaining in place. All were in the southeast quadrant of the United States, from Virginia to Texas to Florida. These are shown in red in the following illustration: States shown in gray never had anti-miscgenation laws; those in green had laws repealed before 1887; those in yellow had laws repealed between 1948 and 1967:

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Still, the territories of Alaska and Hawaii and a few states in the north-east quadrant of the U.S. never passed anti-miscegenation laws. The legislatures of other states repealed their laws at various times. These are shown in green and yellow above.

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

Very often in the history of religion and culture, "natural law" has been used to justify prejudice and bigotry.

Another example occurred in 1869, when 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." ₅

Their implication seems to be that all white persons are closer to the angels than are all blacks. Also, they seem to have assumed that all black persons are closer to reptiles than are all whites.

As far as interracial marriage is concerned, the "eternity" hoped for by the court in Georgia lasted for four generations. It came to a crashing halt everywhere in the U.S. 98 years later. In 1967 the U.S. Supreme Court declared the anti-miscegenation laws that were still in place among 16 states to be unconstitutional. U.S. couples -- whether of the same or different races -- became eligible to marry in any state, as long as they consisted of one woman and one man. The Court reached this conclusion even though the vast majority (72%) of American adults were still opposed to legalizing interracial marriage at the time. Also a near majority (48%) favored criminal punishments for interracial couples who married.

Support and opposition to interracial marriage has changed dramatically over the five decades from 1967 to 2015:

• As noted above, In 1958, only 4% of U.S. adults favored allowing black-white interracial couples to marry. ₁₂
  
  
• By 1967, when the High Court issued its ruling, the vast majority (72%) of American adults were still opposed to legalizing interracial marriage. Also a near majority (48%) favored criminal punishments for interracial couples who did marry. At that time, many conservative clergy still argued that when God created the world, he placed different races of humans in different areas of the world. Further, they believed that God intended that the races remain separated, and not intermarry.
  
  
• By mid-2013, polling data showed that about 87% of U.S. adults favor allowing interracial couples to marry. This included 96% of blacks and 84% of whites. The margin of error is ~+mn~2 percentage points. ₁₃

A similar trend happened in early 21st century with gay marriages (a.k.a. same-sex marriages).

• In 2004, Massachusetts became the first state to legalize gay marriage. Other states followed, either by legislative action, public referendums, or court rulings.
• By 2014-OCT, same-sex marriages were still banned in 15 U.S. states and in all 5 territories.
• This became 14 states during 2015-JAN when Florida was forced to accept marriage equality by a court decision.
• It became 4 territories during 2015-JUN when Guam legalized gay marriages. At the time, a substantial majority -- over 60% -- of American adults favor allowing same-sex couples to marry.
• On 2015-JAN-16, the U.S. Supreme Court accepted four appeals from the 6th U.S. Circuit Court of Appeals.
• On 2015-JUN-26, the High Court legalized gay marriage across the country.
• Within a month, the vast majority of U.S. same-sex couples were routinely able to pick up marriage certificates at their local county courthouse. Exceptions were:
  • One county in Kentucky. The clerk there objected on religious grounds to same-sex couples marrying and stopped issuing licenses to any couples.
    
    
  • The Territory of American Samoa. The Government was undecided about whether the U.S. Supreme Court's ruling applies to their population.

How the anti-miscegenation laws ended in the remaining 16 southern states: 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. They had been married just five weeks previously in the adjacent District of Columbia where interracial marriages were legal. Various sources say that the county sheriff and two deputies broke into the bedroom of their home in Virginia, or that they simply entered the home through an unlocked front door. The couple were charged with a felony under Virginia's Racial Integrity Act of 1924. The charge read that they had:

"... unlawfully and feloniously go[ne] out of the State of Virginia, for the purpose of being married, and with the intention of returning to the State of Virginia."

and for:

"... cohabiting as man and wife against the peace and dignity of the Commonwealth." ₁₁

They chose to plead guilty. ₆

The Virginia marriage law recognized only two races of human beings: white and colored. The latter was based on the "one-drop" rule. A person was considered "colored" if they had as few as one non-white ancestor -- no matter how many generations back that ancestor lived.

The law could never be strictly applied, because evidence shows that the ancestors to Homo Sapiens -- modern humans -- originated in Africa about 600,000 years ago. Thus, all of today's caucasians have black ancestors if you go back sufficiently far in history.

The Virginia 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. _7,8 Apparently, Native Americans were less non-white then were African Americans. So much for the purity of the races!

The Loving couple could have each received a 5 year prison term, However, the Honorable Judge Leon M. Bazile was a compassionate person; he only gave them a one year sentence in County Jail. Then he suspended the sentence and partly exiled them from their home state for 25 years. Each was allowed to return to Virginia, but only as individuals and not as a couple. The trial judge apparently ignored the principle of separation of church and state as well as the equal protection clause in the 14th Amendment of the U.S. Constitution when he delivered his decision.

That is, the law said that race trumps love and commitment, if wife and husband are of different races.

Although she is often referred to as black throughout the Internet, Mildred Loving (1940-2008) was actually part black, and part Native American of Rappahannock and Cherokee heritage. ₆

In 1963, Ms. Loving heard that Congress was working on a bill that would become the Civil Rights Act of 1964. She thought that their exile might be challenged in a civil rights lawsuit. She wrote to Attorney General Robert F. Kennedy (D) for help. He referred her to the American Civil Liberties Union (ACCLU) who took up the Loving's case. The ACLU first asked Judge Bazile to vacate the appealed convictions and sentences. He refused, saying -- on behalf of God -- that:

"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." ₁₁

The ACLU then appealed the decision to the Virginia Supreme Court of Appeals. They lost. 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. ₉ Chief Justice Earl Warren wrote.

"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."

Persons of different racial backgrounds have been able to marry throughout the U.S. ever since. However, many of the miscegenation laws remained on the books for many years even though they had been 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 [--in 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." 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. "U.S. States, by the date of repeal of anti-miscegenation laws," Wikipedia, at: http://en.wikipedia.org/ Graph shown under the Creative Commons Attribution-ShareAlike License
5. Scott v. State, 39 GA 321 (1869). Quoted in Ref. 1.
6. 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/
7. "Racial integrity act of 1924," Wikipedia, as on 2013-JAN-09, at: http://en.wikipedia.org
8. Text of the "Racial integrity act of 1924," University of Virginia, undated, at: http://www2.vcdh.virginia.edu/
9. The text of Loving v. Virginia is at: http://caselaw.lp.findlaw.com/
10. Jack M. Balkin, "Mildred Loving Speaks," Balkinization blog, 2008-MAY-06, at: http://www.intellisearchnow.com/
11. Fay Botham, "Almighty God Created the Races: Christianity, Interracial Marriage, and American Law," University of North Carolina Press, (2013) Read reviews or order this book safely from Amazon.com online book store
12. "Marriage," Gallup, 2015, at: http://www.gallup.com/
13. "In U.S., 87% Approve of Black-White Marriage, vs. 4% in 1958," Gallup, 2013-JUL-25, at: http://www.gallup.com/poll/

Copyright 1997 to 2015 by Ontario Consultants on Religious Tolerance
Latest update: 2015-AUG-20
Author: B.A. Robinson

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