Miscegenation Laws

Miscegenation laws, sometimes referred to as antimiscegenation laws, regulated interracial sexual relations. The term ‘‘miscegenation’’ was first used in an 1863 New York pamphlet ‘‘Miscegenation: The Theory of the Blending of the Races, Applied to the American White Man and Negro’’ and is derived from the Latin words miscere (to mix) and genus (race), though the pamphlet advocated miscegenation as a way to end racial differences in America.

Laws regulating interracial sexual relationships have existed in many countries and at many times. In the twentieth century, Nazi Germany, apartheid South Africa, and the United States were notable proponents of such laws.

The nature and scope of miscegenation laws varied between jurisdictions. The history of miscegenation laws in the United States began in colonial times when Virginia passed a law in 1662 making the punishments for interracial fornication twice as harsh as intraracial fornication. In 1664, Maryland passed a law prohibiting whites and blacks from intermarrying. Generally miscegenation laws prohibited interracial fornication and marriage. These laws spread throughout the colonies, in the North and the South, before and after the American Revolution. As the United States expanded, so too did the number of states with miscegenation laws, before and after the civil war, with forty-one states having had laws prohibiting interracial marriage by 1914.

Miscegenation laws were introduced to prevent mixed-race offspring and were frequently justified as necessary to protect the purity of the white race under theories of racial superiority. In slave states the presence of mulattoes posed problems for the existence of racial slavery over whether mulattoes were freeborn because of their white parent or subject to slavery because of their black parent. Departing from English common law, mixed-race children gained their status from their mother. This placed the onus of maintaining the system of racial slavery onto white women, the protection of whose virtue was often cited as further justification for miscegenation laws. The illegitimate offspring of white men and black slave women were slaves. Despite rhetoric and public pronouncements to the contrary, sexual relations between white men and black slaves were common in the antebellum south. The most famous is the reputed relationship between Thomas Jefferson and Sally Hemmings, though public knowledge of such relationships then would have created a scandal.

During reconstruction the status of miscegenation laws was called into question by the passage of the Civil Rights Acts of 1866 and 1875, and the Fourteenth Amendment, which the Alabama Supreme Court used to strike down a miscegenation law in 1872 before being quickly reversed. However, the consensus was that these measures were not intended to prohibit miscegenation laws because they applied to all races equally.

After Reconstruction more states introduced miscegenation laws and, especially within the South, the existing laws were toughened and more vigorously applied. Criminal penalties ranged from fines to imprisonment and banishment from the state. The marriage could be declared void. This increased the stakes for civil enforcement of the statutes because voiding marriages nullified any spousal property claims and rendered any children illegitimate, thus affecting the inheritance of property.

Miscegenation laws were primarily aimed at preventing whites from mixing with blacks, but in some states white’s marrying Asians, Native Americans, and mulattoes was also prohibited. Sometimes the laws prohibited all races from marrying members of any other race. These laws required specific determinations as to one’s race; standards differed but could be as strict using ‘‘one drop of blood’’ to determine that a person was not white.

Pennsylvania repealed its miscegenation laws in 1780 and in the nineteenth century a few states repealed their miscegenation laws, starting with Massachusetts (1843) and ending with Ohio (1887). Oregon was the next state to repeal its miscegenation laws, but not until 1951. However, in 1912 and 1913, Vermont and Massachusetts passed laws voiding interracial marriages for nonstate residents to prevent interracial couples trying to avoid miscegenation laws in their own states. California was the only state to forbid interracial marriage and fully recognize such a union from a jurisdiction where it was legal.

In 1948, the California Supreme Court used the federal constitution to strike down the state’s miscegenation law in Perez v. Sharp, 32 Cal.2d 711 (1948). The U.S. Supreme Court appeared ready to enter the fray in 1955 when it accepted Naim v. Naim, 875 E. 2nd 749 (Va. 1955); 350 U.S. 891 (1955); 350 U.S. 985 (1956)—a challenge to the Virginia miscegenation laws. The Court later used a procedural device to avoid ruling on its constitutionality. It is thought that this was to avoid exacerbating the tensions caused by the Court’s recent ruling in Brown v. Board of Education, 347 U.S. 483 (1954), 349 U.S. 294 (1955).

Public opinion was turning, however, and between 1951 and 1967, fourteen states repealed their miscegenation laws, leaving sixteen states with active bans on interracial marriage. In McLaughlin v. Florida, 379 U.S. 184 (1964), the U.S. Supreme Court struck down an interracial fornication statute and in 1967 the Court used Loving v. Virginia, 388 U.S. 1 (1967), to declare that miscegenation laws prohibiting interracial marriage violated the Fourteenth Amendment’s due process and equal protection clauses, thus ending the enforcement of miscegenation laws in the US.

In the time after Loving, many states removed their now unenforceable miscegenation laws and state constitutional provisions. Alabama was the last state to remove the miscegenation provision from its constitution in 2000, though approximately 40 percent voted to retain the clause.

The history of miscegenation laws is seen as potentially significant for same-sex marriage legalization, with many advocates of same-sex marriage drawing an explicit comparison. Opponents deny any such analogy on the grounds that marriage has only ever been between a man and a woman; miscegenation laws imposed an additional impediment, whereas same-sex marriage would require a redefinition of the fundamental meaning of marriage. States prohibiting any sort of same-sex unions are in a similar position to states with miscegenation laws in deciding whether or how to avoid acknowledging same-sex couples married in other states that do permit such unions.

GAVIN J. REDDICK

References and Further Reading

• Bardaglio, Peter W. Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South. Chapel Hill: University of North Carolina Press, 1995.
• Kennedy, Randall. Interracial Intimacies: Sex, Marriage, Identity and Adoption. New York: Pantheon Books, 2003.
• Koppelman, Andrew, Same-Sex Marriage and Public Policy: The Miscegenation Precedents, Quinnipiac Law Review 16 (1996): 105–151.
• Wadlington, Walter, The Loving Case: Virginia’s Anti- Miscegenation Statute in Historical Perspective, Virginia Law Review 52 (1966): 1189–1223.

Cases and Statutes Cited

• Brown v. Board of Education, 347 U.S. 483 (1954), 349 U.S. 294 (1955)
• Loving v. Virginia, 388 U.S. 1 (1967)
• McLaughlin v. Florida, 379 U.S. 184 (1964)
• Naim v. Naim, 875 E. 2nd 749 (Va. 1955); 350 U.S. 891 (1955); 350 U.S. 985 (1956)
• Perez v. Sharp, 32 Cal.2d 711 (1948)

See also Substantive Due Process