Loving and Marriage

Today is the 40th anniversary of the landmark Loving v. Virginia case, the case that finally declared laws against interracial marriage to be unconstitutional. Many thanks to Rachel Kramer Bussel for reminding us all that not only is this the anniversary, but that an organization exists that promotes its celebration! Here’s a link to her interview with Loving Day’s founder, Ken Tanabe.

Interracial marriages were still against the law in 16 states as recently as 1967, when the Supreme Court ruled that laws criminalizing them were unconstitutional. (They were illegal in 24 states in 1958 when Virginia residents Richard Loving, a white man, and Mildred Jeter, a black woman, traveled to Washington DC to get married.) Loving v. Virginia is an interesting case to think about. For one thing, the law being challenged did not prevent all interracial marriages, but only those that involved white people. An African American and a Native American could marry, but neither could marry a white person. The concern was clearly for protecting the “racial purity” of white people as the dominant race. Here’s an excerpt from the Supreme Court decision that quotes the law in question:

The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating 20-58 of the Virginia Code:

Leaving State to evade law. If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.”

Section 20-59, which defines the penalty for miscegenation, provides:

“Punishment for marriage. If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”

Not only were interracial marriages unrecognized, but to live together “as man and wife” was evidence of marriage and marriage was a felony crime punishable by up to five years in prison. In the case of the Lovings (aptly named!), who had gone to Washington DC to get married in 1958, the punishment had been 1 year in prison, suspended for 25 years as long as they left the state and didn’t return for 25 years. In other words, they must spend a year in prison or be banished from their home state. The Lovings pleaded guilty when they were charged in January 1959, moved to Washington DC after their banishment, and spent the next 8 years filing motions and appeals attempting to win their right to be married.

Their case is interesting also because it highlights the use of religion in decisions about marriage, and the way that God is invoked to justify socially-defined boundaries. The judge who ruled on the Loving’s original conviction wrote:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Of course many deeply religious people were activists in the civil rights movement, and that movement itself would have been impossible were it not for the part played by churches. The words of the judge in the Loving case reflect a narrowly defined understanding of Christianity and God held by a small but dominant group of people. We are seeing something very similar in our current fight for marriage equality today. When people oppose marriage between two people of the same gender, they often invoke a narrow understanding of god that is held by a shrinking but still dominant group of people.

When the Lovings’ case was heard by the Supreme Court, the question was really whether it was a violation of the 14th amendment to ban marriage between two people based only on their races. The first section of the 14th amendment reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th amendment is not one that deals only with questions of race. In fact, the only place that race is mentioned in the text of the amendment is a mention of “Indians” in Section 2 which deals with representation in Congress, and there it is not race on its own but “Indians not taxed” — read: Indians who are members of Native American Nations — and while the entire history of the treatment of Native Americans in North America is one of racial injustice, of course, the issue as presented in the 14th amendment is one of “no representation without taxation.”

Celebrating the Loving v. Virginia decision is important for at least two reasons. First, we should celebrate the step away from institutionalized racism that the decision represents. And we should notice the degree to which racial injustice still pervades our social structure, and should continue to work for racial equality. We are still a segregated society, with segregated schools and segregated social groups. We need reminders to cross boundaries we wouldn’t ordinarily cross and to make friends. Second, we should celebrate in order to reminds ourselves that injustices can be rectified, and that with courage, persistence, and activism, they are rectified.

Can you imagine if the federal government had passed a “Defense of Marriage Act” in the late 1950s or early 1960s such that no state would have to recognize any other state’s interracial marriages? Might that have changed the tenor of the Supreme Court such that the Loving case would have gone differently?

Can you imagine requiring interracial couples to endure civil unions rather than having full marriage rights?

We are again in the midst of a struggle for equal protection under the law as it relates to marriage rights, this time for couples where the partners belong to the same group, rather than to different groups.

Shouldn’t we grant couples of the same gender the kind of equal protection granted to couples of different races 40 years ago?


Bonus points: I know some of you read from other countries. In addition to discussing the specific issues raised above, can anybody provide links or discussions of marriage segregation laws from other countries, or discuss how they’ve changed?


