# Should interracial marriage have been kept illegal until Congress acted? **URL:** \ **Category:** Great Debates\ **Created:** [June 6, 2006, 3:16pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615 "2006-06-06T15:16:53Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Jebus\_H.Christ](https://avatars.discourse-cdn.com/v4/letter/j/6a8cbe/32.png) [@Jebus\_H.Christ](https://boards.straightdope.com/u/Jebus_H.Christ)\ **Post date:** [June 6, 2006, 5:45pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/21 "2006-06-06T17:45:30Z")
> [@John Mace](#): > > As much as I favor SSM, I just can’t pull that out of the 14th amendment. Think of it this way: Would the 14th amedment have passed either in 1868 or in 1967\* with the added clause: _This amendment forbids states from restricting marriage between racial or ethnic groups._ I think it would have passed in both time periods, but there is absolutely no question it would’ve passed in 1967. Now, ask yourself if the amendment would have passed in 1868 or in 2006 if this clause were added: _This amendment forbids states from restricting marriage between same sex partners._ No way. Not then and not now. I find it hard to construe the constitution is such a way that it not only means something different from what the drafters meant, but also different from what people today reasonably expect it to mean. That’s where I start calling something judicial activism (even if it results in an outcome I favor). I seriously doubt the 14th amendment could have passed in any form in 1967. The only reason the southern states passed it in 1868 was because they were required to to re-enter the Union. But in 1967 there was no such pressure. Look at the vote breakdown by state of the Civil Rights Act of 1964. Now do you still think that the version of the 14th amendment you gave would have a chance of getting enough state support to pass in 1967? What are you basing the idea that the version of the 14th you gave could have passed in 1868? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 6, 2006, 6:12pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/22 "2006-06-06T18:12:13Z")
> [@Jebus H. Christ](#): > > I seriously doubt the 14th amendment could have passed in any form in 1967. The only reason the southern states passed it in 1868 was because they were required to to re-enter the Union. You may be right, but keep in mind that \*Loving \*overturned a 1924 Virginia law, not an 1824 Virginia law. > [@](#): > > But in 1967 there was no such pressure. Look at the vote breakdown by state of the Civil Rights Act of 1964. Now do you still think that the version of the 14th amendment you gave would have a chance of getting enough state support to pass in 1967? But the civil rights act was about forcing people to integrate. \*Loving \*was about allowing people to inegrate. Two very different things. States were in the process of getting rid of or not enforcing anti-miscegenation laws. You might have said, in private, that you didn’t approve of interracial marriage, but it was very unusual to advocate for making it illegal. Not in 1967. Note that the SCOTUS was unanimous in it’s decision on _Loving_, and the decision didn’t create some huge controversy in the country. Contrast that to the situation today w/ SSM. Anti-SSM ballot initiatives have passed in almost every state they have been voted on. In fact, I’m not aware of a state that has failed to pass an anti-SSM law when put to the people. Imagine the furor if the SCOTUS found that the 14th amendment required states to legalize SSM. You’d get Bush’s anti-SSM marriage constitutional amendment approved so fast it would make your head spin. (At a minimum, an amendment allowing states to define marriage would pass.) > [@](#): > > What are you basing the idea that the version of the 14th you gave could have passed in 1868? There was considerably more racial equality in the country in the decades immediately after the war than there was 40 or 50 years later. And, as I said before, I think people’s attitudes about allowing the races to mix were different form their attitudes of forcing the races the mix. But I’m not saying it would have been a slam dunk. ---
**Author:** ![Tripwire](https://avatars.discourse-cdn.com/v4/letter/t/ccd318/32.png) [@Tripwire](https://boards.straightdope.com/u/Tripwire)\ **Post date:** [June 6, 2006, 6:26pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/23 "2006-06-06T18:26:13Z")
Google ads… on this thread: “Searching For Lesbians? We’ll Pay You $300 Right Now To Take A Quick Lesbian Survey!” I’m still not following you John. At one point, you’re arguing that courts must follow the law, (though if there are any principles enshrined in the law, those principles should not be applied as written but rather as we might imagine people of (today?!!) might intepret them). And then the next moment you’re arguing that the degree of public acceptance of something or the political fallout plays into how a court rules and how legitimate the decision is. Which is it? Are judges appealing to popular sentiments and ruling however public sentiment takes them, or defending principles outlined in laws regardless of whether those principle lead? ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [June 6, 2006, 6:31pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/24 "2006-06-06T18:31:54Z")
> [@John Mace](#): > > So what? Most oppostion to murder is based on religion. Says who? ---
