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Interracial marriage and right wing jurisprudence


This history of laws making it a crime for white and black people to get married to each other (and sometimes members of other “races”) is as follows:

Nine states never had any laws of this type:
 Alaska
 Connecticut
 Hawaii
 Minnesota
 New Hampshire
 New Jersey
 New York
 Vermont
 Wisconsin

Eleven states repealed anti-miscegenation laws in 1887 or earlier:
 Illinois (1874)
 Iowa (1851)
 Kansas (1859, before achieving statehood)
 Maine (1883)
 Massachusetts (1843)
 Michigan (1883)
 New Mexico (1866, before achieving statehood)
 Ohio (1887 – last before California, 1948)
 Pennsylvania (1780)
 Rhode Island (1881)
 Washington (1868, before achieving statehood)

Interestingly, liberalization efforts then came to a complete halt for more than 60 years, meaning that inter-racial marriage was a criminal offense in 28 of 48 states as of 1948. California’s supreme court declared the state’s statute unconstitutional that year; it was the first of 14 states to eliminate the criminalization of inter-racial marriage over the next 19 years, before the SCOTUS declared all such laws unconstitutional in 1967:

Arizona (1962)
 California (1948)
 Colorado (1957)
 Idaho (1959)
 Indiana (1965)
 Maryland (1967)
 Montana (1953)
 Nebraska (1963)
 Nevada (1959)
 North Dakota (1955)
 Oregon (1951)
 South Dakota (1957)
 Utah (1963)
 Wyoming (1965)

This meant that, as of the time of the SCOTUS decision, 16 states still made inter-racial marriage a criminal offense:

 Alabama
 Arkansas
 Delaware
 Florida
 Georgia
 Kentucky
 Louisiana
 Mississippi
 Missouri
 North Carolina
 Oklahoma
 South Carolina
 Texas
 Tennessee
 Virginia
 West Virginia

(Delaware seems like the odd outlier in this group).

Note that these laws made it a criminal offense for an inter-racial couple that had legally married in a jurisdiction where this was. permitted to co-habit in the state that criminalized such marriages. This was the case with the couple in Loving v. Virginia, who had moved to Virginia after their marriage, and were convicted under Virginia’s law. They were sentenced to a year in prison, but the sentence was suspended on the condition that they leave the state and not return for at least 25 years. The sentencing judge explained the law’s rationale:

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 marriage. The fact that he separated the races shows that he did not intend for the races to mix.

I’m not sure where the learned judge got his anthropological analysis — my guess would be from the Bible, probably somewhere towards the back.

Anyway, I think it’s worth emphasizing that, if not for Loving v. Virginia, inter-racial married couples would probably still be criminally prosecuted in several states, if they were to co-habit in those jurisdictions (Note that when Alabama passed an amendment in the year 2000, legalizing inter-racial marriage, 41% of the voters voted against it, including a majority in 25 of 62 counties. The significance of this is that, because of the Loving decision, the amendment was purely symbolic. It’s not hard to imagine that the vote might well have gone the other way if the amendment would have actually made inter-racial marriage legal in the heart of Dixie).

In fact it’s almost certain that various such laws would remain on the books, although enforcement would in all likelihood have been occasional and arbitrary, in the manner of homosexual sodomy laws prior to Lawrence v. Texas.

Now I think it’s important to emphasize that the quasi-official position of the whole Federalist Society racket, and its six current representatives on the SCOTUS, is that this is the way things should be: It should in fact be the case that individual states retain the right to criminalize inter-racial marriage, and not merely in theory, but in actual practice. Because that’s what constitutional originalism means in actual practice (the idea. that the people who adopted the 14th amendment thought they were making it impossible to criminalize inter-racial marriage is absurd).

This is what right wing jurisprudence is. It’s the position, when applied consistently — of course it often isn’t but that’s a separate issue — that no matter how utterly repulsive and immoral a law might be, the federal courts have no power to get rid of that law on the basis of even the most fundamental changes in society and public opinion. Again, this means that, objectively speaking, if you support the jurisprudence of constitutional originalism, you support the criminalization of inter-racial marriage.

The protest that well of course I personally don’t support that, I just won’t interpret the Constitution to prohibit such laws, is an empty sophistry. This point needs to be hammered home over and over again, and in regard not only to inter-racial marriage, but also in regard to laws criminalizing the purchase of contraceptive devices by married couples, the criminalization of same-gender sexual relations etc. etc.

This, in turn, means that a vote for a Republican presidential or congressional candidate is by extension a vote for criminalizing inter-racial marriage etc. That is simply the logical consequence of voting for people who put judges like Thomas, Alito, Gorsuch, Kavanaugh, ACB, and their now countless epigoni on the federal bench. These judges believe it should be legal to criminalize inter-racial marriage — something which, given the increasing intensity of reactionary theocratic atavism in this country, is becoming a very real practical as opposed to merely theoretical possibility.

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