Intermarriage Court Decisions

A series of social, scientific, and religious debates about intermarriage between people of different races began in Maryland in 1664, when colonial legislators passed a law that banned white people from marrying black indentured servants or slaves. The arguments persisted for over three centuries. Their evolving nature can be traced through significant court decisions issued between the ratification of the Fourteenth Amendment in 1868 and the 1967 U.S. Supreme Court ruling in Loving v. Virginia, which ended all bans on racial intermarriage throughout the United States.

Laws to ban sexual relationships and intermarriage between black people and white people were primarily used to strengthen white supremacy. In the 17th and 18th centuries, such laws defined marriage as a privilege reserved only for free (white) people and denied to enslaved (black) people. The laws often punished white people who ignored or rejected white supremacy. For example, if a white person married a free black person in Virginia after 1705, the white person could be imprisoned for up to six months.

After the Civil War, during Reconstruction, Congress passed the Fourteenth Amendment, and its charge to the states to uphold “equal protection” of the law for all citizens put racial intermarriage bans to a sharp test. Slavery had ended, and critics of racial intermarriage could no longer define marriage as a privilege reserved for free people. In 1870, a grand jury indicted a black man for violating Indiana's intermarriage ban by marrying a white woman, but the trial judge dismissed the case, ruling that Section 1 of the Fourteenth Amendment (the equal protection clause) overturned Indiana's ban on racial intermarriage. The state appealed to the Indiana Supreme Court, which ordered in Gibson v. State (1870) that the Fourteenth Amendment could not affect marriage rights, which were traditionally reserved to the states.

The equal protection clause had a different impact in Burns v. State (1872), an Alabama Supreme Court case involving a justice of the peace indicted for violating Alabama's racial intermarriage ban by officiating at the wedding of an interracial couple. Proponents of Alabama's ban argued that it did not violate “equal protection” of citizens’ rights because all citizens were denied the option of marrying a person of a different race. The pro-Reconstruction judges on the Alabama Supreme Court rejected this reasoning. The judges defined marriage as a contract between two people and ruled that a ban on racial intermarriage violated the newly won right of black citizens to make legally binding contracts with other citizens, including white ones. All citizens were accordingly free to choose racial intermarriage under the Fourteenth Amendment.

Although Burns v. State did not affect intermarriage bans in other states, state courts in Texas and Louisiana also overturned their states’ bans in the early 1870s, and through other legal processes, four other former Confederate states legalized racial intermarriage. These changes were short-lived. Reconstruction crumbled, and in Alabama in 1876, when white power increased through violent suppression of black voters, legislators ignored Burns v. State and created a new law that banned interracial marriage and created heavier penalties for interracial couples committing fornication or adultery. A jury quickly convicted a white woman of violating this statute by marrying a black man. New justices on the Alabama Supreme Court upheld her conviction and incarceration in Green v. State (1877).

...