Miscegenation Laws and the Bill of Rights
Miscegenation laws were statutes that prohibited interracial marriages and often imposed criminal penalties on sexual relations and cohabitation between individuals of different racial backgrounds. These laws represented a stark form of racial discrimination within U.S. law and were in place in thirty-eight states at various points in history, particularly prevalent in the southern states. They not only criminalized interracial unions but also denied legal recognition to children born of such relationships. The landmark case of Loving v. Virginia in 1967 challenged these laws, leading the U.S. Supreme Court to declare that prohibiting marriage based on race violated the equal protection and due process clauses of the Fourteenth Amendment. This ruling effectively invalidated all remaining miscegenation laws in the United States. By the 2020s, these laws were viewed as an outdated relic, with public sentiment largely opposing their revival. However, with recent shifts in the Supreme Court's approach to established precedents, the discussion around the legality of interracial marriage has resurfaced, prompting concerns over the potential for renewed legal challenges to various forms of marriage, including same-sex unions.
Subject Terms
Miscegenation Laws and the Bill of Rights
Description: Laws that prohibited interracial marriages and often attached criminal penalties to sexual relations and cohabitation between Whites and nonwhites.
Relevant amendments: Fifth, Fourteenth
Significance: State miscegenation laws were examples of explicit racial discrimination in U.S. statutory lawthey criminalized and penalized the unions of persons of differing racial heritages and denied legal legitimacy to mixed-race children born to such interracial couples.
Thirty-eight of the states at one time had miscegenation laws in forceseven of those thirty-eight repealed their laws before 1900. All southern statesnot including the District of Columbiahad miscegenation statutes. Many western statesincluding Arizona, California, Montana, Nevada, Oregon, Utah, and Wyomingin addition to forbidding intermarriage between Blacks and Whites, also specifically prohibited unions between Whites and Native Americans or Whites and Asian Americans. Penalties upon conviction varied from a maximum imprisonment of more than two years in most of the South and some statesten years in Florida, Indiana, Maryland, Mississippi, and North Carolinato sentences ranging between a few months and two years in other states. Enforcement of the laws was random and irregular.
The key case in ending miscegenation laws was Loving v. Virginia (1967). At the time that the U.S. Supreme Court heard the Loving case, sixteen states still had miscegenation laws in force. Virginia’s laws dealing with racial intermarriage were among the nation’s oldest. They stemmed from statutes formulated in the colonial period (1691) and had been strengthened by more stringent miscegenation legislation passed in the mid-1920s in which Whiteness was very narrowly defined. The codes that became law in 1924 were aimed primarily at discriminating against people of mixed African American heritage and White heritage with an American Indian background.
In the Loving case, Richard Perry Lovingwho was Whitemarried Mildred Delores Jesterwho was African Americanin Washington, D.C., in June, 1958. The Lovings made their home between Fredericksburg and Richmond in Caroline County, Virginia. They were issued warrants of arrest in July, 1958. In January, 1959, they were convicted before the Caroline County court of violating Virginia’s anti-miscegenation statute. Their minimum sentencesone year imprisonment eachwere suspended on agreement that they would leave the state. They moved to Washington, D.C. until 1963, when they returned to their farm in Virginia and worked with attorneys Bernard Cohen and Philip Hirschkop of the American Civil Liberties Union (ACLU)who placed their case under appeal. The miscegenation law and the Lovings’ convictions were upheld by the Virginia Supreme Court of Appeals in March, 1966, but in June, 1967, the U.S. Supreme Court overruled the appellate finding. The Supreme Court ruled that use of race as a basis for prohibiting marriage rights was unconstitutional under the equal protection and due process provisions of the Fourteenth Amendment. The ruling nullified all remaining laws forbidding interracial marriage. Previous to the unanimous 1967 ruling, the U.S. Supreme Court took a conservative approach to this civil rights issue. It had repeatedly avoided reviewing lower court convictions based on state antimiscegenation lawsJackson v. Alabama in 1954, Naim v. Naim in 1955, and McLaughlin v. Florida in 1964.
By the 2020s, the question of miscegenation appeared to be a closed matter as these types of laws had been legally invalidated for more than half a century. Public sentiment also appeared such that the mere suggestion of miscegenation laws in the United States was considered abhorrent and a relic of a bygone era. Nonetheless, in 2022, the conservative supermajority in the US Supreme Court effectively overturned Roe v. Wadea landmark case concerning reproductive rights. Many Americans had, for decades, considered Roe v. Wade as settled law. With the undoing of Roe v. Wade, many began to contemplate that many other laws considered as permanent fixtures in American jurisprudence, were now subject to review. Members of the supermajority Roberts Court, in fact, rendered public statements to that very effect. Regarding miscegenation, in a 2024 article in The Nation, the publication quoted Indiana senator Mike Braun as suggesting that, similar to Roe v. Wade, the legality of interracial marriages could be a topic sent back to the states for re-examination. While miscegenation laws appeared unlikely to gather public support, in the mid-2020s, the potential for discrimination against other types of non-traditional marriagessuch as those between same-sex couplesappeared to be at higher risk.
Daily, Jane. "Interracial Marriage Under Attack: Thinking the Unthinkable." The Nation, 28 Mar. 2022, www.thenation.com/article/politics/interracial-marriage-supreme-loving/. Accessed 29 Aug. 2024.
"Laws Meant to Keep Different Races Apart Still Influence Dating Patterns, Decades after Being Invalidated." The Conversation, 7 June 2024, theconversation.com/laws-meant-to-keep-different-races-apart-still-influence-dating-patterns-decades-after-being-invalidated-229246. Accessed 29 Aug. 2024.
Matza, Max. "Respect for Marriage Act: Why Interracial Marriage Is Also in the Law." BBC, 13 Dec. 2022, www.bbc.com/news/world-us-canada-63801108. Accessed 28 Aug. 2024.