Mixed Race Studies

Blood Will Tell: Scientific Racism and the Legal Prohibition Against Miscegenation

Michigan Journal of Race & Law
University of Michigan Law School
Volume 5, Issue 2 (Spring 2000)
pages 560-609

Keith Edward Sealing, Dean of Students
Widener Law School, Widener University

Laws banning miscegenation endured in the colonies and the United States for more than 300 years. When the Supreme Court declared all such laws unconstitutional in Loving v. Virginia in 1967, sixteen such statutes and constitutional provisions were still in effect. Scientific racism determined a hierarchy within the White race that placed the Teutonic at the top, the Anglo-Saxon as the heir to the Teuton, and the American as the current leading branch of that line. Prior to the Darwinian revolution, two competing scientific theories, monogenism and polygenism, were applied to justify miscegenation statutes. The “monogenists” believed that all men descended from a single ancestor and were of the same species. This theory comported with the Bible and the story of Ham, as interpreted literally by the fundamentalists. The “polygenists” saw Blacks as a separate and inferior species descended from a different “Adam,” and, thus, saw slavery as qualitatively no different from the ownership of a horse, and miscegenation as approaching bestiality. These beliefs and attitudes endured well into the Twentieth Century, supported after 1900 by the eugenics movement. This article focuses on anti-miscegenation statutes as applied to former slaves and others of African descent, particularly in the South. This article first examines the miscegenation paradigm in terms of a seven-point conceptual framework that not merely allowed but practically demanded anti-miscegenation laws, then looks at the legal arguments state courts used to justify the constitutionality of such laws through 1967. Next, it analyzes the Biblical argument, which in its own right justified miscegenation, but also had a major influence on the development of the three major strands of scientific racism: monogenism, polygenism and Darwinian theory. It then probes the concept upon which the entire edifice is constructed—race—and discusses the continuing vitality of this construct. Next, this article turns to the major strands of scientific racism and briefly develops more modern theories that continued the racist tradition well into the Twentieth Century. The article then looks at the effects of scientific racism on the thoughts and actions of the founding fathers and the Reconstruction-era Congress before turning to the long line of state cases upholding miscegenation statutes, in part by relying on scientific racism. Finally, it discusses the cases that questioned the constitutionality of anti-miscegenation statutes, Perez v. Lippold and Loving v. Virginia.

Read the entire article here.

Tell the Court I Love My Wife: Race, Marriage, and Law: An American History

Palgrave Macmillan
2002
336 pages
6 1/8 x 9 1/4 inches, 16-page b/w photo insert
ISBN: 978-1-4039-6408-3, ISBN10: 1-4039-6408-4

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

The first in-depth history of miscegenation law in the United States, this book illustrates in vivid detail how states, communities, and the courts have defined and regulated mixed-race marriage from the colonial period to the present. Combining a storyteller’s detail with a historian’s analysis, Peter Wallenstein brings the sagas of Richard and Mildred Loving and countless other interracial couples before them to light in this harrowing history of how individual states had the power to regulate one of the most private aspects of life: marriage.

Table of Contents

• Introduction: “That’s No Good Here”
• Part I. Abominable Mixture and Spurious Issue
  • Sex, Marriage, Race, and Freedom in the Early Chesapeake
  • Indian Foremothers and Freedom Suits in Revolutionary Virginia
  • From the Chesapeake Colonies to the State of California
  • Race, Marriage, and the Crisis of the Union
• Part II. Equal Protection of the Laws
  • Post-Civil War Alabama
  • Reconstruction and the Law of Interracial Marriage
  • Accommodating the Law of Freedom of the Law of Race
  • Interracial Marriage and the Federal Courts, 1857-1917
  • Interlude: Polygamy, Incest, Fornication, Cohabitation – and Interracial Marriage
• Part III. Problem of the Color Line
  • Drawing and Redrawing the Color Line
  • Boundaries – Race and Place in the Law of Marriage
  • Racial Identiy and Family Property
  • Miscegenation Laws, the NAACP, and the Federal Courts, 1941-1963
• Part IV. A Breakthrough Case in California
  • Contesting the Antimiscegenation Regime – the 1960s
  • Virginia vesus the Lovings – and the Lovings versus Virginia
  • America after Loving v. Virginia
• Epilogue: The Color of Love after Loving
  • Appendices
  • Permanent Repeal of State Miscegenation Laws, 1780-1967
  • Intermarriage in Nazi Germany and Apartheid South Africa
  • Indentity and Authority: An Interfaith Couple in Israel
  • Transsexuals, Gender Identity, and the Law of Marriage

