# 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:** 3
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [June 7, 2006, 3:08am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/41 "2006-06-07T03:08:58Z")
> [@John Mace](#): > > 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. Yes, [Pace v. Alabama](http://www.augustana.edu/Users/Podehnel/cases/PACE.htm) in 1883. ---
**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, 5:56am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/42 "2006-06-07T05:56:40Z")
> [@Freddy the Pig](#): > > Yes, [Pace v. Alabama](http://www.augustana.edu/Users/Podehnel/cases/PACE.htm) in 1883. That’s not about marriage. So, I stand by my original statement. AFAIK, \*Loving \*was the first time the SCOTUS ruled about racial restrcitions to marriage. If I’m wrong, I welcome being corrected. ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [June 7, 2006, 12:49pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/43 "2006-06-07T12:49:54Z")
> [@John Mace](#): > > That’s not about marriage. So, I stand by my original statement. AFAIK, \*Loving \*was the first time the SCOTUS ruled about racial restrcitions to marriage. If I’m wrong, I welcome being corrected. From **Freddy’s** cite: > [@](#): > > Section 4189 of the same code declares that “if any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, **intermarry** or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years.” (bolding mine) Looks like a marriage restriction to me. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [June 7, 2006, 1:14pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/44 "2006-06-07T13:14:19Z")
> [@Tripwire](#): > > If you oppose gay marriage, at least have the guts to look gay people in the eye and talk about them. For a lot of people, gays have nothing to do with marriage, so no need to look at them in the eye. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [June 7, 2006, 2:24pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/45 "2006-06-07T14:24:10Z")
Could _Loving_ have been decided without reference to the post-Civil War constitutional amendments? _Loving_ was based on a criminal law after wall, which is quite a different thing than being pro or anti SSM. It is one thing to say SS cannot marry and the state won’t issue a license for SS to marry, it is quite another to say that a marriage license lawfully issued in one state to two consenting adults of different sexes makes both those persons into criminals under Virginia law when they travel into Virginia. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [June 7, 2006, 2:45pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/46 "2006-06-07T14:45:38Z")
> [@John Mace](#): > > So what? Prove to me that there is some broad principle in the constitution that demands that states recognize SSM. First show proof that there is _any_ recognition of _any_ marriage in the Constitution. ---
**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, 4:39pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/47 "2006-06-07T16:39:00Z")
> [@Kalhoun](#): > > From **Freddy’s** cite: > > (bolding mine) > > Looks like a marriage restriction to me. I’m not certain that counts. Although the statute does contain language about marriage, the challenge in that particular case was against the charge of adultry and/or fornication (sex outside of marriage), not about marriage. Can the court address language in the statute that is not part of the challenged in the case at hand? I was basing my orginal assertion on this, from _Loving_ (emphasis added): > [@](#): > > This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. I assume by “this court” the writer means The Supreme Court (as an institution), not this particular grouping of Supreme Court Justices. **Hombrew** : I wouldn’t contend that there is any direct recognition of marriage in the constitution. However, the decision in \*Loving \*does now confir indirect recognition of marriage in the 14th amendment in as much as states cannot forbid marriage between people solely on the basis of race. I don’t believe, however, that \*Loving \*requires the states to recognize marriage at all if for some reason they chose not to, and if that non-recognition is applied without regard to race. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [June 7, 2006, 8:33pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/48 "2006-06-07T20:33:33Z")
Certainly, in a strict literal sense, the _Pace_ case didn’t address marriage; the statute was written in such a way as to render a marriage-based challenge pointless; since even a married interracial couple would still be in violation. But the case was widely viewed as legitimating anti-miscegenation laws in general, and there is no reason to think that a Court which blessed differential penalties for inter-racial fornication would have an issue with the ban on inter-racial marriage. I’m not sure how the thread got onto this track. Even an 1883 ruling doesn’t necessarily reflect the views of the Framers of the 14th. Racial and legal attitudes changed quickly after the demise of Reconstruction. The Supreme Court repeatedly interpreted the Fourteenth Amendment _very_ narrowly, from the _Slaughterhouse Cases_ through _Pace_ and _Plessy_, and beyond–probably more narrowly than most framers would have intended. So even though I’m confident that the Nineteenth Century Court _would_ have sustained an anti-mixed-marriage law, and for all _practical_ purposes did so in _Pace_, I don’t think that proves anything about the drafters’ intentions. The members of the 39th Congress who approved the Fourteenth Amendment, I believe, would have been divided on whether it banned anti-mixed-marriage laws. Charles Sumner probably would have said “yes”; Lyman Trumbull probably would have said “no”. There was little discussion since raising such a divisive topic would have hindered attempts to build the consensus necessary to achieve a two-thirds majority. ---
