Interracial Marriage and the Law

WHEN a reporter asked former President Harry S. Truman if interracial marriage — miscegenation — would become widespread in the United States, Mr. Truman said, “I hope not; I don’t believe in it.” Then Mr. Truman asked the reporter that hackneyed question often spouted at anyone advocating racial integration, “Would you want your daughter to marry a Negro?” The reporter responded that he wanted his daughter to marry the man she loved whoever he might be. “Well, she won’t love someone who isn’t her color,” the former President continued, and, as if he had not said enough, added that racial intermarriage ran counter to the teachings of the Bible.

The question of miscegenation can make a man like Truman, whose past support of integration in other respects is not open to question, appear unthinking if not bigoted. The fact of interracial marriage can cause a young Radcliffe-educated “liberal” to refuse to attend the wedding of her only brother, or a civilized, intelligent judge to disown and never again speak to his daughter. How many persons are repelled or at least disconcerted at the mere sight of a Negro-white couple? Perhaps their number tells us how far we are from achieving an integrated society.

If usually tolerant and rational persons can react this way, it is not surprising that many experts consider the fear of miscegenation the strongest reason for the desire of whites to keep the Negro permanently segregated. Next in importance in the “white man’s rank order of discrimination,” according to Gunnar Myrdal in his classic study, An American Dilemma, are other social conventions, the use of public facilities, political franchise, legal equality, and employment. On the other hand, the social and legal barriers to miscegenation rank at the bottom of the Negro’s list of grievances; quite naturally, he is more concerned with obtaining a job, decent living accommodations, and an education than with marrying “your daughter.” A recent Ford Foundation study of more than seven hundred Negro families in Chicago concluded: “There is no evidence of a desire for miscegenation, or even interest in promoting it, except among a tiny minority.”

Even though the Negro has finally attained equality under the law in most areas of American life, a Negro and a white still cannot marry in nineteen states having antimiscegenation statutes — mostly Southern and “border” states, but also including Indiana and Wyoming. No other civilized country has such laws except the Union of South Africa.

The United States Supreme Court has never ruled on the constitutionality of these statutes. In 1954, a few months after its historic decision prohibiting segregation in public schools, the Court refused to review the case of Linnie Jackson, a Negro woman who had been convicted under the Alabama miscegenation statute. Later, in 1956, the Court again avoided the issue, dismissing an appeal in a miscegenation case from Virginia. This dismissal was termed “wholly without basis in law" by a leading authority on constitutional law, Professor Herbert Wechsler of the Columbia Law School, because there was no appropriate legal reason for avoiding the decision.

In December, 1964, the Court upset the conviction of Connie Hoffman, a white woman, and Dewey McLaughlin, a Spanish-speaking merchant seaman from British Honduras. They had violated a Florida criminal law punishing extramarital cohabitation only if the offending couple were a Negro and a white person. The Court invalidated this statute as a denial of equal protection of the law guaranteed by the Fourteenth Amendment but refused to express “any views about [Florida’s] prohibition of interracial marriage.”

The Court may again be confronted with this question in a case instituted by a white construction worker and his part-Negro wife, Richard and Mildred Loving. They are seeking to have the Virginia miscegenation law declared unconstitutional so that they and their three children may reside in the state from which they have been banished. The Lovings have no connection with the civil rights movement and are not represented by attorneys of a Negro civil rights organization. Both had spent all their lives in Caroline County, Virginia, south of Fredericksburg. They were married in Washington, D.C., in 1958 and returned to Virginia. Five weeks later, they were charged with the crime of marrying each other, and because of this crime were convicted and sentenced to one year in prison. But Virginia County Circuit Judge Leon M. Bazlie suspended the sentences and provided instead that the Lovings leave Virginia “at once and do not return together or at the same time” for twenty-live years.

Should the Supreme Court avoid deciding this question because Negroes as a group are not concerned with it and because a decision of unconstitutionality might harm the civil rights movement? Before concluding that such a decision ought to be avoided if possible, or alternatively, how the question ought to be decided, we should consider the history and content of the miscegenation laws.

THE use of laws to ban marriages between persons of different races developed primarily in this country as an outgrowth peculiar to our institution of slavery. Neither the common law of England nor its statutes provide precedents for America’s miscegenation laws.

A Maryland statute of 1661 is generally considered the first miscegenation law in America, even though it did not prohibit interracial marriage and was motivated not by a theory of racial superiority, but by economic considerations. Socioeconomic conditions in the colonial period encouraged racial mingling. There was a severe shortage of Negro women in the colonies, and to a lesser extent, of white men of the same social class as the white female indentured servants. These indentured servants and Negro slaves, who often worked together in the fields and lived near each other in similar tenant huts, intermixed and intermarried. By the general custom of the time, a child of such a marriage would be a freeman because lie acquired the status of his mother. “And forasmuch as divers freeborn English women . . . do intermarry with negro slaves” by which “a great damage doth befall the master of such negroes,” the Maryland statute was passed to stop such marriages by making the female miscegenator a slave for the lifetime of her husband and all children of such marriages “slaves as their fathers were.”

