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Civil Rites:
Arguments against same-sex marriage
mirror those that kept the races apart

by Deb Price
© 1997, Deb Price

First comes love, then comes marriage, then comes a prison sentence. Throughout most of our nation’s history, interracial couples in most states broke the law if they dared to marry.

Judges, long seeing the supposed crime of interracial marriage as a threat to the natural order of things, reacted with stern sermonettes that today give us a window back to a human rights controversy that in many ways parallels the current legal battle for same-sex marriage.

“The amalgamation of the races is not only unnatural but is always productive of deplorable results. Our daily observations show us that the offspring of these unnatural connections are generally sick and effeminate,” a Georgia judge declared in 1869, forbidding a white Frenchman and a black woman to marry.

“Such connections never elevate the inferior race to the position of the superior, but they bring down the superior to that of the inferior. They are productive of evil, and evil only, without any corresponding good,” he added.

Taking racism even further, a Missouri judge handed down an 1883 ruling based on the preposterous notion that human racial groups are so different biologically that, like horses and donkeys, certain combinations produce sterile offspring: “It is stated as a well authenticated fact that if the (children) of a black man and white woman and a white man and a black woman intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites.”

Such lectures didn’t end with the 19th century, though. In 1959, Judge Leon Bazile sentenced Richard and Mildred Loving for evading Virginia’s law against white-black marriages by marrying in Washington, D.C. “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents,” Bazile declared. “And but for the interference with His arrangement there would be no cause for such marriages.”

The how-dare-you rulings against interracial couples that were handed down by judges confident that God shared their prejudices have a familiar ring. That’s because they’re so similar to justifications concocted to try to keep gay couples from taking the step from love to marriage. Members of Congress who last summer railed against gay couples before passing the anti-gay Defense of Marriage Act sounded as if their speech writer were the 19th century judge who denounced “alliances so unnatural that God and nature seem to forbid them.”

Yet the most vocal foes of same-sex marriage act as if this country has never before struggled with the question of which couples should have the right to wed. They’d have us think there is something obvious, sacred, constitutional and timeless about drawing the marriage eligibility line exactly where it is today.

In fact, though, for nearly two centuries the idea that allowing interracial couples to marry is right — both in the eyes of God and in the precepts of the U.S. Constitution — was not obvious to a majority of Americans. It wasn’t until 1967 that the Supreme Court, after repeatedly ducking the issue, declared laws against interracial marriage unconstitutional.

Once the Supreme Court ruled, public support for criminal laws against racially mixed marriages dropped sharply — from 48 percent in 1965 to 35 percent in 1970 (Gallup).

(In 1958 — the first time interracial marriage polling was conducted — opposition was far greater than it is to same-sex marriage today. Ninety-four percent of whites disapproved of interracial marriages (Gallup). By contrast, in November 1996, just 56 percent of adults opposed same-sex marriage in a Human Rights Campaign poll.)

In the century leading up to that historic ruling, which was triggered by the Lovings’ challenge of their Virginia conviction, the arguments against interracial marriage foreshadowed those used by opponents of gay marriage: God objects. Children will suffer. The majority will be tarnished. (Virginia’s law banning whites from marrying nonwhites was introduced in 1924 as “A bill to preserve the integrity of the white race,” a title not unlike that of the 1996 Defense of Marriage Act.) A state may refuse to recognize any marriage that offends it. Most states and most people are offended by such unions. And the 14th Amendment’s guarantee of “equal protection” doesn’t apply to them.

When the U.S. Supreme Court finally faced the question of interracial marriage squarely, a unanimous opinion by Chief Justice Earl Warren ruled that Virginia’s “white supremacy” marriage law and similar interracial marriage prohibitions in 15 other states did indeed violate the 14th Amendment. Decreeing that marriage is a “fundamental” civil right, the court told the nation that “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”

Before that decision, only California’s top court — in a 4-to-3 decision issued in 1948 — had ruled racial restrictions on marriage unconstitutional. Other courts, state and federal, had handed down an unbroken string of rulings upholding race-based marriage laws.