**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, 8:39pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/49 "2006-06-07T20:39:56Z")
**FtP** : I pretty much agree with your post. Sorry if I caused this thread to head in this direction. Perhaps I put too much weight on the thread title, which implied that if you disagree with a judicial solution in favor of SSM you disagree with _Loving_ (how many puns have there been about that one 🙂 ). ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [June 8, 2006, 10:30am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/50 "2006-06-08T10:30:14Z")
Please forgive if this is a hijack or if the answer is clear somewhere in this or other threads … When did SSM marriage become a Civil Right? There is more than 2000 years of history of a marriage between members of the opposite sex and homosexuality has been a fact just has long. What changed? ---
**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 8, 2006, 10:43am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/51 "2006-06-08T10:43:08Z")
> [@What the .... ?!?!](#): > > When did SSM marriage become a Civil Right? There is more than 2000 years of history of a marriage between members of the opposite sex and homosexuality has been a fact just has long. Slavery and the subjugation of women lasted much longer; that didn’t make them right. Something old and stupid is still stupid. > [@What the .... ?!?!](#): > > What changed? We became marginally more civilized. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 8, 2006, 10:53am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/52 "2006-06-08T10:53:30Z")
> [@What the .... ?!?!](#): > > Please forgive if this is a hijack or if the answer is clear somewhere in this or other threads … > > When did SSM marriage become a Civil Right? There is more than 2000 years of history of a marriage between members of the opposite sex and homosexuality has been a fact just has long. > > What changed? _Same-sex_ marriage is not a civil right, any more than the ability to pray in a Presbyterian church is. **Marriage** is, per C.J. Warren in _Loving_, a funamental right. Defining marriage as being between persons of differing sex from each other generally postdates the gay rights movement. Further, and contrary to some Republicans’ ultrastatist views, the U.S. is not founded on the idea that a beneficient government grants certain limited and specified rights to its subjects, but that the sovereign people create a government and cede limited powers to it. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 8, 2006, 12:34pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/53 "2006-06-08T12:34:03Z")
> [@Polycarp](#): > > Further, and contrary to some Republicans’ ultrastatist views, the U.S. is not founded on the idea that a beneficient government grants certain limited and specified rights to its subjects, but that the sovereign people create a government and cede limited powers to it. Correct, apart from the attribution of this notion to Republicans. The sovereign people of the United States have not ceded the right to create new definitions of marriage to the federal government, which right is reserved to the states, or the people, under the Tenth Amendment. Which is exactly the argument against the Supreme Court attempting to impose SSM on a country which clearly does not want it. To assume that the judiciary has the right to impose whatever it wants, unconstrained by the text of the Constitution or anything else, is an abandonment of the idea of limited government entirely. SSM as mandated by the feds is a clear example of the government telling the people what they can have, not vice versa, and certainly not an example of a Constitutional republic. Because the whole notion of a Constitution imposing limits on the federal government, and reserving all other rights to the states or the people, has been abandoned. Put it this way - I will accept that the Court has no constraints on it, and can interpret the Constitution to say whatever it likes. In return, I get to pick the justices for the next thirty years. And we both live with the results. Deal? Regards, Shodan ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 8, 2006, 12:35pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/54 "2006-06-08T12:35:51Z")
Oh, and this part - > [@](#): > > Defining marriage as being between persons of differing sex from each other generally postdates the gay rights movement. is something for which I will need a cite. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 8, 2006, 2:41pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/55 "2006-06-08T14:41:22Z")
