“I Do,” “I Do,” “Oh, No You Don’ t!” Is Marriage a Civil Right and Who has the Right to Decide?

1. “I Do,” “I Do,” “Oh, No You Don’t!” Is Marriage a Civil Right and Who has the Right to Decide? Jean Larsen Trisha Singer Rockford, Illinois

2. Loving v Virginia By Jean Larsen Flinn Middle School

3. What is Miscegenation? Miscegenation: noun marriage or cohabitation between two people of different races, especially, in the U.S., between a black and a white person. interbreeding between members of different races. the mixing or a mixture of races by interbreeding. Origin: irregular < Latin miscē ( re ) to mix + gen ( us ) race, stock, species + -ation; allegedly coined by U.S. journalist David Goodman Croly (1829–89) in a pamphlet published anonymously in 1864 Source: www.dictionary.com Source: The Cleveland Gazette, circa12/09/1899 http://memory.loc.gov/cgi-bin/query/r?ammem/aaeo:@field(DOCID+@lit(o19223))

4. Mildred and Richard Loving

5. June 12, 2007 • Marked the 40th anniversary of the end of anti-miscegenation laws in Virginia and 12 other states at that time. • The story unfolds in the context of the beginning of the Vietnam War, counter culture of the 1960s and the Civil Rights struggle which resulted in large shifts in American society.

6. Back ground • Richard Loving, white and Mildred Jeter, African American and Rappahannock Native American grew up together in Caroline County, Virginia. • They fell in love and went to Washington, DC where interracial marriage was legal in June of 1958.

7. Caroline County, VA July 11, 1958 late at night… • Sheriff Brooks and two officers came into their bedroom located in the home of Mildred’s parents to arrest them. • “I woke up and these guys were standing around the bed. I sat up. It was dark. They had flashlights. They told us to get up, get dressed. I couldn’t believe they were taking us to jail.” Mildred Loving

8. “The Loving's have the right to go to sleep at night knowing that if should they not wake in the morning, their children would have the right to inherit from them. They have the right to be secure in knowing that, if they go to sleep and do not wake in the morning, that one of them, a survivor of them, has the right to Social Security benefits. All of these are denied to them, and they will not be denied to them if the whole anti-miscegenistic scheme of Virginia... [is] found unconstitutional.“ Bernard Cohen, ACLU attorney.

9. The couple were not of the same race, therefore they had broken the law. • Richard was held for one night. • Mildred was kept for several days.

10. Encountering a series of laws against black-white marriages in Virginia. • 1878 law defined black as ¼ • 1910 1/16 • 1924 “one drop” rule • 1878 moving out of Virginia to marry and then immediately returning to the state and claiming to be married • 1958 At this time ant-miscegenation laws were being repealed by some states, but not in Virginia.

11. Sentencing • January 6,1959 Mildred and Richard plead guilty and are sentenced to one year in jail. • They received a suspended sentence if they would • Leave Caroline County and Virginia • Not return together for 25 years • After 25 years they would still face prosecution

12. Back and forth • The Lovings moved back to Washington, DC • Mildred returned to Caroline County to give birth to their three children. • “I wanted to come home. My family was here and my husband’s family was here. Moreover, she said, I hated to live in he city.” • 1963 Mildred wrote to Robert F. Kennedy, Attorney General. I told of our situation” and asked if there was any way he could help us.”

13. Return to Court • American Civil Liberties Union, ACLU lawyer Bernard Cohen took the case, later joined by Philip Hirschop. • November 1963 the case was filed to set aside the judgment • January 1965 Judge Bazile presided at the hearing to have his previous judgment set aside.

14. Judge Bazile • The Loving marriage was void in Virginia • If they stayed that would face repeated prosecutions • Quoting a Virginia High Court case Naim V Naim marriage was “a subject which belongs to the exclusive control of the States” • The U.S. Supreme court had not overruled the 1955 decision.

15. Judge Bazile • In conclusion the judge wrote: 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.

16. Virginia Supreme Court • March 7, 1966 a unanimous court declared, “We find no sound judicial reason … to depart from our holding in the Naim case”… • The law against interracial marriage was as sound as it was in the 1880s

17. The Supreme Court decides to hear the case “the miscegenation issue… was let open in discrimination based on race must be examined carefully… December 12,1966 the court agreed to hear the case.

18. Two sides Loving Virginia 10th Amendment State’s authority to regulate marriage Questions the reach of the 14th Amendment Federal case upholding bans on interracial marriage • Evidence from Brown v Board of Education separate is not equal • 14th Amendment • Privacy issues • Right to happiness, the right to marry

19. Free Now • The Supreme Court rule unanimously that race could not be a factor in determining marriage laws.

20. Credits • 388 U.S. 1 APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA Syllabus • Tell the Court I Love My Wife . Peter Wallenstein. Palgrave.2002.New York. • From Jim Crow to Civil Rights. Klarman Michael. Oxford University Press.2004.New York.

21. Anti-Miscegenation Laws & Age Restriction Trisha Singer Kennedy Middle School

22. Why Marriage Law? “As a social institution, marriage links individuals desire to social respectability to responsibility, marriage has the extraordinary power to neutralize some social relationships, and to stigmatize others as unnatural.” –Peggy Pascoe

23. Race • Beginning in the colonies these laws were used to protect the white race and keep it pure. • The theme of white racial purity is consistent. • These early laws set the social and legal precedent and solidified the cultural beliefs that allowed 1896’s Plessy v. Ferguson decision of “separate but equal” as well as the Jim Crow laws.

