Defense of Marriage, 45 Years Ago

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In the upcoming primary elections this spring, North Carolina voters will vote on a proposed amendment to the state constitution. It will be listed as N.C. Amendment 1. The ballot will read:

“[ ] FOR           [ ] AGAINST

Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”

You can find the full text of Senate Bill 514, the legislative bill that put this amendment on the ballot at:

In church the other Sunday, the pastor, Steve Shoemaker, reminded the congregation of another and similar law about marriage in Virginia. I was surprised by the details of the court case he cited, so I looked it up. The actual details from the Supreme Court decision are more surprising than anything I read about it on Wikipedia, or on any other private site.

Since I’m not a good writer, I’ll mostly quote from the write-up of the U.S. Supreme Court case that decided the issue in Virginia. (You can find the full text of that case, Loving v. Virginia, at:

The Virginia laws the Supreme Court considered in the case were section 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.”

and section 20-59, which laid out the penalty for interracial marriage:

“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.”

The actions of the couple who violated the Virginia law:

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court [388 U.S. 1, 3]   of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years.

The original trial judge stated:

“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.”

The Lovings moved to the District of Columbia. After the Virginia courts did not act on their appeal in the requisite amount of time, the couple appealed to the U.S Federal courts. A Federal court ordered the Virginia courts to handle the appeal. All the Virginia courts that considered the case upheld the Virginia law, and so the Federal District Court referred the case to the U.S. Supreme Court for a final decision.

The Supreme Court’s decision, from which I have been quoting, goes on for several paragraphs about the historical background and treats several cases cited by Virginia as having legal precedence.  Here are what I found to be most interesting:

… Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.  Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period.  The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a “white person” marrying other than another “white person,”  a prohibition against issuing marriage licenses until the issuing official is satisfied that [388 U.S. 1, 7]   the applicants’ statements as to their race are correct,  certificates of “racial composition” to be kept by both local and state registrars,  and the carrying forward of earlier prohibitions against racial intermarriage.

… The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt (emphasis mine) and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

And the decision of the court:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

(As a side note, it seems to me I have heard that phrase “the scientific evidence is substantially in doubt” in at least a couple of other situations. Let me think… is smoking harmful?)

I am merely drawing a comparison between the proposed amendment and the old Virginia case. Anyone who has read this far is surely capable of drawing a conclusion.

P.S. I found this statement at the beginning of the Supreme Court decision disheartening:

T. W. Bruton, Attorney General, and Ralph Moody, Deputy Attorney General, filed a brief for the State of North Carolina, as amicus curiae, urging affirmance.

That means we were on Virginia’s side back then. I guess even people in the Great State of North Carolina have made some mistakes in the past.



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