Deciding on Doctrine: Anti-Miscegenation Statutes and the Development of Equal Protection Analysis

Virginia Law Review
Number 95, Issue 3 (May 2009)
pages 627-665

Rebecca Schoff
University of Virginia School of Law

In 1967, the Justices of the Supreme Court of the United States were in complete agreement that the statutory scheme before them in Loving v. Virginia, which criminalized interracial marriage, should be invalidated. They did not, however, agree on which legal doctrines justified the invalidation. Eight Justices signed on to an opinion that carefully hedged the question with arguments related to both the equal protection and the due process clauses. Justice Potter Stewart authored a terse concurring opinion asserting that there could be no valid state law “which makes the criminality of an act depend upon the race of the actor.” Although no other member of the Court was willing to sign on to this concurrence, it gave voice to a doctrine that had been a central argument of civil rights litigation, articulated as early as Justice [John Marshall] Harlan’s famed dissent in Plessy v. Ferguson.

This Note will explore why the Warren Court chose the path it did to invalidate anti-miscegenation laws. More generally, it will analyze the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: assuming that Justices are in agreement as to which party should prevail, what factors, legal and non-legal, can influence the Court’s preference for one doctrine over another? In Loving, the decision to reject Justice Stewart’s rationale had far-reaching consequences. Had the Court followed Justice Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. It might be argued that the Court was simply seeking the narrowest grounds on which to decide the case and that Justice Stewart’s reasoning was simply too broad. Loving’s now-controversial place as a precedent supporting substantive due process analysis in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated, by Justice Stewart’s approach. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction be-tween equal protection, due process, and fundamental rights. Ultimately, this Note will argue that the Warren Court showed a preference for a less rule-like approach to equal protection analysis, in part because the conditions surrounding desegregation exacer-bated the difficulty of analyzing the scope of rules. Dissecting the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to under-stand how and why the Court resolves such problems in particular ways…

Read the entire article here.

The American Melting Pot? Miscegenation Laws in the United States

Organization of American Historians Magazine of History
Volume 15, Number 4, Summer 2001
pages 80-84

Bárbara C. Cruz, Associate Professor of Social Science Education
University of South Florida, Tampa

Michael J. Berson, Associate Professor of Social Science Education
University of South Florida

People of mixed heritage have been citizens of the United States since the country’s inception. Indeed, one scholar has insisted that “American History would be unrecognizable without ethnic intermarriage”. But while Americans proudly describe their nation as a “melting pot,” history shows that social convention and legal statutes have been less than tolerant of miscegenation, or “race mixing.” For students and teachers of history, the topic can provide useful context for a myriad of historical and contemporary issues.

Laws prohibiting miscegenation in the United States date back as early as 1661 and were common in many states until 1967. That year, the Supreme Court ruled on the issue in Loving v. Virginia, concluding that Virginia’s miscegenation laws were unconstitutional. In this article, we look at the history of miscegenation in the United States, some motivations for anti-miscegenation policy, the landmark decision of Loving v. Virginia, and some applications of the topic for the social studies classroom…

Read or purchase the article here.

The Loving opinion treated race as a monolithic and meaningful category, even though the realities of the case itself subverted this account. The litigation arose in Caroline County, Virginia, a place called the “passing capital of America” because so many light-skinned blacks were mistaken for whites. In addition, the Jeters made clear that “Richard [wasn’t] the first white person in our family,” suggesting that Mildred’s own racial background was complex.

Rachel F. Moran, “Loving and the Legacy of Unintended Consequences,” (Wisconsin Law Review, Issue 2, 2007), 241-281. https://www.researchgate.net/publication/265218010_Loving_and_the_Legacy_of_Unintended_Consequences.