Now as we wait for Hawaii’s top court to make the Aloha state the first to legalize same-sex marriage and for the state-by-state battle for recognition that’s sure to follow, we can take heart from the parallels to the successful struggle to make interracial marriage legal nationwide. Those parallels are strong, numerous and encouraging.

They’re also instructive. We’ve much to learn from the way that earlier marriage-rights battle was eventually won — especially from the reluctant but ultimately decisive role played by the Supreme Court in making good on our Constitution’s promise of equal protection for all.

The Supreme Court lacks the power to enforce its own decisions — no jails, no battalions, no purse strings. Its power resides solely in getting the nation to respect its rulings as the law of the land. So justices tend to be wary of getting so far out of step with the public on a contentious issue that they jeopardize their moral authority.

Internal court documents indicate that the court became nervous about interracial marriage cases in 1954, immediately after its breakthrough Brown v. Board of Education school desegregation decision. Segregationists claimed that the court’s real goal wasn’t integrated classrooms but the “mongrelization of the white race.”

Three civil rights justices — Chief Justice Earl Warren, Justice William O. Douglas and Justice Hugo Black — nevertheless wanted to tackle racist marriage laws in 1954, justices’ notes show. But from then until 1967, a majority refused to jeopardize enforcement of the court’s desegregation decisions by taking cases that would allow them to overturn interracial marriage bans. Three times the court ducked the issue.

Interracial marriage hadn’t suddenly become a hot button issue in the 1950s, though. Just as the prospect of gay marriage now sets off alarms among heterosexuals fearful of losing their favored status, interracial marriage long accentuated white fears of minority advancement.

Just as nominally gay-friendly President Clinton signed the Defense of Marriage Act — limiting federal marriage rights to mixed-sex couples — earlier politicians felt compelled to emphasize that there were limits to their own advocacy of racial progress.

Abraham Lincoln said that he “a thousand times agreed” the races should not intermarry. “I do not understand that because I do not want a Negro woman for a slave I must necessarily want her for a wife,” he declared.

A century later, former president Harry Truman, who had integrated the armed forces, was asked in 1963 whether interracial marriage would become popular. He replied, “I hope not. … Would you want your daughter to marry a Negro?”

Forty-one states once outlawed some or all interracial marriages. (Michigan’s ban was in effect until 1883.) In their obsession to maintain the imagined purity of the white race, lawmakers came up with bizarrely intricate racial definitions.

For example, anyone whose ancestry was white except for one great, great grandparent was legally white in Florida but black in neighboring Georgia. Mixed-race Arizonans were once barred from marrying anyone, even another mixed-race person.

The primary social function of interracial marriage bans was to put a government stamp of approval on the notion that the majority is somehow superior, biologically and morally. Yet repealing racist marriage laws never ranked as a priority for the NAACP. In 1944, Thurgood Marshall, then the NAACP’s lead attorney, urged the American Civil Liberties Union (ACLU) to avoid marriage challenges. Other issues were considered more pressing, other goals more achievable.

Likewise, national gay rights groups long viewed marriage lawsuits as unwinable and potentially counterproductive.

So the task of going to court to challenge the legitimacy of prejudice-based marriage limits has fallen to individual couples. That’s true today in Hawaii, where same-sex marriage rights will likely first be gained because three couples refused to quietly accept being turned away for licenses in 1990. It was true in race cases as well.

Sentenced to two years in prison, Tony Pace and Mary Cox, who lived together but couldn’t legally marry, challenged the Alabama laws that punished interracial sex more severely than same-race sex. In 1883, the U.S. Supreme Court upheld the laws, saying it saw no racial discrimination because the couple’s “offense” was not the same as intra-racial sex. Lower courts then used Pace v. Alabama to uphold interracial marriage bans.

Although the Supreme Court’s notorious 1896 Plessy v. Ferguson decision in favor of “separate but equal” public accommodations was not a marriage case, that ruling flatly stated, “Laws forbidding the intermarriage of the two races…have been universally recognized as within the police power of the state.”

A half-century later, Linnie Jackson, a black woman serving two years for marrying a white man, challenged the assumption that states may constitutionally restrict the right to marry based on race.

Her state of Alabama countered that every state has the right to “impose such restrictions upon (marriage) as the laws of God and the laws of propriety, morality and social order demand.”

