Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation

We are in the midst of an attempt to ground a category of discrimination in the fundamental social bedrock of marriage law. I would argue that it is virtually impossible to understand the current debate over same-sex marriage without first understanding the history of American miscegenation laws and the long legal fight against them, if only because both supporters and opponents of same-sex marriage come to this debate, knowing or unknowingly, wielding rhetorical tools forged during the history of miscegenation law. The arguments white supremacists used to justify for miscegenation laws--that interracial marriages were contrary to God's will or somehow unnatural--are echoed today by the most conservative opponents of same-sex marriage. And supporters of same-sex marriage base their cases on the equal protection clause of the Fourteenth Amendment, echoing the position the U.S. Supreme Court took when it declared miscegenation laws unconstitutional in the case of Loving v. Virginia. Both sides confront the structures of marriage law exclusion that were also forged during the history of miscegenation, including, as I show below, the legal maneuvering over the seemingly minor bureaucratic practice of issuing marriage licenses.

A Brief History of Miscegenation Laws

Today, when one out of every fifteen American marriages is interracial, many people are surprised to learn that laws prohibiting interracial marriage (otherwise known as miscegenation laws) were so deeply embedded in U.S. history that they would have to be considered America's longest-lasting form of legal race discrimination--they lasted far longer than either slavery or school segregation. All told, miscegenation laws were in effect for nearly three centuries, from 1664 until 1967, when the U.S. Supreme Court finally declared them unconstitutional in the Loving decision.

The first law against interracial marriage was passed in the colony of Maryland in 1664. It set a precedent that spread to the North as well as the South: Massachusetts, for example, adopted a miscegenation law in 1705. After British colonies turned into American states, they continued, one by one, to pass miscegenation laws, until, by the time of the Civil War, they covered most of the south, much of the mid-West, and were beginning to appear in western states, too. Before the Civil War, there was only one significant challenge to this pattern of steady expansion. In Massachusetts, in the 1830s, a remarkable group of radical abolitionists went out on a limb to argue that the Massachusetts miscegenation law contradicted the fundamental American principle of civil equality. For more than a decade, abolitionists urged the Massachusetts state legislature to repeal the law; finally, in 1843, they succeeded.

Outside Massachusetts, however, laws against interracial marriage held firm right through the Civil War--and beyond. One of the first things defeated white Southerners did at the end of the Civil War was to pass new, and stronger, miscegenation laws as part of their infamous black codes. Determined to overcome Southern resistance, the federal government built its Reconstruction program around the promise of equality, then embedded this promise in the language of the Fourteenth Amendment to the U.S. Constitution, which guarantees all citizens "equal protection" of the law. During Reconstruction, the collision between the power of the federal government and the resistance of white Southerners was sharp enough to dislodge miscegenation laws in several Southern states. In fact, during Reconstruction eight of the eleven formerly Confederate states abandoned their laws against interracial marriage.

But it soon became apparent that Reconstruction would not survive long enough to become a turning point in the history of miscegenation law. As Reconstruction collapsed in the late 1870s, legislators, policymakers, and, above all, judges began to marshal the arguments they needed to justify the reinstatement--and subsequent expansion--of miscegenation law.

Here are four of the arguments they used:

1) First, judges claimed that marriage belonged under the control of the states rather than the federal government.

2) Second, they began to define and label all interracial relationships (even longstanding, deeply committed ones) as illicit sex rather than marriage.

3) Third, they insisted that interracial marriage was contrary to God's will, and

4) Fourth, they declared, over and over again, that interracial marriage was somehow "unnatural."

On this fourth point--the supposed "unnaturality" of interracial marriage--judges formed a virtual chorus. Here, for example, is the declaration that the Supreme Court of Virginia used to invalidate a marriage between a black man and a white woman in 1878:

The purity of public morals," the court declared, "the moral and physical development of both races….require that they should be kept distinct and separate… that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.