According to some historians, after this law was passed, plantation owners encouraged or forced white women, usually indentured servants, to marry Negroes in order to increase the number of slaves. Lord Baltimore, shocked by this practice, had the law changed in 1681 to penalize any master encouraging an interracial marriage and to make such women and their issue free. Masters stopped encouraging these marriages, but they still occurred. And the children of the interracial couples were the financial burden of the masters during their minority because they were the legal children of male slaves. Such children were, however, freed upon reaching maturity. New laws became necessary to compel the servant girls to reimburse the masters for the cost of supporting these children. These laws did not achieve their purpose, and so, finally, all Negro-white marriages were prohibited.

In 1691, Virginia passed a law prohibiting miscegenation to prevent “spurious issue.” Any white person marrying a Negro was to be banished from Virginia forever. Considering the banishment of the Lovings in 1959, Virginia’s policy has not changed much since 1691.

Eventually, miscegenation laws were passed in nearly all the colonies, including Massachusetts in 1705, which also was one of the first states to repeal its law, in 1843. During the nineteenth century, as many as thirty-eight states prohibited interracial marriages. In the period surrounding the Civil War, nine states repealed their statutes. But through the years, Southern states made their laws harsher, Georgia and Virginia going so far as to require all citizens to register and identify their “race” although never establishing a practical means for enforcing the requirement. By 1951, there remained in effect twenty-nine miscegenation statutes. Ten states since 1951 have repealed their statutes. Of these, most were Western states, such as South Dakota (1957), Colorado (1957), Nevada (1959), Nebraska (1963), and Utah (1963), acting at least partially in response to the Negro social revolution.

All nineteen states with miscegenation laws prohibit Negro-white marriages. Other “races” which have been included in the various laws are Mongolians, Chinese, Japanese, Africans, Malayans, American Indians, Asiatic Indians, West Indians, mulattoes, Ethiopians, Hindus, Koreans, mestizos, and half-breeds. The laws border on burlesque. The Arizona law, repealed in 1962, at one time so defined a mulatto that he could not marry anyone, even another mulatto; then it was changed so that a mulatto could marry an Indian but could not marry a Negro, a Caucasian, or another mulatto.

WHO is a Negro under such laws? There is no uniform definition, so it is difficult to know. The different definitions create racial chameleons. One can be Negro in Georgia because he had a onehalf Negro great-grandmother, and by crossing the border into Florida, become a white because Florida makes him a Negro only if he had a full Negro great-grandmother. The most common definition uses an unscientific percentage-of-blood test usually classifying a Negro as “any person of one-eighth or more Negro blood.” If a blood test is to be used and one-eighth Negro blood, whatever that means, makes you Negro, why does not one-eighth white blood make you white? Alabama, Arkansas, Georgia, and Virginia make anyone a Negro who has any ascertainable trace of Negro blood. The Delaware, Kentucky, Louisiana, West Virginia, and Wyoming laws provide no definition of a Negro, and Tennessee has two conflicting definitions. Oklahoma and Texas prohibit marriages between whites and Africans or descendants of Africans without defining an African.

It should not be surprising that in the usual case a jury may decide that a person is a Negro from his appearance — a test authorized by statute in Missouri. Neither the statutes nor science provides a method to determine whether a person is one eighth Negro or one of the other statutory formulas of fractionalized racial membership. Terms such as “octaroons,” “quadroons,” and “half-breeds” are misleading except in a fictional or social sense. Genes are not transmitted in predetermined or culturally labeled quantities as the draftsmen of these statutes thought. Detailed genealogies might be used to try to make the statutory racial calculus workable. But even where genealogies are available, they may be unreliable or insufficiently informative on the racial composition of the great-grandparent whose blood allegedly makes the accused a Negro. After all, from one third to three fourths of U.S. Negroes have some Caucasian ancestry.

In short, the statutory definitions of Negro are sometimes contradictory, often nonexistent, and usually a combination of legal fiction and genetic nonsense nearly impossible to apply as a practical matter. None of the statutory definitions seems sufficiently precise to meet the constitutional requirement of due process which nullifies a criminal statute that is so vague that men of common intelligence must guess at its meaning and differ about its application.