24. Early Origins • Virginia, 1662: This law written to address the issue surrounding children of slavemasters and slave women. They defined slavery as a condition inherited from mothers and prohibited marriage or bastardry between "any Christian and a negro man or woman.“ • Massachusetts, 1705: Law passed to ban marriage between whites and blacks as well as Native Americans. • Mississippi, 1822: Law stated that marriage can only be solemnized "between any free white persons with in the state." Therefore forbidding everyone else from marrying at all. • Alabama, 1852: This code prohibited "the establishment of relationships giving the appearance of marriage between whites and blacks"

25. Native American Tribes • 1824, the Chickasaw & Cherokee Nations banned intermarriage between “negro slaves and Indians or whites.” • 1825, the Chickasaw passed a law that stated and “white” man who fathered children with “Indian” women to leave their property to the children if they subsequently left the Nation & another that said “any of our children” who take a negro as a husband or wife forfeit all right to property. • 1839, the Cherokee Nation broadened its bans to prohibit marriage “between a free male or female citizen with any person of color.” • 1858, the Cherokee Nation passed additional laws that forbade “all persons other than negro from cohabitating with a negro or negroes.” This even included fines to be used to pay the informant to the authorities. • These groups were seen as other or non-white by the mainstream American culture. Why then do you feel they discriminated so easily against blacks? • The legacy of slavery within Native American tribes is not well know, however these laws all came out of the same tradition of slavery as many other miscegenation laws .

26. Miscegenation indorsed by the Republican Party, 1864 (8 pages total) This pamphlet attempts to use the party member’s word’s from speeches and debates to prove that they are actually pro-miscegenation and for black rights. Source: http://memory.loc.gov/cgi-bin/query/r?ammem/rbaapcbib:@field(NUMBER+@od1(rbaapc+19400))

27. The Miscegenation Ball, 1864 This lithograph is another way that their opponents attempted to humiliate the republican party and prove that they were “negro-lovers”. The members are shown here enjoying the company of black women. Source: http://www.loc.gov/pictures/item/2008661682/

28. Primary Source Analysis Tool • This form can be adapted for each specific application or kept generic. • For primary grades It can be changed to simply ask for sensory input. • For secondary grades specific probing questions can be asked to help focus the inquiry. http://www.loc.gov/teachers/usingprimarysources/resources/Primary_Source_Analysis_Tool.pdf

29. New Mexico • Ban in effect from 1857- 1866. • During WWII it was the location of many interracial marriages between Filipino men drafted into the army and white women. This was assisted by a catholic military chaplain, Father Noury. He assisted these couples to get loans to travel to NM from CA in order to marry. He did this specifically to ensure their families could receive support. • Why do you think that New Mexico did not follow other states in reinstituting anti-miscegenation laws? • What special circumstances allowed for New Mexico to be so far ahead of the rest of the country? • There were several other states that also repealed their laws early or never issued any bans. What could be some reasons for this?

30. Miscegenation Laws, 1865

31. Miscegenation Laws, 1875

32. Miscegenation Laws, 1900

33. Miscegenation Laws, 1869

34. Miscegenation Laws, 1939

35. View of Chinese Immigration http://memory.loc.gov/cgi-bin/query/r?ammem/cic:@field(DOCID+@lit(brk7639))

36. Miscegenation laws, 1880

37. Racial Coverage of Miscegenation Laws, 1939

38. Attempts to Pass Miscegenation Laws, 1913

39. Attempts to Pass Miscegenation Laws, 1927

40. Repeals, 1951-1965

41. Marriage Age Requirements Without consent With parental or judicial consent 6 states have different ages for Male v. Females 16 is average age w/ consent • Mississippi- Male- 17 Female-15 • All other states- 18

42. New Hampshire • A female can marry with judicial and parental consent at age 13. • A male can marry with judicial and parental consent at age 14. • Same sex couples must be 18. • Reasons for this difference? • No reason for it without pregnancy as a concern. • Still limiting rights of same sex couples.

43. Teaching Themes • Marriage as a contract • High/Low- Cultural and regional differences between states • State’s rights issue to make and enforce their own laws

44. Teaching Themes: WHY? Historically age of first marriage is increasing in the United States. What does this mean for the future of age restrictions to marriage?

45. Credits • Definition of miscegenation found at www.dictionary.com • Pascoe, P. (2009). What comes naturally: Miscegenation and the making of race in america. New York: Oxford University Press. • Multiple documents found at www.loc.gov individual sources found on slides.

47. DOMA Defense of Marriage Act May 23,1996 DOMA started its way through Congress in 1996 there was no state approved same-sex marriage. In September 1996 President Bill Clinton signed DOMA into law. Votes indicated that it would have become law even if he had vetoed it.

48. In support of DOMA • DOMA validates states’ rights to define marriage • DOMA validates traditional recognition of marriage between one man and one woman

49. 1996 Clinton and DOMA • September, 1996 President Bill Clinton signed DOMA into law. The bill was supported by 535 members of Congress. • Clinton stated that the Act confirmed the right of states to determine the issues of same-sex marriage. • The Act clarified the terms “marriage” and “spouse” for federal purposes. • Clinton stated that he opposed same-sex marriage, but discrimination, violence or intimidation violated equal protection under the law.

50. Federal Purposes • There are over 1,000 federal statues and programs tied to marriage. • The tax code dominates the use of the word marriage. • Social Security and inheritance have significant standing as do federal benefits and family structure when referring to marriage rights. • Health care decisions, death benefits, rites of burial, adoption, and child custody are all affected by the term marriage.