Anti-Miscegenation Laws in US

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Duke University School of Law
Anti-Miscegenation Laws in the United States
Author(s): James R. Browning
Source: Duke Bar Journal, Vol. 1, No. 1 (Mar., 1951), pp. 26-41
Published by: Duke University School of Law
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ANTI-MISCEGENATION LAWS IN THE
UNITED STATES
The word
"miscegenation"
is not included in the
everyday
vocabulary
of a
large part
of our
citizenry,
but there are
nonetheless laws in
twenty-nine
states
prohibiting
misce-
genation.
Etymologically,
the term means
intermarriage
of
persons
of different
races;
when used in this
paper,
how-
ever,
the word has reference to
marriage
between whites
and non-whites.
Without
suggesting
an
opinion
on the
desirability
of anti-
miscegenation laws,
the writer
proposes
to sketch the
pro-
visions and effects of the
present
statutes on the
subject.
Various
questions
then arise: what is the
purpose
of such
statutes and how
effectively
are
they accomplishing
that
purpose? Also,
what are the
legal problems
created in
applying
these laws ?
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Status of
Foreign
Miscegenetic Marriages
State and Citation
Group
or Persons Prohibited Status of Status of
Penalties
From
Marrying
Whites
Marriage
Issue b
By Non-
By Residents c residents d
Alabama
(1947)x
Const. 1901 Art. 4
Negro
or Person with one
drop
of Void.
Felony
Void.
?102;
Ala. code 1940
?14-360. Negro
blood 2-7
years.
Arizona
(1949) Ariz. code anno 1939
Negro, Mongolian, Hindus,
or mem- I
?63-107,
108. bers of the
Malay
race. Null and Void.
Illegitimate
b
......--------------- Void.....
Arkansas
(1947)
code Title 55
??104, Negroes
or Mulattoes.
Illegal
and Misdemeanor. Void. Valid
105; 64-104; 55-110.
Void.
Colorado
(1950) Colo. St anno 1935,
Ch.
Negro
or Mulatto.
Absolutely
# Misdemeanor. 3 mo.-2 Valid. Valid.
107
??2, 3,
4. Void.
yrs. and/or $50-500
fine.
Delaware
(1935)
Del Rev.
code 1935,
Ch.
Negro
or Mulatto. Void
Legitimate.
Misdemeanor. *100 fine Void.
3485.
or 30
days.
Florida
(1949)
Const. Art. 16
?25; Comp 1/8
African or
Negro
blood.
Utterly
Null
Illegitimate. Up
to 10
yrs. imprison-
Void. Void. di
Gen Laws 1941
??741.11, 12;
1.101. and Void. ment and/or
#1000
fine.
Georgia (1947)
Ga. code
53-106, 312, a1 Utterly
Void.
Illegitimate Felony
Void.
9903; 53-214;
79-103.
Idaho
(1949)
Idaho code anno
??32-206, Mongolians, Negroes,
Mulattoes.
Illegal
and Void.
Legitimate
6 mo.
and/or
#300
fine. Valid. Valid.
x Laws in effect
through
date indicated.
b At common law issue of void marriages were held to be illegitimate,
a result indicated by *.
Where there is a
legitimation
statute that may not cover
miscegenous offspring,
the result will be indicated
by
#.
c Refers to case where residents of state
prohibiting miscegenation
leave
state, marry
in states
permitting miscegenation,
and then return to former residence.
d Refers to case where residents of another
state,
who have contracted a
miscegenetic marriage
valid by the laws of their
domicile,
enter state
prohibiting
such
marriages.
bl Semble, In re Walker's Estate,
5
Ariz.
70
(1896).
di Valid for
purposes
of
inheritance,
where the
parties
never lived in Florida.
a' Sec.
53-106.
Cf. 53-312
defining
"white" to mean no ascertainable trace of
Negro,
African,
West
Indian,
Asiatic
Indian,
Malayan,
Japanese,
or Chinese blood. No
person
whose
ancesters
registered
with state bureau of vital statistics as "colored" shall be deemed "white".
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;ls.
Status of
Foreign
Miscegenetic Marriages
State and
Citation
Group or
Persons
Prohibited Status of Status of
Penalties
From
Marrying
Whites
Marriage
Issue b
By
Residents c
residents
d
Indiana
(1949)
Burns Ind.
St. anno
1/8 Negro
blood.
Absolutely
Void
Legitimate Up
to 10
yrs. and/or up
Void. Valid.
??10-4222; 44-104, 105, 107, 205;
without
any
to $1000 fine.
44-209. legal proceed-
ings.
Kentucky (1949) Ky.
Rev. St.
??391.100;
1/4 Negro
blood. Prohibited and
Illegitimate
3-12 mo.
and/or
$500- Valid. Valid.