The fifth, and final, argument judges would use to justify miscegenation law was undoubtedly the most important; it used these claims that interracial marriage was unnatural and immoral to find a way around the Fourteenth Amendment's guarantee of "equal protection under the laws." How did judges do this? They insisted that because miscegenation laws punished both the black and white partners to an interracial marriage, they affected blacks and whites "equally." This argument, which is usually called the equal application claim, was hammered out in state supreme courts in the late 1870s, endorsed by the United States Supreme Court in 1882, and would be repeated by judges for the next 85 years.

During the late 19th century, this judicial consensus laid the basis for an ominous expansion in the number, range, and severity of miscegenation laws. In Southern states, lawmakers enacted new and tougher laws forbidding interracial marriages. Seven states put miscegenation provisions in their state constitutions as well as in their regular law codes, and most raised criminal penalties to felony level. In Florida, for example, the penalty for interracial marriage was a maximum of 10 years in prison; in Alabama, 2-7 years. Meanwhile, western states set off in a new direction by expanding the racial coverage of the laws. A dozen states passed laws prohibiting whites from marrying American Indians; a dozen more targeted Asian Americans; nine targeted Filipinos. Some states went even further. Arizona, for example, prohibited whites from marrying "Hindus" and my own state of Oregon prohibited whites from marrying Native Hawaiians, or Kanakas. Courts responded by expanding the racial coverage of the equal application claim, too. Thus the Oregon Supreme Court declared that Oregon's miscegenation law did not discriminate (in this case, against Indians) because, as the judge explained, it ""applied alike to all persons, either white, negroes, Chinese, Kanaka, or Indians."

Between 1880 and 1950, the regime of miscegenation law was at the height of its power. The laws were in effect in thirty states--every Southern state, the vast majority of western states, and several states on the border, like Indiana. Those states that didn't have miscegenation laws on their books, mostly in the Northeast, boasted that they didn't need to, because opposition to interracial marriage was by then so deeply rooted that new laws were simply unnecessary.

The power of these laws was reflected in the variety of ways that the laws were enforced, civil as well as criminal. Criminal prosecutions were by no means uncommon. To give only one example, as political scientist Julie Novkov has recently shown, the state of Alabama prosecuted 343 people for the so-called crime of "miscegenation" between 1883 and 1938. In other states, prosecutions for interracial marriage operated in tandem with arrests for illicit sex (that is, because interracial couples were forbidden to marry, they were subject to prosecution under fornication and adultery laws). Throughout the South, the legal practice of enforcing miscegenation laws was shadowed by the vicious, extra-legal, practice of lynching.

The Role of Marriage License Clerks

It's worth emphasizing that miscegenation laws were also enforced--probably even more effectively--through civil law. Many an interracial couple managed to avoid attracting the attention of local police only to find their marriages challenged in other court proceedings--in divorce and annulment cases, for example, in pension disputes, and especially, and repeatedly, in inheritance cases. And the civil provisions of miscegenation laws were significant in another respect, too. In the early twentieth century, when marriage licensing served as a kind of public health surveillance system, marriage license clerks were, in effect, assigned responsibility for serving as the gatekeepers of white supremacy, and they wielded this power with considerable effect. Long after most public officials had discarded the blatantly racist justifications originally used to enact miscegenation laws, county clerks continued to refuse marriage licenses to interracial couples, claiming that they were merely carrying out the requirements of laws they were obliged to obey whether they wanted to or not.

Putting an end to the regime of miscegenation law was a long and difficult process. Between 1913 and 1927, the NAACP took the first step by fighting off a rash of attempts to enact miscegenation laws in northeastern states. In the 1930s, a few especially bold couples took the next step by bringing marriage license officials to court in an attempt to challenge the racial classifications of miscegenation laws. These challenges failed, but the fact that the suits were brought at all showed the gradual erosion of the notion that interracial sex and marriage were "unnatural." During World War II, when the social dislocations common in wartime led to interracial marriages at home and abroad, the NAACP, sometimes with the help of the Red Cross, tried an indirect approach, helping individual couples evade the miscegenation laws of their home states by directing them to marriage license officials in Northern states.

