Anti-Miscegenation Laws: Background information when reading Everything I Never Told You

Anti-Miscegenation Laws

This article relates to Everything I Never Told You

According to the 2010 census, the number of mixed-race and mixed-ethnic couples in America grew by 28% from 2000 to 2010. At one time marrying outside one's race was considered, at best, controversial, but a 2007 Gallup poll cites 87% of Americans as approving of the practice. Such levels of acceptance were not always apparent, however, with state anti-miscegenation laws remaining on the books as late as 2000.

The term miscegenation, meaning the interbreeding of different racial types (irrespective of marriage status), was first coined by the American press in the 1860s, in articles countering the abolition of slavery. The implication was that a huge population boom of mixed-race children would occur without laws prohibiting the races from mixing. In reality, purely physical interactions were rarely covered by the anti-miscegenation laws as other ones already prohibited unmarried sex. Thus, anti-miscegenation laws have generally come to be about those prohibiting marriage between races.

In the United States, laws prohibiting interracial marriage were enacted well before the American Civil War, with edicts being issued as early as 1660 to prevent marriage between black slaves and their white owners. In Virginia the first law prohibiting free blacks from marrying outside their race was enacted in 1691, followed the next year by Maryland. Many states followed suit over the coming decades, and anti-miscegenation laws followed the population as the American West was settled. Some states did repeal these laws early on. Pennsylvania, for example, legalized marriage between races as part of a bill enacted in 1780 for the gradual abolition of slavery, and in 1843 Massachusetts repealed its laws because of protests by abolitionists. By the end of the 19th Century, 11 states had repealed their anti-miscegenation laws (and seven — Connecticut, New Hampshire, New York, New Jersey, Vermont, Wisconsin and Minnesota — never had them). This left 30 states enforcing laws making marrying outside one's race a felony crime.

The constitutionality of anti-miscegenation laws was upheld by the U.S. Supreme Court in 1883, ruling in Pace v. Alabama that these laws were not in violation of the 14th Amendment (which cites equal protection under the law) because both races were punished equally for the offense. A national anti-miscegenation law was never passed, however, in spite of several attempts to enact one.

The case overturning one of these laws was brought by Andrea Perez to the California Supreme Court in 1948 in Perez v. Sharp. Perez, a Mexican-American categorized as "white," and Sylvester Davis, an African American, applied for a marriage license but were refused by W.G. Sharp, a county clerk. Perez petitioned the California Supreme Court to compel the license. Her argument was that the couple were members of the Roman Catholic Church and wanted a Catholic wedding which the church was willing to grant. The law infringed on their right to participate in the religious sacrament of marriage, forbidding it solely on the basis of race. In a landmark ruling, the court decided 4-3 in Perez's favor. Anti-miscegenation laws began falling across the country as a result, particularly in western and southwestern states.

Public opinion remained staunchly against interracial marriage, however. According to a 1958 Gallup poll, only 5% approved of the practice, with 95% disapproving.

The 1967 Supreme Court decision in Loving v. Virginia ruled all laws forbidding relations between races to be unconstitutional. In 1958, Mildred Jeter became pregnant and so she and Richard Loving married in Washington D.C. to avoid the laws in their home state of Virginia. After their return home, the state police, acting on an anonymous tip, raided their bedroom and arrested the couple. The judge, Leon Bazile, sentenced them to one year in prison, but would suspend the sentence if they left the state and didn't return for 25 years; the Lovings complied and moved to Washington D.C. They became frustrated by their inability to visit family in Virginia, however, and Mildred wrote to Attorney General Robert F. Kennedy about their plight. He referred them to the ACLU, which filed a motion in Virginia on their behalf.

The case first went back to Judge Bazile's court on 1965, who denied their appeal, famously stating:

Almighty God created the races white, black, yellow, malay, and red, and 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 shows that he did not intend the races to mix.

The case was next brought before the Supreme Court of Virginia, which invalidated the original ruling but upheld the state's Racial Integrity Act banning interracial marriages. It finally went to the U.S. Supreme Court in 1967, which ruled that:

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 to marry, a person of another race resides with the individual and cannot be infringed by the State.

At the time of the ruling, 17 Southern states (all former slave states plus Oklahoma) still banned interracial marriage. The ruling made these laws unenforceable, and states gradually removed them from their books. Alabama was the last state to repeal its anti-miscegenation law — in 2000 (more than 30 years after the court decision).

Loving v. Virginia is celebrated annually on June 12 as "Loving Day." The case has frequently been cited as a precedent in recent same-sex marriage cases.

Picture of Mildred Jeter and Richard Loving by Patrick Neil

Filed under Society and Politics

This "beyond the book article" relates to Everything I Never Told You. It originally ran in July 2014 and has been updated for the May 2015 paperback edition. Go to magazine.