402.020, 040,
990. Void. $5000
fine..
Louisiana
(1949)
La. Rev. Civ. code c. Persons of color.
Intermarriage
of Null and
Void, Illegitimate Felony
Void. Void. d2
94;
Gen. St.
?2185; cr. code 1128-1130. Indians and colored
prohibited.
and of no effect.
Maryland (1948)
Md. code Art. 27
?445.
Persons of
Negro
descent to 3rd
genera-
Void. * 18
mo.-10
yrs.
tion inclusive.
Mississippi (1948) Const. Art. 14
?263; Negro, Mongolian,
or
person 1/8 Negro
Unlawful and
Up
to 10
yrs. and/or
Void. Void. ds
Miss. code 1942
?459; ??2339,
2002. or
Mongolian
blood. Void. 8500 fine.
Missouri
(1946)
Mo. Rev. St. 1939
??316, 1/8 Negro
or
Mongolian
blood. Prohibited. De-
# Up
to 2
yrs. and/or
$100
3361,
4651. clared abso- fine.
lutely
Void.
Montana
(1950)
Mont. Rev.
code
Chinese, Japanese, Negro,
or
person Utterly
Null
Legitimate
Misdemeanor. Void.
??48-106, 107, 108, 109, 113; 48-1103. of
Negro
blood or in
part Negro.
and Void.
Nebraska (1949)
Neb. Rev. St. 1943
1/8
or more
Negro, Japanese,
or Chi- Void.
Illegitimate Up
to 6 mo.
and/or
$100 Valid.
Valid.
??44-103;
42-328;
42-117. nese blood. fine.
Nevada
(1949) Comp. Laws
??10197,
Any person
of the
Ethiopan
or black Unlawful.
#
6 mo.
and/or
$500 fine.
10198,
10200.
race, Malay
or brown
race,
or Mon-
golian
or
yellow
race.
d'
Valid
for
purposes
of
inheritance,
where the
parties
never lived in Louisiana.
ds Valid for
purposes
of
inheritance,
where
parties
never lived in
Mississippi.
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z
H
Status of
Foreign
Miscegenetic Marriages
State and Citation Group or Persons Prohibited Status of Status of
Penalties
From
Marrying
Whites
Marriage
Issue b
S
R By Non-
By
Residents c
residents
d
............d
North Carolina
(1950) Const. Art. 14 Persons of
Negro
or Indian descent to Void. Infamous crime
Up
to Void. c' Valid.
?8
G.S.
53-3;
14-182. 3rd
generation
inclusive. a2 10
yrs. and/or
fine.
North Dakota
(1949)
N. D. Rev. code
1/8
or more
Negro
blood. Void.
# Up
to 10
yrs. and/or
Void. Valid.
1943
??14-0304, 0305,
0308.
$2000
fine.
Oklahoma
(1950)
Const. Art. 23
?11. Any person
of African descent. Indian- Unlawful and
Legitimate
b2
I
1 to 5 yrs.
and
up
to $500 Void.
Okla. St. anno
?43-12,
13.
Negro marriage prohibited. Prohibited. fine.
Oregon (1948)
Ore.
Comp.
Laws
??23- Negro, Chinese,
or
any person having
Absolutely
Null
Legitimate
3 mo. to 1
yr.
Valid.
1010;
63-102.
1/4
or more
Negro, Chinese,
or and Void.
Kanaka blood or more than
1/2
Indian blood.
South Carolina
(1948)
Const. Art.
3, Indians, Negroes, Mestizo,
or half-
Utterly
Null and
Up
to 1
yr. and/or
fine.
?33
code 1942
?8571. breed.
1/8 Negro
blood. Void and of
no effect.
South Dakota
(1950)
code 1939
??14.0106;
Members of the
African, Korean,
Ma- Null and Void
Legitimate Up
to 10
yrs. and/or
Valid. Valid.
14.9901;
14.0103.
layan,
or
Mongolian
races. from the be- $1000 fine.
ginning.
Tennessee
(1949) Const. Art. 11
?14 Negroes
or Mulattoes or
persons
de-
Null
and Void.
Illegitimate
1 to 5
yrs.
Void. Void.
code 1943
??8396,
8409. scended from a
Negro
to the 3rd
generation inclusive.
Texas
(1950)
Vern. Penal
??492,
493:
Any person of African descent to 3rd Null and Void.
#
2 to 5
yrs.
Void.
Vern. Civ. C
?4607. generation
inclusive.
Utah
(1949)
code anno 1939
??40-1-2; Negro, Mongolian, Malayan, Mulatto, Prohibited and
#
Misdemeanor. Valid. Valid.
101-4-10;
40-1-4.