That was November 1954, only six months after the Supreme Court’s explosive Brown v. Board desegregation decision. Twenty-eight of the 48 states still had anti-miscegenation laws. The court’s young law clerks saw the importance of the case but urged caution.

“If students cannot be segregated on the basis of race, what of spouses? … Perhaps someday the court will have to (rule) on these questions. But review at the present time could only seriously aggravate the tensions stimulated by last term’s segregation decision,” Chief Justice Warren’s clerk advised.

A clerk to Justice Harold Burton similarly warned that “because of the political repercussions of the segregation decision, it would not be feasible politically to take this case at this time.”

Except for unusual cases that the Supreme Court is required to take, a case is turned away unless four justices vote in private conference to hear it. Only three voted to take Lennie Jackson’s challenge.

The next year, a slightly different marriage case confronted the court. Ham Say Naim, a Chinese national, was challenging Virginia’s anti-miscegenation law. His white wife of 15 months, Ruby Elaine Naim, had relied on that law to get an annulment. In upholding the annulment, Virginia’s highest court said it saw nothing in the U.S. Constitution prohibiting a state from regulating marriage “so that it shall not have a mongrel breed of citizens.”

Court rules required the Supreme Court to take it. But the justices avoided an immediate decision by ordering it back to the trial judge for more evidence. Virginia’s top court refused to send it down, though, and the case was soon back before the justices.

The court had no graceful or legitimate way to duck a real decision then. As a clerk to Justice Douglas noted, “It will begin to look obvious if the case is not taken that the court is trying to run away from its obligation to decide the case.” Yet the court did duck, deciding in a 1956 private conference by a one-vote margin to announce that the case was “devoid of a properly presented federal question.”

The court ducked yet again in 1964 when it knocked down a Florida law making it a crime for an interracial couple to live together. The court stated it wasn’t passing judgment on interracial marriage bans.

By the time the Lovings’ case arrived at the court, the political climate had changed dramatically from 1954. Congress had outlawed race bias in jobs, housing and public accommodations. Less than one-third of states — 16 — still had anti-miscegenation laws. (In Florida, Mississippi and North Carolina, interracial marriage could result in a 10-year prison sentence.)

The court finally was ready to act. The justices voted unanimously in private conference to hear the Lovings’ case.

By then Mildred and Richard Loving had three children.

The Lovings’ attorneys stressed the “outrageous civil effects” of laws against interracial marriage: Children don’t have two legal parents. Automatic inheritance rights are lost. All marriage-based federal benefits are denied — Social Security spousal benefits, for example, and special immigration rights. (Gay partners are similarly denied all marriage rights and benefits today, although no state law makes it a crime for couples to try to wed. Such an attempt in the military, however, can lead to criminal prosecution and discharge.)

“Whether or not this court has been wise to avoid this issue in the past,” the Lovings’ attorneys argued, “the time has come to strike down these laws; they are legalized racial prejudice, unsupported by reason or morals, and should not exist in a good society.”

On June 12, 1967, the U.S. Supreme Court unanimously struck down those laws.

Only five years later, the court brushed aside its first and to-date only same-sex marriage challenge, saying the desire of two Minnesota men to marry did not raise “a substantial federal question.”

But our nation’s rich history tells us that it is not so easy to brush aside the rightful dreams of our people. If Hawaii’s top court approves gay marriage as expected, it will raise key federal questions demanding action by the Supreme Court. Even if the malicious Hawaii legislature manages to undermine the court’s authority and blocks gay marriage, a federal challenge would open up. Similarly, the Defense of Marriage Act — which proposes to pick and choose which legal marriages will be recognized — will ultimately wind up before the justices.

Just as with interracial marriage, we can expect to temporarily have a checkerboard of laws where gay American’s rights change when they cross state lines. But if the past is any guide, time is on our side. However, we’ll have to wait until a majority of justices see same-sex marriage as not only constitutionally correct but politically wise.

First comes love. Next will come marriage.

© 1997, Deb Price
c/o The Detroit News, 615 W. Lafayette, Detroit, MI 48226

Reprinted with permission of the Detroit News.
Originally published April 18, 1997.

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