When did interracial marriage become legal in the United States

Political Cartoon of Thomas Jefferson and Sally Hemmings

In the United States, anti-miscegenation laws existed from the colonial era through the 20th century, and they are bookended by two Virginia pieces of legislation: Virginia’s 1691 anti-miscegenation law, and Loving v. Virginia (1967).

Colonial Era

In 1691, the colonial assembly of Virginia passed a law that was designed to prevent “that abominable mixture and spurious issue” of “negroes, mulattoes, and Indians intermarrying with English, or other white women.” Any English or white woman who intermarried was banished from the colony. If she had a “bastard child by any negro or mulatto,” she had to pay fifteen pounds sterling to the church wardens of the parish within a month of giving birth. If she did not have fifteen pounds sterling, she was essentially indentured for five years until the debt had been paid.

Legislating interracial relationships suggested that they were illegitimate. Furthermore, legislating, for example, interracial fornication as a crime different from fornication, suggested that the interracial element made any crime more deviant. In North Carolina, where historian Kirsten Fischer did her study of sexual slander cases, the most degrading insults against white women contained graphic descriptions of sex with black men or animals. In describing interracial sexual acts as especially perverse, slanderers implied that interracial sex transgressed a natural boundary. As a result, sexual slander cases in which race played a prominent role bolstered the racial hierarchy at the same time it reinforced sexual constraints on white women.

Nevertheless, interracial relations occurred—sometimes of free will, and in many cases in the absence of it. Ironically, Thomas Jefferson, in his Notes on the State of Virginia wrote: “amalgamation with the other colour produces a degradation to which no lover of his country, no lover of excellence in the human character, can innocently consent.” This statement is ironic, because historical evidence suggests that Jefferson fathered several children with his slave, Sally Hemmings.

19th Century

While laws against intermarriage in the East and South reflected the black-white binary, states in the west developed much more complicated and exclusive laws against intermarriage—representative of the uniquely diverse societies they were encountering.

For example, Alabama, Kentucky, Louisiana, and Mississippi all explicitly forbade the intermarriage between whites and blacks while Arizona’s anti-miscegenation law prohibited the intermarriage between whites and anyone who was either “Filipino, Hindu, or black,” California’s specifically prohibited intermarriage between whites and blacks or Asians; while Oregon’s prohibited the intermarriage between whites and blacks, Native Americans, Asians, and even Native Hawaiians.

Most laws against intermarriage—or miscegenation laws—were passed in the middle of the 19th century and by the end of the Civil War, and by 1865 all western and Southern States had them in place.

During Reconstruction, anti-miscegenation laws were briefly repealed in the South, but were reinstated after 1877.

Anti-miscegenation laws were repeatedly upheld in court. The most notable case regarding the topic was the U.S. Supreme Court case Pace v. Alabama (1883). Section 4189 of the code of Alabama prohibited whites and blacks from “living with each other in adultery or fornication.” It carried a steeper fine that Section 4184 of the code of Alabama that prohibited “any man and woman” from living together in adultery or fornication. In this case, Tony Pace, a black man, and Mary Cox, a white women, were indicted for violating section 4189 of the code. They claimed that it violated their Fourteenth Amendment rights because the law penalized them more heavily for being an interracial couple.

Instead, the court ruled that there was no violation. Rather, the punishment was relative to the crime. Interracial fornication was a different, and more severe, crime than fornication; furthermore, it was not a violation of equal protection since the white party and the black party were both penalized equally.

20th Century

Individual states were able to mobilize the Pace ruling in order to defend their anti-miscegenation laws through the first half of the 20th century. It was not until the California case Perez v. Sharp (1948) did individual states recognize their anti-miscegenation laws were at risk.

The Perez case was unique because the plaintiffs argued that California’s anti-miscegenation law violated their freedom of religion. Andrea Perez, a Mexican American woman, and Sylvester Davis, a black man, were both Catholics and wanted to marry. However, under California law, Perez was legally considered white, and therefore unable to marry a black man. Arguing that marriage was a holy sacrament, and since the Catholic church did not say anything about interracial relations, Perez and Davis were able to successfully challenge California’s anti-miscegenation law.

The gap between California striking down its anti-miscegenation law and the Loving case which declared them unconstitutional can be explained by caution.

Groups like the NAACP were reluctant to jump on the wagon to fight anti-miscegenation laws because they worried it might affect the successes they had been having with school desegregation—most notably the Brown decision.

In 1965, Albert C. Persons wrote Sex and Civil Rights to suggest that all civil rights activists were sexual deviants, that others were only lured into participating in activism by being promised sex. His evidence was spurious and contradictory, but it also gave credibility to the rumors that linked civil rights with concerns about white supremacy and barriers against interracial sex and marriage. It wasn’t until Loving v. Virginia (1967) a case involving a white man and black woman, that the U.S. Supreme Court declared state laws that prohibited interracial marriage unconstitutional. Mildred Jeter and Richard Loving were a young couple who lived in Virginia. Because of Virginia’s revised Racial Integrity Act (1924), they were unable to marry in their home state. Nevertheless, in 1958, the couple went to Washington, D.C. to get married since D.C. did not have a law against interracial marriage at that time. They were married in D.C. and returned to Virginia.

One night, police raided their home and arrested them. The couple was charged with “unlawful cohabitation” and had two options: jail or banishment for 25 years.

The couple decided to move to D.C. where they remained for 5 years. Mildred wrote to Robert F. Kennedy who referred her to the ACLU. She missed her family and wanted to be able to return to Virginia. and after discussion, the couple decided to return to Virginia. The couple was arrested again, but they were prepared this time. ACLU volunteer attorneys, Bernard Cohen and Philip Hirschkop filed a motion that said that the Racial Integrity Act violated the Lovings’ Fourteenth Amendment rights. The case made it all the way to the US Supreme court and the court declared state laws prohibiting interracial marriage unconstitutional.

In its unanimous decision, the court declared 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 marry, a person of another race resides with the individual, and cannot be infringed by the State.”

Even though the U.S. Supreme Court declared anti-miscegenation laws unconstitutional, some states were slow to drop them, and some counties even refused to grant marriage licenses to interracial couples. It took approximately a decade for the implications of the Loving case to make their way through the United States. For all intents and purposes, it wasn’t until 2000 that Alabama actually removed its anti-miscegenation law from its books.

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