Quadroon,
Octoroon. Void.
a2
Marriage
between
Negroes
and Cherokee
Indians
of Robeson
County prohibited.
c' But valid if the woman
only
is the
party leaving
the
state,
State v.
Ross,
76 N.C. 242
(1877).
b2
Semble,
In Re Estate of
Atkinson,
151 Okla. 294
(1931).
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C•3
0
t.4
Status of
Foreign
Miscegenetic Marriages
State and Citation
Group
or Persons Prohibited Status of Status of
Penalties
From
Marrying
Whites
Marriage
Issue b
Benatie
By
Non-
By Residents c residents d
Virginia (1950)
code 1950
??1-14; 20-54, Persons with
any
ascertainable trace
Absolutely
Void
1
to 5
yrs.
Void. Void.
d4
57,
58. of
Negro
blood. Whites can
only
without
any
marry whites, as decree, di-
vorce,
or other
legal proceed-
ing.
West
Virginia (1949)
W. Va. code anno
Negroes.
Void from time
Legitimate Up
to 0100 fine and 1
yr.
Void.
??4086, 4697,
4701. so
declared
by
decree of nul-
lity.
Wyoming (1948)
code
??50-108; 50-109,
Negroes,
Mulattoes, Mongolians, Illegal
and Void.
*
1
to 5
yrs. and/or
0100- Valid. Valid.
118. Malays. 01000 fine.
a3 Sec. 20-54 defines "white" to mean no trace whatsoever
of
non-Caucasian blood, except 1/16
or less American Indian blood.
d4
Cf. Tolar v. Oakwood Smokeless Coal
Corp.,
173 Va.
425,
4
S.
E. 2d
364 (1939).
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ANTI-MISCEGENATION LAWS IN THE U. S. 31
I. Provisions and Effects of Present Laws
The
preceding
chart
presents
a
panorama
of the
statutory
law of the
twenty-nine
states that have taken
steps
to
pre-
vent
miscegenation.
As one will
note,
the laws are about
as varied as
they
are
numerous; they
disclose
differing
defi-
nitions of those in the
prohibited class,
the
emphasis
as to
persons
in this class
significantly shifting
with the
geo-
graphical
location of the states. All these states
prohibit
Negro-white marriages.
Fourteen
states, chiefly
west of
the
Mississippi,
forbid
intermarriage
of white and
Mongol-
oid
persons.'
Three
states, Louisiana,
North
Carolina,
and
Oklahoma
prohibit Negro-Indian intermarriage.2
Four
states forbid Indian-white
marriages.3
Six states consider
racial
intermarriage
with such abhorrence that its
prohi-
bition is
provided
for in their
Constitutions.4
In contrast to the common law rule that issue of a void
marriage
are
illegitimate, many
states have statutes
legiti-
mating
such issue.
However,
some
legitimation
statutes have
been
interpreted
not to
apply
to children of
miscegenous
marriages; others,
as indicated on the
chart,
have not been
construed as to this
point. Although
the status of the issue
is uncertain in
many states,
the
marriages
themselves seem
generally
to be void ab initio and not
merely
voidable.
1 Arizona, Georgia, Idaho, Louisiana, Missouri, Montana, Nebraska,
Nevada, Oregon,
South
Dakota, Utah, Virginia,
and
Wyoming.
There
may
be some
question
as to
Georgia
and Louisiana. Some of the statutes
specify
the
particular Mongolians prohibited,
such as
Nebraska,
and
South Dakota.
Malay-white marriages prohibited in Arizona, Maryland, Nevada,
South
Dakota, Utah, Wyoming,
and
possibly Georgia
and Louisiana.
2
Regarding
the Oklahoma
statute, it is explained
that one motive
for
prohibiting Negro-Indian marriages,
was to
prevent Negroes
from
sharing
the wealth of those Indians who owned rich oil lands.
Schuy-
Zer,
Racial
Intermarriage
in the United
States,
16
(1929).
Regarding
the North Carolina
statute,
the statute is alleged
to be
connected with a
legend
that the Cherokee Indians of Robeson County
are descendants of the Croatan Indians
who,
as the
legend
has
it,
inter-
married with members of the Lost
Colony
of Sir Walter
Raleigh;
therefore,
these
present
Cherokees are
part white,
and
any Negro-
Indian
marriage
in this instance
would also be
Negro-white intermar-
riage. Stephenson,
Race Distinctions in American Law. 90
(1910).
3
North
Carolina, Oregon,
South
Carolina,
and
Virginia. Possibly
Georgia
and Louisiana.
4 Alabama, Florida, Mississippi,
North
Carolina,
South
Carolina,
and Tennessee.
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32 DUKE BAR JOURNAL
II.
Sociological Background
There is no
categorical explanation
for
anti-miscegena-
tion
legislation.
