Interracial marriage laws now fifty years old

It is often forgotten that America's laws against inter-racial marriage were a particular inspiration to Adolf Hitler, who cited them in Mein Kampf.  Luckily we changed.

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The Lovings - historical image -

WASHINGTON, June 25, 2017 — Interracial marriages became legal nationwide in June 1967 when the U.S. Supreme Court, in the case of Loving v. Virginia, overturned Virginia’s anti-miscegenation law, and with it similar laws in roughly one-third of the states. Some of the state laws went beyond black and white, prohibiting marriage between whites and Native Americans, Filipinos, Indians, Asians and in some states “all non-whites.”

Mildred and Richard Loving, a black woman and a white man, had been sentenced to a year in prison in Virginia for marrying each other. The sentence was suspended on the condition that they leave Virginia. They had married in the District of Columbia, where such marriages were legal, but returned to live in their home in Virginia.

When police raided their Central Point home in 1958 and found a pregnant Mildred in bed with her husband and a D.C. Marriage certificate on the wall, they arrested them, leading the Lovings to plead guilty to cohabiting as man and wife in Virginia.

One of the lawyers who represented the Lovings, Philip Hirschkop, now 81, recalls,


“Neither of them wanted to be involved in the lawsuit or litigation or taking on a cause.  They wanted to raise their children near their family, where they were raised themselves.”

The Lovings knew what was at stake. “It’s the principle. It’s the law. I don’t think it’s right,” Mildred Loving said in archival video footage shown in an HBO documentary. “And if we do win, we will be helping a lot of people.”

RIchard Loving died in 1975, Mildred Loving in 2008.

Those of us of a certain age who lived in the South during the years of segregation remember a world that younger Americans can hardly imagine. Blacks could not eat in the restaurants, had separate schools, sat in the back of the bus, and often were prevented from voting. There were separate waiting rooms and restrooms at airports and bus and train stations. When I taught a course at the Pentagon, I noticed that there seemed to be far too many restrooms. I asked why this was so, and was told that the Pentagon was built when Virginia was segregated; these represented separate facilities for black men and women and white men and women.

Virginia’s law against interracial marriage was much discussed when I was in law school, several years before the Supreme Court decision. This law was particularly offensive to those who believed in limited government and individual freedom. What right did the state have to tell anyone who to marry based on race?

I did a legal research paper on the subject and later, in graduate school, a master’s thesis expanding upon this. I wrote an article, “Will the Supreme Court Uphold Mixed Marriages?” in the Negro Digest of March 1965, which later appeared in the book, “Marriage Across The Color Line.”

I recently re-read that article and think that the history included in it is instructive. The first law banning mixed marriages was passed in 1662 by the Colony of Maryland. Virginia followed in 1691 with a statute providing that a white man having a child with a Negro or mulatto should pay a fine of 15 pounds or, in default of payment, be sold for five years. Massachusetts enacted its first anti-miscegenation statute in 1705, followed by Delaware (1721), Pennsylvania (1726), and North Carolina (1741).

By 1932, 30 states forbade interracial marriage and the penalties provided for the violation of these laws varied from imprisonment for a few months to a term of up to ten years and fines up to $20,000.

As late as 1963, 24 states maintained such laws. Courts which upheld these statutes pointed to the allegedly valid reason for their establishment and enforcement. In Scott v. Georgia, it was held that the amalgamation of the races was not only unnatural but “is always productive of deplorable results.”

“Our daily observation shows us that the offspring of these unnatural connections are generally sickly and effeminate and that they are inferior to the full blooded of either race in physical development and strength.”

The opinion in an early Missouri case, State v. Jackson, held that mixed unions were incapable of reproduction. Later courts followed this precedent. They often spoke in general terms, arguing that it is “well-established law” that such statutes are a proper exercise of the state’s police power, often substantiating this by analogy to statutes prohibiting incestuous marriages, polygamy, and restrictions based on age.

The first case involving interracial marriage to reach the Supreme Court was Pace v. Alabama.  The case was tried under an indictment charging the defendants, with cohabitation in violation of the Alabama code. The code provided heavier penalties for interracial cohabitation than for the same offense by members of the same race.  Mr. Justice Field said:

“Indeed, the offense … cannot be committed without involving persons of both races in the same punishment … the punishment of each offending person, whether white or black, is the same.”

The argument advanced most frequently to justify such legislation is that of non-white mental and physical inferiority. The reasoning of a judge sitting on the Tennessee Supreme Court is typical:

“We know that the complainants … belong to a race but recently emancipated from slavery; that as a race they are far below the white man in intelligence.”

Slowly, the effort to eliminate such laws began to progress. In 1949, the Supreme Court of California struck down that state’s miscegenation statute. In its opinion of Perez v. Sharp, the court declared:

“The right to marry is as fundamental as the right to send one’s child to a particular school or the right to have offspring. A statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry. Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the U.S. Constitution does not refer to the rights of the Negro race, the Caucasian race, or any other race, but to the rights of the individuals.”

It is often forgotten that America’s laws against inter-racial marriage were a particular inspiration to Adolf Hitler, who cited them in Mein Kampf. Professor James Q. Whitman of the Yale Law School writes:

“On June 5, 1934, about a year after Adolf Hitler became Chancellor of the Reich, the leading lawyers of Nazi Germany gathered at a meeting to plan what would become the Nuremberg Laws, the centerpiece anti-Jewish legislation … The meeting involved a lengthy discussion of the law of the United States. At its very opening, the Minister of Justice presented a memorandum on U.S. race law and, as the meeting progressed, the participants turned to the U.S. example repeatedly … They engaged in detailed discussion of the statutes from the 30 U.S. States that criminalized racially mixed marriages.”

In the 50 years since Loving, Americans have increasingly married across racial and ethnic lines.  Currently, 11 million people—or 1 in 10 married people—in the U.S. have a spouse of a different race or ethnicity, according to a Pew Research Center analysis of U.S. Census Bureau data. In 2015, 17 percent of newlyweds intermarried. When the Supreme Court decided the Loving case in 1967, only 3 per cent of newlyweds intermarried.

Our multi-racial, multi-ethnic and multi-religious society continues to have problems and difficulties, as any community of complex and imperfect human beings will inevitably face.  But for those of us who remember the years of segregation, the changes we have witnessed have been positive and dramatic.

If you had predicted when we were in college that we would live to see a black Secretary of State, Supreme Court Justice, Attorney General and President, people would have viewed you as mad. No one made such predictions. Yet, today, any American, regardless of race, can go as far as his or her ability will permit.

Commemorating the 50th anniversary of the Supreme Court’s decision in the case of Loving v. Virginia provides us with an appropriate occasion to remember how far we have come and to consider, as well, how much further we need to go.

America remains a work in progress, and it is important to emphasize “progress.”

 

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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.