Almighty God Created the Races: Christianity, Interracial Marriage, and American Law

University of North Carolina Press
December 2009
288 pages
6.125 x 9.25, notes, bibl., index
Cloth ISBN: 978-0-8078-3318-6
Paper ISBN: 978-1-4696-0727-6

Fay Botham, Adjunct Professor of Religious Studies
University of Iowa

In this fascinating cultural history of interracial marriage and its legal regulation in the United States, Fay Botham argues that religion–specifically, Protestant and Catholic beliefs about marriage and race–had a significant effect on legal decisions concerning miscegenation and marriage in the century following the Civil War.

Botham argues that divergent Catholic and Protestant theologies of marriage and race, reinforced by regional differences between the West and the South, shaped the two pivotal cases that frame this volume, the 1948 California Supreme Court case of Perez v. Lippold (which successfully challenged California’s antimiscegenation statutes on the grounds of religious freedom) and the 1967 U.S. Supreme Court case Loving v. Virginia (which declared legal bans on interracial marriage unconstitutional). Botham contends that the white southern Protestant notion that God “dispersed” the races, as opposed to the American Catholic emphasis on human unity and common origins, points to ways that religion influenced the course of litigation and illuminates the religious bases for Christian racist and antiracist movements.

The Blurring of the Lines: Children and Bans on Interrracial Unions and Same-Sex Marriages

Fordham Law Review
May 2008
Volume 76, Number 6
pages 2733-2770

Carlos A. Ball, Professor of Law and Judge Frederick Lacey Scholar
Rutgers University School of Law, Newark

When Richard Loving and Mildred Jeter drove from their hometown of Central Point, Virginia, to Washington, D.C., on June 2, 1958, in order to get married, Mildred was several months pregnant Later that year—a few weeks before the couple pled guilty to having violated Virginia’s antimiscegenation law—Mildred gave birth to a baby girl. Richard and Mildred had two more children, a son born in 1959 and a second daughter born a year after that.

The legal commentary on Loving v. Virginia usually does not discuss the fact that the couple had children. In some ways, this is not surprising given that their status as parents was not directly relevant to either their violation of the Virginia statute, or to their subsequent constitutional challenge to that law. Concerns about the creation of interracial children, however, were one of the primary reasons why antimiscegenation laws were first enacted in colonial America and why they were later adopted and retained by many states. It is not possible, in other words, to understand fully the historical roots and purposes of antimiscegenation laws without an assessment of the role that concerns related to interracial children played in their enactment and enforcement.

The offspring of interracial unions were threatening to whites primarily because they blurred the lines between what many of them understood to be a naturally superior white race and a naturally inferior black race. As long as there was a clear distinction between the two racial categories—in other words, as long as the two categories could be thought to be mutually exclusive—then the hierarchical racial regimes represented first by slavery, and later by legal segregation, could be more effectively defended. The existence of interracial children destabilized and threatened the understanding of racial groups as essentialized categories that existed prior to, and independent of, human norms and understandings. To put it differently, interracial children showed that racial categories, seemingly distinct and immutable, were instead highly malleable. Therefore, from a white supremacy perspective, it was important to try to deter the creation of interracial children as much as possible, and the ban on interracial marriage was a crucial means to attaining that goal.

Although it is possible to disagree on how much progress we have made as a society in de-essentializing race, it is (or it should be) clear that an essentialized and static understanding of race is both descriptively and normatively inconsistent with the multicultural American society in which we live. In fact, it would seem that we have made more progress in deessentializing race than we have in de-essentializing sex/gender. One of the best examples of this difference in progress is that while we no longer, as a legal matter, think of the intersection of race and marriage in essentialized ways, legal arguments against same-sex marriage are still very much grounded in an essentialized (and binary) understanding of sex/gender.

The conservative critique of same-sex marriage is premised on the idea that men and women are different in essential and complementary ways and that these differences justify the denial of marriage to same-sex couples.  One of the most important of these differences relate to the raising of children. The reasoning—which is found in the arguments of conservative commentators, in the briefs of states defending same-sex marriage bans, and in some of the judicial opinions upholding those bans—is that there is something unique to women as mothers and something (separately) unique to men as fathers that makes different-sex couples able to parent in certain valuable ways that same-sex couples cannot.