And the penalties under these statutes can be quite severe — ten years imprisonment in Florida or North Carolina. Georgia, South Carolina, and other states impose criminal penalties upon anyone issuing a license to a miscegenetic couple or performing their marriage ceremony. Virginia levies a fine on anyone performing such a marriage ceremony “of which the informer shall have one half.” Because these laws make the proscribed marriages void, a spouse may be prevented from inheriting from his or her mate by other heirs who prove the forbidden interracial nature of the marriage; spouses have even lost the right to workmen’s compensation benefits otherwise payable. In many states, children of such marriages are declared illegitimate and are thereby prevented from inheriting under intestacy laws.

Mississippi, not surpassed in its crusade to maintain segregation, has a unique law supplementing its ban on interracial marriage, making a crime the publication for “general information, arguments or suggestions in favor of social equality or of intermarriage between whites and Negroes,” and punishing the violator by imprisonment or fine or both. This law could be invoked against me for writing this article, or the Atlantic Monthly for printing it.

The rule voiding miscegenetic marriages creates another disturbing problem. A mixed couple legally marries in a state where their marriage is valid, and later, quite innocently, enters a state with a miscegenation statute. This couple would be subject to criminal prosecution for miscegenation, fornication, or cohabitation in the state which will not recognize the validity of their marriage even though it was valid where celebrated. Delaware, Louisiana, Mississippi, Tennessee, and Texas actually declare such marriages invalid by statute.

Is it not alarming to know that in 1965 the new U.S. congresswoman from Hawaii, who is of Japanese descent, and her Caucasian husband could be criminally prosecuted under Virginia law if they were to reside there while Congress is in session? These laws are completely contrary to the undeniable trend in this country to ensure Negroes equality under the law. They continue to exist even though the Fourteenth Amendment was intended to eliminate racial discrimination fostered by state legislation. Yet, surprisingly, fifteen state supreme courts and several lower federal tribunals have upheld these laws. Only the Alabama Supreme Court in 1872 (which reversed itself in 1877) and the California Supreme Court in 1948 have declared miscegenation statutes unconstitutional.

WHAT are the legal issues? How does a state justify making a marriage between two competent, consenting adults a crime solely because one is Negro and the other white?

Some decisions without any reasoning sanction the statutes simply by referring to “laws” of nature or of God which interdict amalgamation of the races. In an early decision, the Missouri Supreme Court approved a miscegenation law because of the “well authenticated fact” that the issue of miscegenetic marriages “cannot possibly have any progeny and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites. . . .” This “fact” is pure fiction.

Other courts have reasoned that these laws do not discriminate by race because whites and Negroes are treated equally in that both races are prevented from intermarrying. This so-called “equal application” theory is supported by reference to a now discredited 1883 decision by the U.S. Supreme Court affirming a conviction of a Negro man and white woman for fornication even though the penalty was more severe than for the commission of the same act by two whites or by two Negroes. But the decisive question is not whether different races, each considered as a group, are treated equally. Races do not marry, individuals do; and the Fourteenth Amendment protects the personal right of an individual to marry. When a Negro is denied the right, solely because he is a Negro, to marry a white woman who wishes to marry him, the law discriminates against him and denies him a fundamental right solely because of his race, just as it denies the same right to the white woman.

Defenders of miscegenation laws maintain that the right to marry is subject to regulation by the state, and that the state has the power to ban miscegenetic marriages in order to prevent the violence and tension that will result from their legalization. Even if violence were certain to occur, this fact would not justify the statutes. No court should accept the reasoning that race tension can be eradicated by perpetuating by law the irrational prejudices that cause the tension. This reasoning not only is circular but also suggests that local law officials are unwilling or unable to maintain order — clearly not a rational basis to support a law depriving persons of constitutional rights. In fact, racial violence is almost nonexistent in areas where miscegenation is common, as in Brazil and Hawaii.

Virginia’s highest court, in sustaining a miscegenation statute in 1955, emphasized the state’s legislative purpose “to preserve the racial integrity of its citizens” and to prevent the creation of “a mongrel breed of citizens.” Assuming racial purity to be a legitimate purpose, the only race kept “pure” is the Caucasian, because these laws do not prohibit, for example, Negroes from marrying Mongolians. If racial purity is a desirable goal, then why are only Caucasians protected, and why should a “pure Negro” be allowed to marry a person who is seven eighths Caucasian and only one eighth Negro? This occurs not from a lack of logic or from ignorance, but because these laws are designed to preserve the purity of the majority Caucasian race — which in itself is one aspect of their larger, unexpressed goal of preserving what many think of as our “white American culture.”

Of course, the maintenance of racial purity is a meretricious basis for these laws. There is no evidence to support the existence of so-called “pure” races. Even the idea of a pure race has been termed a subterfuge to cloak ignorance of the phenomenon of racial variation. Race mixture has occurred extensively throughout history.