To
attempt
such
explanation
is
to become
enmeshed in one of the
many aspects
of the American social
milieu. The
inconsistency among
the statutes in the selec-
tion of the
minority groups
indicates the localization of
certain
prejudices
in this
country
and
collectively,
the stat-
utes
act as indicators for the animosities nurtured
by groups
in control in various states. On a national
level, however,
the
picture
is
incomplete.
The absence of
anti-miscegena-
tion statutes in some states should not be considered as
evidence that such
marriages
are
approved
there or that
there
is
a
popular
indifference to them.
Rather,
the lack of
such laws
frequently
reflects the fact that
Negroes
and
Orientals are a
negligible part
of the
population
in these
states,
and that
intermarriages
are so few that the
question
can be
ignored. "Moreover,
the absence of such
legislation
is a source of some
pride
and it
gives
a certain
feeling
of
self-righteousness
that is
luxuriously pleasing."5
The
passing
of the
frontier,
which
provided
one method
of
escape
for the
minority groups,
and the ever
increasing
occasion for social contact in our
present
mobile
society,
serve as
catalysts
to the
inter-group
reaction and increase
the awareness of the fact that some
groups
have not assim-
ilated
in certain areas. The
opportunity
of
assimilation,
which in the ultimate sense must include
amalgamation,
has
been extended to
Jewish,
Italian and other white
minorities;
5 Reuter,
Race
Mixture,
101
(1931).
At
page
103 the author states
that in recent
years
there have been
attempts
to
pass
laws
prohibiting
the
intermarriage
of
Negroes
and whites in
Wisconsin, Massachusetts,
Washington, Kansas, Minnesota, Iowa, Illinois, Michigan, Ohio,
Penn-
sylvania,
and New York.
"The lack of restrictive
legislation
on racial
intermarriage in
eighteen
states and the District of Columbia does not mean that
quasi-
legal
devises to frustrate those
marriages
are absent. In northern
states,
where there are no
intermarriage statutes, judges
often refuse
to issue licenses to
racially divergent couples. Likewise,
in the state
of
Washington,
the
county
auditor whose task it is to determine whether
or not the
mentality
of
applicants
for
marriage
licenses
is suitable,
often uses this
power
to
deny
licenses to
potential
racial intermar-
riage.
In at least one other
state,
New
Jersey,
mental tests have
also
been used to
prevent
racial
intermarriages." Barron, People
Who Inter-
marry,
56
(1946).
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ANTI-MISCEGENATION LAWS IN THE U. S. 33
but colored
groups-Black, Brown,
Yellow and to a lesser
extent Red-are considered
unassimilable,
and are denied
intermarriage
with whites.
The
underlying animosity
to colored minorities can be
partially
attributed to a desire in white
groups
to maintain
economic and social
advantages. Independent
of this de-
sire is a wish to avoid the
physical consequences
which are
thought
to flow from racial
inter-marriage. Thus,
as one
court
put
it in
upholding
the
constitutionality
of an anti-
miscegenation
statute:
"The
amalgamation
of the races is not
only
unnatural
but is always productive of deplorable
results."6
At times the statutes
depart
from
purely
social and economic
considerations. The
Georgia
statute includes within its
prohibition,
the
marriage
of whites with Asiatic Indians.
What
challenge
could this
minority
offer to the economic
and social
superiority
of
Georgia
whites?
Similarly,
the
Western states
prohibit Negro-white marriages.
Yet the
1940 census shows that the
Negroes
constitute less than one
per
cent of the
population
of
Montana,
North
Dakota,
South
Dakota, Wyoming, Nevada,
and
Oregon.
However useful
"color"
may
be as an instrument for
stratification,
what
role does it
play
where the "inferior caste" constitutes less
than one
per
cent of the
population
?
The
peculiarities
of inclusion or exclusion of various
racial
groups
in
anti-miscegenation
statutes seem due to
fortuitious historical events.
Among
such events
may
be
mentioned the
migration
into the state of
population groups
from
regions
in which intense racial attitudes are
dominant,
the rise to
power
of
political
leaders
holding
such
attitudes,
and a local
upsurge
of racial
feeling
due to dramatic inci-
dents of
inter-group
conflict in the
particular
state.
Considering
that over half of the states have
legislation
designed
to
prevent miscegenation,
it could
reasonably
be
supposed
that a rather formidable
problem
in that connec-
tion existed. Yet studies made of the extent of racial inter-
marriage
in the United States indicate that it is
very small;
1
Scott v.
State,
39 Ga.
321,
324
(1869).
Of similar
import,
Ford v.
State, 53 Ala. 150
(1875);
Hoover v.
State,
59 Ala. 57
(1877); Kennedy
v.
State,
76 N.C.
251
(1877);
State v.
Frasher,
3 Tex.
App.
