Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation
By Peggy Pascoe
Ms. Pascoe is Associate Professor and Beekman Chair of Northwest and Pacific History at the University of Oregon. She is completing a book on the significance of miscegenation law in United States history.
We are in the midst of an attempt to ground a category of discrimination in the fundamental social bedrock of marriage law. I would argue that it is virtually impossible to understand the current debate over same-sex marriage without first understanding the history of American miscegenation laws and the long legal fight against them, if only because both supporters and opponents of same-sex marriage come to this debate, knowing or unknowingly, wielding rhetorical tools forged during the history of miscegenation law.
The arguments white supremacists used to justify for miscegenation laws--that interracial marriages were contrary to God's will or somehow unnatural--are echoed today by the most conservative opponents of same-sex marriage. And supporters of same-sex marriage base their cases on the equal protection clause of the Fourteenth Amendment, echoing the position the U.S. Supreme Court took when it declared miscegenation laws unconstitutional in the case of Loving v. Virginia. Both sides confront the structures of marriage law exclusion that were also forged during the history of miscegenation, including, as I show below, the legal maneuvering over the seemingly minor bureaucratic practice of issuing marriage licenses.
Here, for example, is the declaration that the Supreme Court of Virginia used to invalidate a marriage between a black man and a white woman in 1878:
The purity of public morals," the court declared, "the moral and physical development of both races….require that they should be kept distinct and separate… that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.
Continuing on in the article...
During the late 19th century, this judicial consensus laid the basis for an ominous expansion in the number, range, and severity of miscegenation laws. In Southern states, lawmakers enacted new and tougher laws forbidding interracial marriages. Seven states put miscegenation provisions in their state constitutions as well as in their regular law codes, and most raised criminal penalties to felony level. In Florida, for example, the penalty for interracial marriage was a maximum of 10 years in prison; in Alabama, 2-7 years. Meanwhile, western states set off in a new direction by expanding the racial coverage of the laws. A dozen states passed laws prohibiting whites from marrying American Indians; a dozen more targeted Asian Americans; nine targeted Filipinos. Some states went even further. Arizona, for example, prohibited whites from marrying "Hindus" and my own state of Oregon prohibited whites from marrying Native Hawaiians, or Kanakas. Courts responded by expanding the racial coverage of the equal application claim, too. Thus the Oregon Supreme Court declared that Oregon's miscegenation law did not discriminate (in this case, against Indians) because, as the judge explained, it ""applied alike to all persons, either white, negroes, Chinese, Kanaka, or Indians."
The rest of this fascinating article is here.