Filed under civil rights, culture, discrimination, Family, Gender, heterosexism, Homophobia, inequality, Loving v. Virginia, marriage, News and politics, public discourse, racism, Relationships, Same-Sex Marriage, sex, US Supreme Court

5 responses to “Loving and Marriage

  1. Your bonus points question makes me think of things I saw and heard when I was living and working in South Korea from 1988-89. As far as I know, there was at the time no law against interracial marriage—I don’t know that there is now; nor do I know that there ever was—but the idea that a Korean ought to marry only another Korean in order to maintain racial (and cultural) purity ran very deep. In discussion, the importance of racial purity was cited to me never as a personal preference, but as a kind of obligation that the individual owed to the group. As a kind of concrete negative evidence, one need only look at the fate, until fairly recently, of interracial children, especially interracial orphans, in that country. (I should add, though, that I never heard this notion of racial purity expressed in the ways that, say, Nazis or other white supremacists express it; no one ever claimed that Koreans were a master race.)

    It was okay to have lovers of another race—and there was quite a bit of prestige, at least among the people I knew, attached to having slept with a white person (someone, a Korean, told me that the idiom “to ride the white horse” referred to that); and more than a few of the Korean men I was friendly with questioned me quite seriously about how many different “kinds” of women I had “had”—but almost none of the Koreans I encountered would have considered marrying outside their race. Indeed, a Korean male friend of mine fell seriously in love with a white woman colleague (we were English teachers), and she with him. From what I understand, he told her up front that there was no chance of them getting married, and one of the reasons he gave me was that she was not Korean. In my own experience, a Korean woman I fell in love with, who came to the United States to be with me—we were going to get married—was told to go and “be a round-eyed’s whore.”

    And it was not only intermarriages with white people that were problematic. I met a Korean woman who had married an Indian man, and a Korean man who had married a Thai woman, and they each ran heavily into accusations of that they were betraying their race and their heritage; and they each knew that they were not going to raise their children in Korea.

    I don’t know if things have changed there.

  2. Laws against interracial marriage as late as 1967. Having graduated high school in 1968, on the one hand I’m amazed that such prejudice existed then, but then that was before a lot of change took place in the 1970’s, much of which I got involved with in a number of ways.

    I suppose there was a lot of prejudice (there was) in the small town where I grew up. Although quite ethnically diverse, a lot of prejudice against those who were not the same. I often dated a girl who lived a block from me, in spite of rather constant discouragement (not openly, but there) from her father. You see, she was Polish and I was Jewish, and there was no way we were ever, ever going to marry.

    We’ve come a long way in some respects, but as you point out, there is still prejudice and discrimination in who might marry. Not about race, but about gender these days.

  3. Sean

    Hi Elizabeth,

    There is a solution to inequity in marriage rights that is never talked about. Why is the government in the business of recognizing religious institutions in the first place? I propose removing legal recognition to all marriages.

    Civil unions could take care of all the current legal marriage rights (such as inheritance and medical decision making) between consenting couples regardless of sexual orientation. Marriage could then be a term used by religious bodies in any way they deem appropriate. So, for instance, the Catholic church would not be able to complain about the government performing gay marriages and the Unitarian church would be able to perform them.

    I wish it were possible for all members of society to be as accepting of gay rights as you and I, but we must take an approach that can enact real change. There is a reasoned approach to this seemingly insurmountable divide that our society has dug.

  4. Part of the distinction that Sean mentions gets lost because of the way that we think about marriage in the US, which really does point out what a religiously oriented society we are, even though we don’t always think of ourselves that way. What I mean is this: civil marriage is already a secular institution and exists separately from religious marriage. When my partner and I got married we were able to choose between religiously affiliated solemnizers, nondenominational solemnizers, or judges or justices of the peace (secular solemnizers). The state did not care what we chose, so long as someone “vested with the authority of the state” presided over the saying of our vows and the signing of the forms.

    Perhaps the problem is that in the US we are less culturally able to separate the word “marriage” from our religious traditions — whatever they may be — because of the powerful place of religion in our culture.

    If “civil union” was to become the secular equivalent to “religious marriage” I would only be content with that so long as all states had to recognize the civil unions of all other states, as had been done with marriages until the Defensive Marriage Act (oops, Defense of Marriage Act) was passed in ’96.

    I would rather see a concerted effort to make more visible to all the already-existing distinction between civil marriage and religious marriage.

  5. Richard, thank you so much for your comment. It points to the tremendously important force of culture and social structure even despite the law. In the US this is evidenced by the relatively small number of white-nonwhite marriages, which is connected of course to residential segregation by race and class and the intersections of race/ethnicity and class, in addition to the norms that keep us from “being comfortable” with each other. Oppression and power so often work on the informal level despite efforts in the law to create equality.

    Neal, this links to your comment, too, I think. My partner has talked about how in his small town, which was very white but divided by ethnicity and religion, it was absolutely out of the question that he — from a Protestant family — would ever be allowed to date a Catholic.