262
(1877).
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34 DUKE BAR JOURNAL
of
necessity,
these studies must be made in states with no
prohibitions against
such
marriages.
The bulk of such
studies deal with
Negro-white intermarriages.
One of the
later studies of the
city
of Boston for the
years
1914-38
reveals that of all
marriages involving whites,
the
percent-
age
of
Negro-white
was
.13,
and for the same
period
there
were 276
Negro-white marriages,
which was 3.9
per
cent
of all
marriages involving
Negroes.7
A
study
of New
York,
exclusive of New York
City,
for the
years
1916-37 revealed
that there were 569
Negro-white marriages
which accounted
for 2.9
per
cent of all
marriages involving Negroes.8
Of
course, any study
in the field is not
completely reliable,
for
the definition of
"Negro" may vary
with the
study
con-
ducted.
One
interesting survey
reveals that the
tendency
to inter-
marry appears
to
vary according
to sex. Of
3,131
cases of
Negro
racial
intermarriage
in
twenty-two
American
cities,
approximately
four-fifths were of the
Negro
male-white
female
type."
From these statistics one can conclude that
the
Negro
male
racially
intermarries more
frequently
than
does the
Negro
female and that the converse is true with
whites.
According
to current
population figures,
the num-
ber of white females continues to exceed the number of
males,
a trend which
may
be accentuated further
by
war
casualties.
Thus, pressure
is
placed upon
the mass of un-
married white females to search further for
husbands,
a
factor which
may
induce
increasing
readiness
on the
part
of some to enter into
miscegenous
unions.
Conversely,
the
white male
may
feel less resentment toward a
miscegenous
marriage
which
only slightly
drains the vast reservoir of
marriageable
females. Still,
since
Negro
females also out-
number
Negro males,
the
Negro
man is not under
pressure
to
range
afield
seeking
a white mate. Whether these demo-
graphic
trends will cancel out or increase the
pressure
to-
ward
miscegenation
cannot be foretold.
In states where the social caste
feeling
is
especially strong
it is doubtful that statutes are needed to
prevent miscegena-
7 Klineberg,
Characteristics
of
the American
Negro, 277,
table
4,
(1944).
s
Ibid, 280,
table 7.
9 Barron, op cit.,
116-117.
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ANTI-MISCEGENATION LAWS IN THE U. S. 35
tion.
Probably
their chief function is to reenforce and
crystallize public sentiment,
which
may
differ from the
sentiments held
by particular
individuals.
Also,
the stat-
utes
may
act as a deterrent to
prevent
"colored"
persons
from
attempting
to
intermarry
with whites even
though
their
physical
characteristics would allow them to
pass
the
color
line;
the statutes remind them of the
possible painful
consequences
to self and
family
if their
heredity
is dis-
covered.
III. Conflict of Laws Problems
The
proximity
of states that do not interfere with racial
intermarriage
to those states that
do, presents
an interest-
ing
and
complicated
conflict of laws
question,
that has been
variously
resolved
by
the states
having
interdictions
against
such
marriages.'0 Suppose
residents of a state
forbidding
miscegenation journey
to another state
condoning it, marry,
and then return to their former home. In such
instances,
it
is
generally
held that the evasion will not bar a criminal
prosecution
for
illegal
cohabitation in the
domiciliary state,
nor will the
marriage
be valid for
any purpose
there."
Eighteen
of the states have statutes with
respect
to mar-
riage evasion;
of
these, three-Indiana, Virginia
and West
Virginia-require
a
special
intent to evade local law.12
Those states which allow their
anti-miscegenation
laws to
be evaded
by
one who has carfare to another state are
keep-
ing
nullities on the statute
books.13
10
"Although
as a
general rule, validity
of a
marriage
is determined
by
the law of the
place
where it was entered
into,
so that a
marriage
valid there is generally
to be
regarded
as valid
everywhere,
there are
recognized exceptions
to this
rule, principal among
which are
(1)
polygamous marriages,
and
(2) marriages
considered to be incestuous
by
the universal consent of Christendom. A third
exception
is some-
times
recognized
to that
general
rule in cases of
marriages
celebrated
in another state which are
contrary
to the
public policy
of the state as
embodied in a statute
prohibiting
such
marriages."
3 A.L.R.
2d,
241.
11 Georgia
v.
Tutty,
41 Fed. 753
(1890); Dupre
v.
Boulard,
10 La.
Ann. 411
(1885);
Babisso's
Succession,
119 La.
704,
44 So. 438
(1907);
State v.
Kennedy,
56 N.C. 251
(1897); Eggers
v.
Olson,
104 Okla.
297,
231 P. 483
(1924);
Baker v.
Carter,
180 Okla.
71,
56 P.2d 85
(1937).