These arguments continue to resonate legally and politically because our laws and culture continue to think about sex/gender in essentialized and binary ways. In fact, one of the reasons why same-sex marriage is so threatening to so many is that the raising of children by same-sex couples blurs the boundaries of seemingly preexisting and static sex/gender categories in the same way that the progeny of interracial unions blur seemingly preexisting and static racial categories…

Read the entire article here.

Interracialism: Black-White Intermarriage in American History, Literature, and Law

Oxford University Press
September 2000
560 pages
Paperback ISBN13: 9780195128574
Paperback ISBN10: 0195128575
Hardback ISBN13: 9780195128567
Hardback ISBN10: 0195128567

Edited by:

Werner Sollors, Henry B. and Anne M. Cabot Professor of English and African-American Studies
Harvard University

Interracialism, or marriage between members of different races, has formed, torn apart, defined and divided our nation since its earliest history. This collection explores the primary texts of interracialism as a means of addressing core issues in our racial identity. Ranging from Hannah Arendt to George Schuyler and from Pace v. Alabama to Loving v. Virginia, it provides extraordinary resources for faculty and students in English, American and Ethnic Studies as well as for general readers interested in race relations. By bringing together a selection of historically significant documents and of the best essays and scholarship on the subject of “miscegenation,” interracialism demonstrates that notions of race can be fruitfully approached from the vantage point of the denial of interracialism that typically informs racial ideologies.

Revisiting The Hollow Hope: The U.S. Supreme Court and the Repeal of Interracial Marriage Restrictions

Paper presented at the annual meeting of the American Sociological Association
Atlanta Hilton Hotel
Atlanta, Georgia
2003-08-13

21 pages

Nancy Martin

This paper outlines a research proposal for the analysis of the state-by-state repeal of interracial marriage restrictions, and particularly the role of the U.S. Supreme Court’s 1967 decision in this process. Rosenberg (1991) argues that the Supreme Court actions are largely inconsequential to progress and social reform. This proposal develops the repeal of interracial marriage restrictions as an important test case for Rosenberg’s theory.  What happened at the state-level in the years leading up to and after the Supreme Court’s 1967 decision declaring interracial marriage prohibitions unconstitutional?  Was this decision a key moment in ensuring the repeal of these laws in Southern states? Alternatively, was Loving v. Virginia (1967) nothing more than a punctuation mark in the already advancing progress of state-level reforms?  This project has the potential to make three important contributions: update our knowledge on the history of state-by-state repeal of interracial marriage laws; confirm, modify or extend Rosenberg’s thesis from The Hollow Hope; and provide valuable insights for contemporary activists who continue to work for social reforms.

Read the entire paper here.

Nation and Miscegenation: Comparing Anti-Miscegenation Regulations in North America

Canadian Political Science Association
80th Annual Conference
2008-06-04 through 2008-06-06

Paper Dated: 2008-05

Debra Thompson, Assistant Professor of Political Science
Ohio University

Nearly forty years after Loving v. Virginia, the historical prohibition of interracial relationships in the United States exemplifies the state’s regulation of intimate life.  Anti-miscegenation laws were not simply about the prevention interracial sexual relations; rather, the discourse also concerned the transgression of gendered/raced social boundaries, the exposure of raced/gendered sexualities, the threat of non-white access to white capital, and the potential of mixed-race progeny and the predicament of racial categorization.  While a number of legal and historical studies consider the emergence and existence of anti-miscegenation laws in the United States (Williamson, 1980; Davis, 1991;) comparative studies on this subject in political science are virtually non-existent.  However, the Canadian state also enacted antimiscegenation laws in the same era throughout various Indian Act regimes and informally regulated other white/non-white sexual relations.  This paper will explore the similarities and differences among discourses of anti-miscegenation in North America, seeking to demonstrate that: a) the decision to enact formal legislation can be partially attributed to a number of factors, including the demographic size of the non-white population and the threat posed by mixed-race progeny to the dominant group’s access to power, privilege and resources; b) contrary to the popular belief of the so-called ‘tolerance’ of Canadians, racist sentiments towards non-whites existed during the same era that anti-miscegenation laws were created and implemented in the United States; and c) the differences in anti-miscegenation regulation in Canada and the United States are strongly linked to discourses of white masculine nationalism.

Read the entire paper here.