The Beginning of the End

The first significant courtroom victories didn't appear, though, until civil rights groups began to support, strategize, and finance direct challenges to the constitutionality of miscegenation laws. The first group to do this was the Catholic Interracial Council of Los Angeles, a small but remarkably effective pressure group founded in 1946, which argued that miscegenation laws were a violation of the constitutional guarantee of religious freedom. In the 1950s, the ACLU began to bring test cases, and the Japanese American Citizens League argued for the repeal of miscegenation laws in several western states. Both groups marshaled all the arguments they could find. They insisted that scientists no longer believed that the differences between the races were either "natural" or significant. They maintained that interracial sex and marriage were perfectly natural, perhaps even especially tempting. They argued that the only thing miscegenation laws really accomplished was to label otherwise long-term, committed relationships as illicit sex rather than marriage. Finally, building on the arguments the NAACP's Legal Defense Fund was making in its famous campaign against school segregation, they argued that the equal application rationale defied common sense. Surely, they insisted, miscegenation laws were a blatant violation of the Fourteenth Amendment's guarantee of equal protection.

In 1948, the Supreme Court of California took a giant step toward ending the regime of miscegenation law when it broke an sixty-five year string of post-Reconstruction judicial precedents and declared California's miscegenation law unconstitutional. Speaking for a deeply divided court, Justice Roger Traynor flatly rejected the shopworn claim that miscegenation laws applied "equally" to all races. "A member of any of these races," Traynor explained, "may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable." "Human beings," he continued, "are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains." "The right to marry," Traynor insisted, "is the right of individuals, not of racial groups." Nineteen years later, in 1967, in the case of Loving v. Virginia, the United States Supreme Court agreed, this time in a unanimous decision written by Chief Justice Earl Warren. "There can be no doubt," Warren wrote, "that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

The Loving decision spelled the formal end of America's three-century-long history of miscegenation laws, though opponents of interracial marriage didn't give up overnight. Alabama, for example, waited until the year 2000 to remove the miscegenation provision from its state constitution. By and large, however, Americans adjusted remarkably quickly to the new judicial consensus that interracial marriage, like marriage itself, was, as Earl Warren had insisted in Loving, "a basic civil right." In the 1980s, when I first started studying the history of miscegenation law, it often seemed as if no one wanted to remember a part of American history that now appeared to be little more than an embarrassment.

Gay Marriage

Historians tend to be uncomfortable making direct comparisons between the present and the past, and I'm no exception to that rule. It is important to remember that there are real differences in the case of gay marriage and so- called mixed marriages. The situation of a lesbian or gay couple in 2004 is not the same as that of an interracial couple in the 1930s, when miscegenation laws carried criminal penalties, when whites were nearly unanimous in their condemnation of interracial marriage, and when the specter of lynching hovered over discussions of interracial sex. The federal government is a much bigger player in the fight over same-sex marriage than it ever was in the case of miscegenation law; in the case of interracial marriage, there was no federal equivalent to the Defense of Marriage Act.

Supporters of same-sex marriage face formidable obstacles, but in large part because of the successes of twentieth century opponents of miscegenation law, they have also found support that interracial couples in the 1930s would have envied--from legal experts on the constitution, from county clerks in Oregon who recently decided that rather than discriminate on the basis of sex, they would refuse to issue any marriage licenses at all (to opposite-sex or same-sex couples), and even from the justices of the Supreme Judicial Court of Massachusetts, who cited the Loving case repeatedly in their Goodridge decision. If the campaign for same-sex marriage succeeds (and I hope, very much, that it does), it will be not only because of the efforts of lesbian and gay activists but because of the civil rights advocates (black, white, Asian American and American Indian) who spent so much of the twentieth century working to put an end to American's three-century tradition of miscegenation laws.