12
Alabama, Arizona, Colorado, Delaware, Georgia, Idaho, Indiana,
Kentucky, Louisiana, Mississippi, Montana, Nebraska,
North
Dakota,
South
Dakota, Utah, Virginia,
West
Virginia, Wyoming.
1" Idaho, Kentucky, Wyoming, Oregon, Colorado,
and Utah.
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36 DUKE BAR JOURNAL
If a
miscegenous marriage
has been consummated
by
resi-
dents of a state where such
marriages
are
permitted,
what
is the
legal
effect if the
couple subsequently
moves to a state
forbidding
such
marriages? Clearly,
a state would be less
inclined to
give
effect to its
anti-miscegenation
statute in
this instance than in a case where there had
initially
been
an effort to evade the law.
By statute, Colorado, Idaho,
Kentucky,
Nebraska and
Wyoming
declare the
marriage
valid in such
cases;
North
Carolina
achieves the same result
by
decision. As the North Carolina Court
put
it:
"Our
laws
have no extra-territorial
operation,
and do
not
attempt
to
prohibit
the
marriage
in South Carolina
of blacks and whites
domiciled in that
state."'4
The North Carolina court
put
an
interesting
twist on the
last statement
by invoking
the traditional
rule
that a wife
takes the domicile of her husband.
Accordingly,
it was
held that where a white woman had left North Carolina to
marry
a
Negro
in a state where such
marriages
were
per-
mitted,
the
marriage
would be
recognized
in North
Carolina,
since the wife's
prior
residence in North Carolina was
super-
seded
by
her husband's domicile. Such a view
opens
the
door to
marriage
evasion in the
numerically
most
frequent
type
of racial
intermarriage,
that of a white woman and a
Negro man,
if the
Negro
is from a state not
forbidding
miscegenation.
Tennessee takes a
contrary stand.15 Apparently, any
marriage
between a
Negro
and a white
person, regardless
of whether the
parties
were
legally
domiciled and married
in a state
permitting miscegenation,
will not be
recognized
later in Tennessee.
Perhaps
this view
brings
Tennessee into
conflict with the Full Faith and Credit clause of the Con-
stitution,
for if the
parties
have never lived in
Tennessee,
no
public policy
of that state would seem to
justify
a refusal
to
recognize
the
marriage
for such
purposes
as descent of
property
in Tennessee. The result would
apparently hinge
on
whether,
for
purposes
of Full Faith and
Credit,
"mar-
riage"
is a
"public Act, record,
or
judicial proceeding."
14
State v.
Ross,
76 N.C.
242,
244
(1877).
15
State v.
Bell,
7 Baxt.
(Tenn.)
9
(1872).
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ANTI-MISCEGENATION LAWS IN THE U. S. 37
IV. Constitutional Law Problems
Prior to 1948
anti-miscegenation legislation
had received
judicial approval
on
every
encounter. Attacks on the valid-
ity
or
constitutionality
of the statutes were
successfully
parried by
the
courts.l6 However,
in
1948,
the California
court in the case of Perez v.
Lippold17
declared the California
anti-miscegenation
statute unconstitutional. The
question
of
validity having
been aroused from its constitutional slum-
ber,
the
query
arises as to whether these statutes could sur-
vive a determined attack in the United States
Supreme
Court.
One
point
of
vulnerability
was
vagueness. Sociologically,
the line between white and colored is in some instances not
clear-cut;
for
instance,
it was estimated as
early
as 1921
that almost
25,000 Negroes
crossed the color line each
year.'1
The California statute like that in a few other
western states failed to deal
explicitly
with these
persons
"6 Miscegenation
statutes held constitutional: Dodson v.
State,
61
Ark. 57
(1895);
Green v.
State,
58 Ala. 150
(1877);
Ford v.
State, supra;
Kirby
v.
Kirby,
24 Ariz. 9
(1932).
Held not to
impair
the
obligation
of contract
provision
of Art.
1,
Sec.
10 of the U. S. Constitution: In re
Hobbs,
12 Fed. Cas.
6,550 (1871);
Maynard
v.
Hill,
125 U.S. 190
(1887), holding
that
marriage
was not a
contract within the
meaning
of the
prohibition;
State v.
Tutty,
41 Fed.
753
(1890);
Dobson v.
State, supra.
Held not to violate the
equal protection
clause of the 14th Amend-
ment of the U.S. Constitution: Green v.
State, supra;
State v.
Gibson,
36 Ind. 389
(1890);
State v.
Jackson,
80 Mo. 175
(1880);
In
Re Paquet's
Estate,
101 Ore. 393
(1921);
Jackson v.
Denver,
190 Colo. 196
(1942).
Said the court in State v.
