Miscegenation: An American Leviathan

Vol. 36 No. 3

By

Kevin Noble Maillard is an assistant professor of law at Syracuse University. He is coeditor of the book Loving v. Virginia in a Post-Racial Age forthcoming from Cambridge University Press.

The U.S. Supreme Court declared antimiscegenation laws unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967). Richard Loving, a white man, and Mildred Jeter, an African American woman, had legally married in Washington, D.C., and were arrested shortly after their return to Virginia. Their marriage violated the Virginia Racial Integrity Act of 1924, a legislative enactment of eugenics. This governmental interest in selective breeding led the trial judge to declare “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents . . . [H]e did not intend for them to mix.” Id. at 1. Overturning this ruling, the Court held that prohibitions on racial intermarriage violated both equal protection and due process.

Loving established a new context for racial possibilities in the United States. In addition to allowing marriage across the color line, Loving required states to give legal credence to the existence of interracial sex and romance. This decriminalization shifted the legal condition of miscegenation from illicit to legitimate, beginning with the status of mixed race offspring. Legal obstacles to interracial kinship became a thing of the past.

The number of interracial marriages has increased as a result of Loving . The U.S. Census reports a growth from 157,000 marriages in 1960 to 1,161,000 in 1992 to over 3,000,000 in 2000. According to a recent Gallup poll, white approval of interracial marriage has increased from 4 percent in 1958 to 75 percent in 2007. The U.S. Census began counting the multiracial population in 2000, with 2.4 percent of Americans reporting two or more races.

Interracial marriage walks a fine line between being explicitly legal and implicitly criminal. Even in the age of President Barack Obama, the son of an African father and a white woman from Kansas, American patterns of interracialism have remained relatively static. Interracial marriages still account for fewer than 5 percent of all marriages, hardly a statistic suggesting a significant change in marital patterns. Of this percentage, whites are the least likely racial group to marry interracially, with a 96.5 percent rate of marrying within their race. Blacks follow closely behind, at 93 percent. Hispanics and Asians marry within the same racial group at a rate of approximately 70 percent, with American Indians collectively reversing that statistic by marrying interracially at 70 percent. Randall Kennedy, Interracial Intimacies 120, 127 (2003).

The stigma of miscegenation still flourishes in the political realm. As recently as 1999, Senator Robert Bennett (R-UT) predicted that George W. Bush’s presidential nomination was secure unless “some black woman [came] forward with an illegitimate child.” In Tennessee’s U.S. Senate election in 2006, opponents of Congressman Harold Ford Jr., aired commercials that drew attention to his interracial dating history. Further, Alabama only removed the antimiscegenation provision from its state constitution in 2000, with 40 percent of voters wishing to maintain the moribund provision.

The ghost of antimiscegenation law remains a persistent force in Americans’ view of family formation and racial difference. However, focusing only on interracial marriage fails to account for other private relationships that are also racially mixed. Heralding Loving as the beginning of a multiracial nation mistakenly attributes all gains to a single marriage case without recognizing the banality of interracialism—married or unmarried—that preceded it. If 1967 marks the inaugural year of interracial possibilities, it reinforces the legal authority of the antimiscegenation regime that preceded it. This would erase the history of intermixture that preexisted Loving while obscuring those states that never passed antimiscegenation laws. Not all states had such laws, but the sting of restriction in a substantial number of states contributed to a national impression of the illegitimacy of mixed race.

Just as race endures as a historical leviathan in American culture, few changes have occurred in the realm of sexual intimacy. Personal preferences for marital and nonmarital partners have not greatly changed since 1967. Even the most fervent advocates of colorblindness zealously maintain color consciousness while selecting their partners. Just as law in the past prevented people from marrying someone of another race, it simultaneously does not encourage it in the present. It does maintain, however, a collective belief in the anomalous nature of racially mixed families and people. Loving and similar laws that preceded it assume that interracial marriage begins from a clean slate. But as long as this legacy of separation persists, current deviations from the norm of racial purity will remain just that—deviant.

For more information

Loving Day: Celebrating the Anniversary of Loving

Mildred Loving’s Obituary

The Alternatives to Marriage Project

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