**Author:** ![Jebus\_H.Christ](https://avatars.discourse-cdn.com/v4/letter/j/6a8cbe/32.png) [@Jebus\_H.Christ](https://boards.straightdope.com/u/Jebus_H.Christ)\ **Post date:** [June 6, 2006, 6:34pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/25 "2006-06-06T18:34:09Z")
> [@John Mace](#): > > YBut the civil rights act was about forcing people to integrate. \*Loving \*was about allowing people to inegrate. Two very different things. States were in the process of getting rid of or not enforcing anti-miscegenation laws. I can’t see any support for any federal action in regard to race that preempted a state law. It would have played as the federal government coming in an interfering with this matter and people’s way of life yet again. There is no way states in the South would have supported this. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 6, 2006, 6:41pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/26 "2006-06-06T18:41:35Z")
> [@Tripwire](#): > > I’m still not following you John. At one point, you’re arguing that courts must follow the law, (though if there are any principles enshrined in the law, those principles should not be applied as written but rather as we might imagine people of (today?!!) might intepret them). And then the next moment you’re arguing that the degree of public acceptance of something or the political fallout plays into how a court rules and how legitimate the decision is. Which is it? Are judges appealing to popular sentiments and ruling however public sentiment takes them, or defending principles outlined in laws regardless of whether those principle lead? I think justices rarely get too far ahead of popular sentiment. Whether they should get further ahead or stay more in line is not what I’m debating, per se. I personally favor a textual, originalist approach to the constitution along the lines of Scalia, but probably closer to Roberts (if you think there is a distinction). However, I’m trying to make the point that even if you favor a more expansive view of judicial authority (which I don’t), it’s hard for me to see how you would expand it so far that you would advocate pulling SSM out of the 14th amendment. As an example, look at one of the key arguments the courts made when they struck down laws that allowed the execution of minors. The justices claimed that the momentum was moving in that direction in that states were, on their own, striking down such laws. Now, I don’t agree with that reasoning, but what result do we get if we apply that type of reasoning to SSM? The momentum is most decidely moving in the direction of making SSM illegal. So, really the way I see it, the onus is on you to give a solid judicial reason for pulling SSM out of the 14th. If you can, let’s hear it. Simply saying that it’s only “just” to do so is not an argument. ---
**Author:** ![Tripwire](https://avatars.discourse-cdn.com/v4/letter/t/ccd318/32.png) [@Tripwire](https://boards.straightdope.com/u/Tripwire)\ **Post date:** [June 6, 2006, 7:04pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/27 "2006-06-06T19:04:54Z")
I didn’t say it was “just” despite you repeating that over and over. I said that a principle like equal protection can lead to decisions that the authors of the principle may not have anticipated. That’s the price of having principles: you might not always anticipate how they work out when you actually do the math. The alternative to having principles, however, is simply having judges make up the law as public sentiment warrants. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 6, 2006, 7:15pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/28 "2006-06-06T19:15:49Z")
Actually, the alternative is for judges to just make up laws as their sentiment warrants. Of course, they can keep to what the text meant to the people who wrote it (as best they can determine). That’s a principle, too, you know-- the principle of self governance. If the people want to change or expand the law beyond what the drafters meant, there is a mechanism for doing so readily at hand. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [June 6, 2006, 7:44pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/29 "2006-06-06T19:44:20Z")
> [@Kalhoun](#): > > They’re relevant because most opposition to SSM is based on religion. That or the Ick Factor. It’s totally relevant here. But nobody in this thread opposes SSM. We all know the Constitutional amendment is evil. The discussion is now about the legalities. ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [June 6, 2006, 7:51pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/30 "2006-06-06T19:51:12Z")
> [@RickJay](#): > > But nobody in this thread opposes SSM. We all know the Constitutional amendment is evil. The discussion is now about the legalities. And you don’t see the parallels? The parallels regarding the legalities? I don’t know what you’re saying here. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [June 6, 2006, 8:04pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/31 "2006-06-06T20:04:35Z")