Jackson, supra.,
at
177,
"All of one's
rights
as a citizen of the United States will be found
guaranteed by
the Con-
stitution of the United States. If
any provision
of that instrument
confers
upon
a citizen the
right
to
marry anyone
who is
willing
to wed
him,
our attention has not been called to it."
-1
198 P. 2d 17
(1948).
A white woman and a
Negro
man were de-
nied a
marriage
license on the basis of Civ. Code Sec. 69 which
pro-
vided
"...
no license
may
be issued
authorizing
the
marriage
of a
white
person
with a
Negro, mulatto, Mongolian,
or member of the
Malay
race." Civ. Code Sec.
60
provided:
"All
marriages
of white
persons
with
Negroes, Mongolians,
members of the
Malay
race or mulattoes are
illegal
and void." No further
definition,
as to what
percentage
of blood
would render a
person
a member of the
prohibited class,
was
given.
18s Hart, Hornell,
Selective
Migration
As a Factor In Child
Welfare
in the United
States,
With
Special Reference
to
Iowa, University
of Iowa
Studies in Child
Welfare,
vol.
1,
First
Series,
1921. Commented on in
American Journal
of Sociology, LII, (July 1946),
18-22.
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38 DUKE BAR JOURNAL
changing
races in mid-stream. For this
reason,
it was
felt
to be
vague;
but this
argument
would
presumably
not
apply
to the more
specific provisions
of most of the other states.
A more involved matter is the
question
of
compatibility
with the
equal protection
clause of the United States Con-
stitution.
In the
past, relying
on the 1896 cases of
Plessy
v.
Ferguson,
the courts have refused to
recognize
that such
statutes violated the
equal protection
clause.19
They sug-
gested
that there was
equality
of
application
as to the two
races,
since whites could not
marry
outside their race nor
Negroes
outside their race. On the other
hand,
the Califor-
nia court in the Perez case treated
equality
of
application
not
according
to races but
according
to individuals. The
argument
was followed there that an
anti-miscegenation
law denies
equal protection
because
A,
a
Negro,
is forbidden
to
marry B,
a
white;
while
C,
a
white, may lawfully marry
B. It is said to be irrevelant that A can
marry
some other
Negro.
Efforts have been made to
justify
the
anti-miscegenation
statutes as measures
designed
to
protect public peace,
health
and welfare. For one
thing
these laws are said to
prevent
breaches of
peace
that
might
occur under the
impetus
of
incidents of racial
intermarriage.
Such an
argument,
how-
ever,
was
rejected by
the
Supreme
Court in Buchanan v. War-
I"
163 U.S. 537
(1896).
". . . there is no discrimination where the
law
applies equally
to whites and to
Negroes."
The
Plessy
formula
has since been the vehicle of the
anti-miscegenation
cause.
However,
there has been attenuation of the doctrine: The
housing
ordinance
cases,
Buchanan v.
Warley,
245 U.S. 69
(1917),
Harmon v.
Tyler,
273
U.S. 688
(1927), City
of Richmond v.
Deans,
281 U.S. 704
(1930).
These
cases decided that
using
race or color as a basis for
denying
a
person
equal enjoyment
of
property rights
was
discrimination,
and in violation
of the Fourteenth Amendment of the U. S. Constitution. More
recently,
Oyama
v.
California,
332 U.S. 633
(1948).
The 1948 case of
Shelly
v.
Kraemer,
68
Sup. Ct. 826
rejected
the
equality
of
application
doctrine
where
property rights
are
concerned,
"The
rights
created
by
the first
section of the Fourteenth Amendment
are, by
its
terms, guaranteed
to the individual. It
is, therefore,
no answer to these
petitioners
to
say
that the court
may
also be induced to
deny
white
persons rights
of own-
ership
and
occupancy
on the
grounds
of race or color.
Equal protection
of the laws is not achieved
through indiscriminate imposition
of in-
equalities."
In the education field the doctrine has been
rejected
where substantial
equality,
in
fact,
has not been achieved. Sweatt v.
Painter,
339 U.S. 629
(1950).
In the
transportation field,
Henderson v.
U.S.,
339 U.S. 816
(1950).
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ANTI-MISCEGENATION LAWS IN THE U. S. 39
ley
which dealt with the
validity
of
zoning
ordinances that
segregated according
to
race."0
Moreover,
to
accept
this
argument
would mean that a dominant
group
could
justify
any
discrimination
by threatening
to commit breaches of
the
peace
if the discrimination is removed.
The intimate
relationship
between the marital institution
and the basic welfare of the States has been relied
upon
to
justify
close
supervision by
it of the matrimonial ventures
of its domiciliaries. Without
speculating
as to the
physical
consequences
of racial
intermarriage,"2
the writer
suggests
that the
sociological
effects
upon
the
offspring
must be con-
sidered. It
may
well be
argued
that the
state,
as
parens
patriae,
has a
privilege
to bar
marriage
which would
produce
problem progeny.
