Before We Fought Over Same-Sex Marriages, We Fought Over Black-White Marriages

Roundup: Media's Take

From NPR's "All Things Considered" (March 16, 2004):

ROBERT SIEGEL: In this season of national argument over same-sex marriage, we're taking a look at two historical controversies over marriage and the law. Yesterday, we heard about polygamy and, today, racial intermarriage, or miscegenation as it was called. From the earliest Colonial times until the 1960s, the marriage of two people of different races was illegal in much of the country. Historian Peggy Pascoe, who teaches at the University of Oregon in Eugene , says laws against intermarriage were the longest-lasting form of legal racial discrimination in America .

Professor PEGGY PASCOE ( University of Oregon ): They were in effect in 30 states, every Southern state, the vast majority of Western states, some of the states on the border like Indiana . And they weren't declared unconstitutional till 1967, when the US Supreme Court finally issued its famous decision, Loving vs. Virginia .

SIEGEL: Until that time, there actually was a law in Virginia that made it illegal for a white and a black to marry.

Prof. PASCOE: There was. In all the states that had these laws, there were prohibitions on marriages between whites and blacks, but that was not the extent of the prohibitions. A dozen states prohibited whites from marrying Asian-Americans. A dozen more prohibited whites from marrying Indians. Nine states prohibited whites from marrying Filipinos. And even that wasn't the end of it. Arizona prohibited whites from marrying Hindus. My own state of Oregon prohibited whites from marrying native Hawaiians....

SIEGEL: As you said, at least, I guess, 30 states has miscegenation laws that made this illegal, but that meant there always were states where it wasn't illegal.

Prof. PASCOE: Yes. And over time, what that meant was that couples who wanted to marry learned a sort of geography of evasion. And if they wanted to try to marry, they would learn which states they could go to and find licensing clerks that would issue them licenses, and then they would return to their own state. That did not always provide the protection that they wanted. It wouldn't necessarily defend them from an inheritance case or other kinds of legal challenges. But it did, in many cases at least, give them marriage licenses.

SIEGEL: This could ultimately serve as some historical precedent for what we're about to see if different states treat same-sex marriage very differently. Typically--I mean, do states set aside their own view of marriage in order to honor another state's laws, or typically not?

Prof. PASCOE: Well, in the case of miscegenation law, most state marriage codes had provisions that said that a state would ordinarily recognize as valid marriages made in other states. And a couple of states-- California was one of them--upheld that even when it came to miscegenation law. But the vast majority of states found ways to make exceptions to that policy.

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