For the legalities, you just need to conjure Thomas Jefferson: > [@Jefferson](#): > > The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. […] The government in which he lived was wise enough to see that this was no question of civil jurisdiction, or we should all have been involved by authority in vortices. In fact, the vortices have been exploded, and the Newtonian principle of gravitation is now more firmly established, on the basis of reason, than it would be were the government to step in, and to make it an article of necessary faith. Reason and experiment have been indulged, and error has fled before them. It is error alone which needs the support of government. Truth can stand by itself. Subject opinion to coercion: whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity. But is uniformity of opinion desireable? No more than of face and stature. Introduce the bed of Procrustes then, and as there is danger that the large men may beat the small, make us all of a size, by lopping the former and stretching the latter. […] Our sister states of Pennsylvania and New York, however, have long subsisted without any establishment at all. The experiment was new and doubtful when they made it. It has answered beyond conception. They flourish infinitely. Religion is well supported; of various kinds, indeed, but all good enough; all sufficient to preserve peace and order: or if a sect arises, whose tenets would subvert morals, good sense has fair play, and reasons and laughs it out of doors, without suffering the state to be troubled with it. They do not hang more malefactors than we do. They are not more disturbed with religious dissensions. On the contrary, their harmony is unparalleled, and can be ascribed to nothing but their unbounded tolerance, because there is no other circumstance in which they differ from every nation on earth. They have made the happy discovery, that the way to silence religious disputes, is to take no notice of them. Let us too give this experiment fair play, and get rid, while we may, of those tyrannical laws. It is true, we are as yet secured against them by the spirit of the times. I doubt whether the people of this country would suffer an execution for heresy, or a three years imprisonment for not comprehending the mysteries of the Trinity. But is the spirit of the people an infallible, a permanent reliance? Is it government? Is this the kind of protection we receive in return for the rights we give up? Besides, the spirit of the times may alter, will alter. Our rulers will become corrupt, our people careless. A single zealot may commence persecutor, and better men be his victims. It can never be too often repeated, that the time for fixing every essential right on a legal basis is while our rulers are honest, and ourselves united. From the conclusion of this war we shall be going down hill. It will not then be necessary to resort every moment to the people for support. They will be forgotten, therefore, and their rights disregarded. They will forget themselves, but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier, till our rights shall revive or expire in a convulsion. Of course he was talking about religious freedom, but it’s not hard to substitute same-sex marriage in. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [June 6, 2006, 8:30pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/32 "2006-06-06T20:30:43Z")
> [@Sage Rat](#): > > For the legalities, you just need to conjure Thomas Jefferson: Jefferson’s political commentaries do not have the force of law and do not constitute a precedent or even maxim binding on any court. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [June 6, 2006, 8:47pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/33 "2006-06-06T20:47:42Z")
> [@BrainGlutton](#): > > Jefferson’s political commentaries do not have the force of law and do not constitute a precedent or even maxim binding on any court. They do in fact. The Supreme Court bases its decisions on “the intentions of the founders” in order to determine constitutionality. The Constitution, the Bill of Rights, Declaration of Independence, The Federation Papers, and the other writings of the founders are all at the heart of how the country is meant to proceed and what is and isn’t legal. And that the government is barred from subscribing to any religion in the First Amendment is certainly true, and certainly law. And the reasoning for that law is the above quote; The government is required to only persecute that which can be shown to harm any other person beyond their sensibilities. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [June 6, 2006, 9:34pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/34 "2006-06-06T21:34:22Z")
> [@John Mace](#): > > Thems the breaks in a democracy. Good thing we’re a republic and not a pure democracy then, isn’t it ? The majority can’t do whatever the hell it wants to a minority. > [@John Mace](#): > > So what? Most oppostion to murder is based on religion. Oh, garbage. Opposition to murder is based on the desire not to get killed. Religion is far more likely to excuse and promote murder, instead of oppose it; 9-11 comes to mind. > [@John Mace](#): > > So, really the way I see it, the onus is on you to give a solid judicial reason for pulling SSM out of the 14th. That lack of a compelling state interest in forbidding same sex marriage, just as there is none for forbidding interracial marriage ? ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [June 6, 2006, 9:35pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/35 "2006-06-06T21:35:59Z")
> [@Der Trihs](#): > > **That lack of** a compelling state interest in forbidding same sex marriage, just as there is none for forbidding interracial marriage ? :smack: “_The_ lack of”. I previewed, I swear . . . ---