To
apply
this
principle
one can consider
the situation of the child of a mixed
marriage.
If white and
Negro intermarry, any
children will nor-
mally
be shunned
by
other whites if the child's
parentage
is
known;
and the white
parent may
not be
fully accepted by
his child's colored
companions. Thus,
a
gap may develop
in
the home. More
important,
under the state
segregation
laws in
many
states the white
parent
will be barred
by
law
from
associating
with his child in
restaurants, theaters,
and
other
public places.
Will not the
deprivation
of the
parent's
full
companionship
react
adversely upon
the child? This
suggestion emphasizes
that
regulation
of the
family
must
take account of conditions of
society
with a view to
produc-
ing
normal children.
Apparently,
in
making
this or other
arguments
to
justify
anti-miscegenation laws,
the state bears the burden of
prov-
ing
a rational basis for its statute. The usual
presumption
in favor of
constitutionality
seems not to be
indulged
in
cases
arising
under the
equal protection
clause when funda-
"
Supra.
"
The claims that certain
races, especially
the
Negro,
are
biologically
inferior,
and the
progeny
of
racially divergent couples
are likewise
inferior,
found some
support among early investigators
of the
subject.
The later studies
generally
tend to discredit such claims. It
is signifi-
cant that in the Perez
case,
the
minority
cited the earlier
studies,
the
majority citing
the latest studies available. The case contains a valua-
ble list of the more
important
studies made in this field. Attention is
called to one excellent work
by Montague,
Man's Most
Dangerous Myth:
The
Fallacy of Race, (1945).
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40 DUKE BAR JOURNAL
mental
personal rights
are involved.22 And
marriage
seems
in
this
category.23
Also
exceptional
circumstances are re-
quired
to
justify
discrimination or classification of citizens
on the basis of racial descent.24
Conclusions
Social
mobility
and inter
group
contact-some
of it fos-
tered
by
recent
Supreme
Court decisions-tend to
produce
surroundings
more conducive to
,miscegenation.
Neverthe-
less test cases similar to Perez v.
Lippold, challenging
anti-
miscegenation laws,
will
probably
come
slowly
to the courts
if at all. For one
thing, potential plaintiffs
are hard to
find;
and few such
persons would
desire to suffer
possible
adverse
publicity
and other
consequences.
In the Perez case the
parties
were
seeking by
mandamus to
compel
issuance of a
license. But what if the state issues a license without
pro-
test, relying solely
on the
penal provisions?
Would there
be sufficient
standing
on the
part
of
plaintiff
to
challenge
these
penal provisions
before
marriage
had
subjected
them
thereto? In view of
this
necessary
risk of
punishment
it
is
questionable
that
many persons
would
go through
with
the
marriage,
even if convinced there was a constitutional
right
to
miscegenate. Also,
few "civil
rights" proponents
would be zealous
enough
in
opposition
to
any
statute to incur
matrimonial
entanglements
in order to be in a
position
to
challenge
the statute.
Thus, anti-miscegenation
laws will
probably
remain on
the statute books. Perez v.
Lippold may
have been a defeat
22
Truax v.
Raich,
239 U.S. 33
(1915); Railway
Mail
Association v.
Corsi,
326 U.S. 88
(1945);
Patton
v. Mississippi,
332 U.S. 337
(1947);
Takahashi v. Fish and Game
Commission,
334 U.S. 410
(1948).
This
changing
of the
presumption
arose in the cases
involving
lib-
erties
protected
under the First Amendment. See U.S. v. Carolene
Food
Products,
304 U.S. 147
(1938).
23
Meyer
v.
Nebraska,
262 U.S. 300
(1932);
Pierce v.
Society
of
Sister,
268 U.S. 510
(1925);
Skinner v.
Oklahoma, 316 U.S. 535
(1942).
Said
the court in the Skinner
case,
"We are
dealing
with
legislation
which
involves one of the basic civil
rights
of man.
Marriage
and
procreation
are fundamental to the
very
existence and survival of the race."
(Okla-
homa's sterilization statute was the
legislation
involved in that
case.)
24
Hirabayashi
v.
U.S.,
320 U.S. 81
(1943);
Korematsu v.
U.S.,
323
U.S. 214
(1944); Oyama
v.
California, supra.
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ANTI-MISCEGENATION LAWS IN THE U. S. 41
for
proponents
of
miscegenation,
for the decision of the
California court
prevented
recourse to the United States
Supreme Court;
and
thus,
whatever
"deplorable amalgama-
tion of races occurs" will continue to be
through
inter-breed-
ing
rather than
intermarriage.
JAMES R. BROWNING.
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