Marriage, Love and Loving:The Evolution of Interracial Marriage Laws Through the U.S. Supreme Court

On January 29, 1883, the U.S. Supreme Court unanimously ruled in Pace v. Alabama that a harsher fornication penalty specified for interracial couples did not violate the Equal Protection Clause of the Fourteenth Amendment. Justice Stephen Johnson Field wrote, “Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offence designated and not against the person of any particular color or race.”[1] While Pace did not explicitly deal with interracial marriage, this interpretation of the Equal Protection Clause was enough to project the court’s view that the laws prohibiting interracial marriage were justified under the Constitution as well. In fact, it would more than 80 years after Pace for interracial marriages to be fully recognized by the U.S. Supreme Court. Examining this history of interracial marriage laws, I argue that the decisions of the U.S. Supreme Court have largely been anchored by public opinion, contrary to the common perception of the judiciary as a body independent of the popular will.

The origin of anti-miscegenation laws dates back to the colonial period, when they were considered a necessary adjunct to slavery in the South and a means of segregating the two races in the North.[2] After the abolishment of slavery and the ratification of the Civil Rights Act, anti-miscegenation laws survived and became even more salient, as twenty states either enacted such laws or increased the punishments for existing bans in the aftermath of the Civil War.[3] During this post-Civil War era, courts relied on a variety of rhetorical appeals, especially to Nature, in order to justify their rulings in favor of anti-miscegenation laws. For example, the court opinions in interracial marriage cases often quoted a Pennsylvania trial judge who had stated: “The natural separation of the races is…an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature.”[4] By framing the issue as specifically “unnatural”, judges could effectively analogize interracial marriage to more obvious crimes against nature, such as polygamy and incest.

Judicial decisions against anti-miscegenation laws only started to appear in the mid-20th century, when race relations in the U.S. finally began to move in a progressive direction. For instance, in 1948, the Supreme Court of California struck down the state’s ban on interracial marriage in 1948 through a 4-3 decision in Perez v. Sharp. And six years later came the famous Brown v. Board of Education, which overturned the doctrine of “separate but equal” and prohibited racial segregation of children in public schools. Anchoring this judicial progress were important social and demographic changes that served to pacify race relations in the country. One such factor was the migration of the black population from the South to the North, and within the South, from rural to urban areas. The migration allowed black Americans to access greater political power through suffrage, better education, more job opportunities and, consequently, an increased capacity to socially mobilize and protest.[5] At the same time, a growing migration to the South of northern whites, who were comparatively better educated and held more favorable racial attitudes, affected southern politics by the early 1950s.[6] In addition, the experience of war motivated the black populace to more assertively demand their civil rights. As the World Wars and the Cold War were all framed as fights for freedom and democracy, black veterans and citizens alike channeled their militancy to fight for those same principles at home.[7] One journalist noted, “The men who did not fear the trained veterans of Germany will hardly run from the lawless Ku Klux Klan.”[8]

Finally, in 1967, the U.S. Supreme Court unanimously struck down all anti-miscegenation laws through Loving v. Virginia. The legal rationale in Loving showcased three notable changes in jurisprudence since Pace. First, the Court explicitly rejected the argument that “equal application” of a statute was enough to justify racial classifications. The Court accepted a more intuitive and holistic interpretation of the Fourteenth Amendment which was that “the clear and central purpose of the Equal Protection Clause was to eliminate all official state sources of invidious racial discrimination.”[9] This approach allowed the Court to conclude that a ban on inter-racial marriage was obviously against the principle of equal protection. Second, the Court pushed back against the idea that the regulation of marriage was within the states’ police power by stating that racial classifications were subject to the “most rigid scrutiny.”[10] Redefining the bounds of police power in this way was important because it allowed the Court to assert its federal authority over the conservative states of the South. This marked a notable shift from the Supreme Court’s stance in the Slaughter-House Cases and the Civil Rights Cases, where the Court opted for a very narrow construction of the Fourteenth Amendment. Lastly, the Court declared that the right of marriage constituted a “fundamental freedom” protected by the Due Process Clause.[11] By raising the legal status of marriage in this way, the Court signaled its strong conviction in overturning Pace.

This history suggests that the dominant interpretation of the Constitution is generally guided by the popular will. At the time of Pace, the deep internalization of white supremacy by the majority of Americans made interracial marriages unfathomable in court. A small number of cases that ruled against anti-miscegenation laws were swiftly ignored and overshadowed by those that ruled in favor.[12] It was only after sweeping changes in American public opinion regarding race relations that courts began to shift their understanding of the Equal Protection Clause, as shown in Loving. All in all, the voluntarist perspective that has emerged from this paper carries a double meaning. On one hand, it serves as a grim reminder that the Constitution and the goodwill of judges cannot be relied upon to create justice and equality on one’s behalf. But on the flip side, it also provides a hopeful message, as this means that the legal system can never be a permanent obstacle against positive social change if people are willing to fight for it.

[1] Pace v. Alabama, 106 U.S. 583 (1882).

[2] Pascoe, What Comes Naturally, 27.

[3] Menchaca, Culture Dynamics 20, 295.

[4] Pascoe, What Comes Naturally, 70-71.

[5] Klarman, Brown v. Board of Education, 23-25.

[6] Ibid., 32.

[7] Wynn, The Afro-American and the Second World War, 45.

[8] Gavins, The South Atlantic Quarterly 79, 270-271.

[9] Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967).

[10] Ibid.

[11] Ibid.

[12] See Burns v. State, 48 Ala. 195, 197 (1872).