Often courts have accepted, either explicitly or implicitly, two erroneous assumptions in order to find a rational basis for the laws: (1) the white race will be harmed by intermixing because of its innate superiority over the Negro race and (2) the progeny of Negro-white marriages are inferior.

There is no scientific evidence to sustain the assumption that the white race is innately superior to the Negro race. One can still find “studies,” such as those by Carleton Putnam in 1961 and W. C. George in 1962 (commissioned by the Alabama legislature), to support the theory of an inferior race. Most serious students of anthropology do not even consider this question a present problem for research, agreeing that the races of the world are essentially equal in native ability and capacity for civilization and that group differences are for the most part cultural and environmental, not hereditary.

As for the progeny of racial intermixing, there is not a single anthropologist teaching at a major university in the United States who subscribes to the theory that Negro-white matings cause biologically deleterious results. On the contrary, some conclude that because of a certain hybrid vigor, interracial marriage may be desirable and the offspring superior, citing the Hawaiian population, among others, to support this view.

In addition to their “scientific” arguments, defenders of the laws maintain that a state has an obligation to protect both the couples and their children from the psychological harm of social adjustments necessitated by miscegenation. Upholding the Louisiana miscegenation law in 1959, that state’s supreme court stressed, without citing factual or other authority, that a state could prohibit miscegenetic marriages to protect the children of such marriages from “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” (The quoted language used by the Louisiana court, with, I think, a touch of sarcasm, was taken from the 1954 U.S. Supreme Court decision prohibiting segregation in public schools.)

Even if one assumes there are findings of fact to support the legislature’s judgment that miscegenation will cause social harm, must the U.S. Supreme Court bow to its judgment? The Court, consistent with its appropriate function in our political system, has developed a salutary presumption in favor of the constitutionality of state legislation. But if a law discriminates solely on the basis of race, then the Court considers the law constitutionally suspect and requires the state to justify the racial classification by some overriding legislative purpose.

There may yet be racial classifications which are constitutional, such as the use of different mortality tables for whites and Negroes or the keeping of racially segregated public records for statistical purposes. Nevertheless, the guarantee of equal protection of the laws must mean at the very least that there can be no valid legislative purpose for a state law which denies two competent, consenting adults the right to marry because of the color of their skins or the imagined racial composition of their blood. No legal scholar of note considers these laws constitutional nor thinks that a declaration of their unconstitutionality will require a new interpretation of the meaning of the Fourteenth Amendment.

TODAY interracial marriage is opposed because of social considerations by the majority of both Negroes and whites. Even those who approve in principle would find it difficult to advise their sons or daughters to enter into such a marriage knowing the unavoidable social problems which confront an interracial couple.

However, the number of interracial marriages does seem to be increasing. Andrew D. Weinberger, a New York lawyer who has studied miscegenation, estimates that there are one million such couples in the country, including a large number of light-skinned Negroes who pass for white and whose marriages — estimated at 810,000 — are not generally known as mixed marriages. He estimates known mixed marriages at 190,000. Neither their number nor the personal reasons for these interracial marriages may be significant. It may be significant that many leading Negroes in public life are partners in mixed marriages, including Edward W. Brooke, Republican Attorney General of Massachusetts, the highest Negro public officeholder in the United States, and James Farmer, national director of CORE. More mixed marriages will occur as integrated education spreads, and generally, these laws will be no obstacle. For example, after the disclosure of the marriage of Charlayne Hunter, the first Negro girl to enter and graduate from the University of Georgia, to a white Southerner and fellow student, they left Georgia and now reside in New York City.

Although an argument can be made that the Supreme Court would make a serious error if it now struck down these laws, it misstates the question to ask whether a decision should be deferred because the issue is incendiary to some whites and insignificant to most Negroes. In their apparent lack of concern about the existence of these laws, Negro spokesmen may underestimate both their symbolic meaning and their psychological force in the states which have such laws. Consider the efforts in Alabama to remove Garth Williams’ book for children, The Rabbits’ Wedding, from the shelves of the public libraries because the picture of the two little rabbits who “were wed and lived together happily in the big forest; eating dandelions” indicated that one was white and the other black. White racists point to these laws to support their appeal to the ultimate superstition fostering racial prejudice — the myth that Negroes are innately inferior to whites — and to demonstrate that even the Supreme Court (by its silence) still deems the Negro inferior in his right to enter into the most private and personal of relationships. There are no laws more symbolic of the Negro’s relegation to second-class citizenship. The fact that legislation cannot end prejudice does not mean that laws which foster it should continue to exist.

The elaborate legal structure of segregation has virtually collapsed with the exception of the miscegenation laws. Whether or not the Supreme Court was wise to avoid this question in 1954, it should now invalidate these laws. A free society cannot tolerate legalized racial prejudice, unsupported by reason or morals and capable of causing incalculable hurt to those designated inferior by law.