Saturday, February 12, 2005

That Was Then; This Is Now. Now What?

Colbert I. King writes about marriage, society, and the law.

In 1905, when the Niagara Movement — forerunner to the NAACP — was born, nowhere was the color line more heat-tempered and rock-hard than when it came to sex. The prohibition against interracial marriage was a national obsession, enshrined in both law and tradition.

Consider this: As early as 1664, Maryland earned the distinction of becoming the first colony to ban marriages between blacks and whites. The other southern colonies played catch-up in the decades that followed. They weren’t alone. Pennsylvania and Massachusetts also joined the pack.

In the 19th century, interracial marriage was illegal in most states. As the Lambda Legal Defense and Education Fund noted in a brief in a New Jersey case, “by the 1960s, at least 41 states had enacted anti-miscegenation statutes.”

The arguments mounted against interracial marriage also had a familiar ring. Fact and God played heavily in the judgments.

The Georgia Supreme Court in 1869 based its interracial marriage ban on natural law, observing that “the God of nature made it otherwise, and no human law can produce it, and no human tribunal can enforce it.”

Hear the 1871 Indiana Supreme Court quoting an 1867 Pennsylvania decision: Racial separation is enacted not because of “prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts.”

The North Carolina Supreme Court in 1869 upheld the state’s anti-race mixing law, stating that “the policy of prohibiting the intermarriage of the two races is so well established, and the wishes of both races so well known.”


Now fast-forward past today to 100 years from now. How will future generations view our present-day fight against allowing monogamous couples with life commitments to each other to marry? What will they think of our rush to enact state laws prohibiting same-sex life partners from joining the same institution shared by different-sex couples? How will they regard our assertion that there is a public interest in promoting discrimination in the marriage statute?

Courts do not rule in a vacuum. None of these courts would have made these rulings if there had not been people – black and white – who put their lives and fortune in jeopardy by challenging these laws and the social structure of the time. It is they, not “activist judges,” who changed the laws and brought us forward.