**Author:** ![Tripwire](https://avatars.discourse-cdn.com/v4/letter/t/ccd318/32.png) [@Tripwire](https://boards.straightdope.com/u/Tripwire)\ **Post date:** [June 6, 2006, 10:24pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/36 "2006-06-06T22:24:04Z")
> [@John Mace](#): > > Actually, the alternative is for judges to just make up laws as their sentiment warrants. > > Of course, they can keep to what the text meant to the people who wrote it (as best they can determine). That’s a principle, too, you know-- the principle of self governance. If the people want to change or expand the law beyond what the drafters meant, there is a mechanism for doing so readily at hand. What you are essentially saying is that we should not follow the principles and directives outlined in the laws. So if we pass a law saying “you can’t murder” and then some guy offs a Holocaust denier, and the people all say “oh, shit, we forgot to add that it’s okay to kill Holocaust denier! That’s what we really meant all along because that isn’t actually murder!” that its their intent, rather than the plain principle of the law that matters. As I said, the price of writing broad principles into a law is that sometimes applying those principles has effects the authors did not realize at the time. I’ve stated this point several times now, and you’ve either ignored it or pretended that I was talking about something else. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 6, 2006, 10:39pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/37 "2006-06-06T22:39:43Z")
> [@Tripwire](#): > > What you are essentially saying is that we should not follow the principles and directives outlined in the laws. So if we pass a law saying “you can’t murder” and then some guy offs a Holocaust denier, and the people all say “oh, shit, we forgot to add that it’s okay to kill Holocaust denier! That’s what we really meant all along because that isn’t actually murder!” that its their intent, rather than the plain principle of the law that matters. No, I’m not saying that and I can’t possibly imagine how you thought I did. Actaully, that’s more aligned with what you are saying, since you’re trying to interpret something into the law that was neither put there by the drafters back in the day, but seems to be desired by some small subset of the people now. > [@](#): > > As I said, the price of writing broad principles into a law is that sometimes applying those principles has effects the authors did not realize at the time. I’ve stated this point several times now, and you’ve either ignored it or pretended that I was talking about something else. So what? Prove to me that there is some broad principle in the constitution that demands that states recognize SSM. And be sure that your proof takes into consideration the “broad principles” inherent in the 10th amendment, too. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [June 7, 2006, 12:36am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/38 "2006-06-07T00:36:51Z")
> [@RickJay](#): > > This is off topic, but really, your statement here is false; interracial marriages had taken place in Western society and its antecedents for millennia. This past Sunday, the Gospel Doctrines class at my church discussed one case of intermarriage that’s in the Bible. Nobody in the Biblical story concerned considered the marriage to be invalid. ---
**Author:** ![Lilairen](https://avatars.discourse-cdn.com/v4/letter/l/8491ac/32.png) [@Lilairen](https://boards.straightdope.com/u/Lilairen)\ **Post date:** [June 7, 2006, 1:02am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/39 "2006-06-07T01:02:19Z")
> [@John Mace](#): > > Except that those arguments were in the minority. Thems the breaks in a democracy. I don’t mean to be flip about it, but serioiusly, that’s just the way the system works. Ask yourself these two questions: In how many states was interracial marriage illegal in 1967? In how many states is SSM illegal now? I’m not making an argument that numbers = moral correctness, but I am making the argument that numbers = legal correctness (in a democracy). Please note the distinction, as other posters have. Isn’t it the case that poll results at the time of Loving showed a population more opposed to interracial marriage in the United States than is currently the case for same-sex marriage? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 7, 2006, 1:17am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/40 "2006-06-07T01:17:58Z")
> [@Voyager](#): > > First of all, while I agree with your argument, for over 80 years no one saw the 14th Amendment as allowing interracial marriage - or no one who brought it to an approving Supreme Court. It certainly did not ban interracial marriage. Today, I agree, it seems obvious. Did the SCOTUS ever rule on racially discriminatory marriage laws prior to \*Loving \*(and after the passage of the 14th amendment)? I don’t think so. However, even in [_Loving_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1) the court argued that there is no clear evidence that the Congress which voted on the 14th amendment intended it to allow anti-miscegenation laws: > [@](#): > > The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.” Brown v. Board of Education, 347 U.S. 483, 489 (1954). See also Strauder [388 U.S. 1, 10] v. West Virginia, 100 U.S. 303, 310 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U.S. 184 (1964). [Previous page](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615.md?page=1) [Next page](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615.md?page=3)