> [@Shodan](#): > > Which is exactly the argument against the Supreme Court attempting to impose SSM on a country which clearly does not want it. What exactly is the nature of this imposition? Would anyone being forced to get married to a gay person, or something? What is anyone being forced to comply with? Can you, in fact, explain any fundamental difference vs. the Court’s ruling against miscegenation? Or do you hold that there is a right to discriminate that the government should not be allowed to strike down? > [@](#): > > SSM as mandated by the feds is a clear example of the government telling the people what they can have Right. It’s “telling” gays that they “can have” the same rights as straights. Period. Are you _against_ having personal rights be guaranteed by law, or is it just _this_ right? Your conclusion, a common one by the pro-discrimination forces, is in opposition to your stated principles, and its motivation is therefore fair game for speculation. ---
**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 8, 2006, 3:04pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/56 "2006-06-08T15:04:46Z")
> [@Polycarp](#): > > Defining marriage as being between persons of differing sex from each other generally postdates the gay rights movement. I don’t think that was always the case, but I do believe it often was. Why? Because people thought marriage should be between any two people or because the generally accepted definition of marriage was that it was between a man and a woman? In Warren’s decision, which definition do you think he had in mind, and why? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 8, 2006, 3:05pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/57 "2006-06-08T15:05:07Z")
> [@ElvisL1ves](#): > > What exactly is the nature of this imposition? Would anyone being forced to get married to a gay person, or something? What is anyone being forced to comply with? The right to define new rights, as reserved by the Tenth Amendment solely to the states or the people, is being imposed on. Sorry you missed it the first time I posted it. > [@](#): > > Can you, in fact, explain any fundamental difference vs. the Court’s ruling against miscegenation? Read **John Mace** ’s post. > [@](#): > > Or do you hold that there is a right to discriminate that the government should not be allowed to strike down? No, I am saying that there is a right to create (or “recognize”, if you prefer) rights that the federal government is not allowed to abrogate. > [@](#): > > Right. It’s “telling” gays that they “can have” the same rights as straights. Period. My experience is that when posters use this “this is how it is. Period.” construct, they have no new arguments and are trying to establish a position by vehemence. > [@](#): > > Are you _against_ having personal rights be guaranteed by law, or is it just _this_ right? Any right not established by the text of the Constitution as ratified, or the states, or the people. And this is not guaranteed by law, nor are the pro-SSM forces attempting to do so. Every time they try, the law (in the form of amendments to state constitutions and/or legislation) goes against them. Thus the push to get the Supreme Court to establish it by fiat, against the express will of the states or the people. > [@](#): > > Your conclusion, a common one by the pro-discrimination forces, is in opposition to your stated principles, and its motivation is therefore fair game for speculation. Well, if the genetic fallacy is the best you can do, knock yourself out. Regards, Shodan ---
**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 8, 2006, 3:19pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/58 "2006-06-08T15:19:43Z")
> [@Shodan](#): > > Any right not established by the text of the Constitution as ratified, or the states, or the people. And this is not guaranteed by law, nor are the pro-SSM forces attempting to do so. Every time they try, the law (in the form of amendments to state constitutions and/or legislation) goes against them. Note quite. The CA legislature voted to legalize SSM, but that vote was vetoed by Arnold. I suppose you could technically call a governor’s veto part of the legislative process, but I think you see my point. I do assume, btw, that you have absolutely no problem with SSM derived from legislative action. Right? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 8, 2006, 3:24pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/59 "2006-06-08T15:24:26Z")
> [@Shodan](#): > > The right to define new rights, as reserved by the Tenth Amendment solely to the states or the people, is being imposed on. Sorry you missed it the first time I posted it. It made no sense the last time, either. Marriage is NOT a new right, nor does anyone have a right to deny rights to others, in your stated philosophy. > [@](#): > > No, I am saying that there is a right to create (or “recognize”, if you prefer) rights that the federal government is not allowed to abrogate. Good. That means you have to recognize gays’ right to marry as equal to straights. But you don’t. > [@](#): > > My experience is that when posters use this “this is how it is. Period.” construct, they have no new arguments and are trying to establish a position by vehemence. It can also mean that differing views have no substance or rationality - as is the case here. > [@](#): > > Any right not established by the text of the Constitution as ratified, or the states, or the people. Read the Ninth Amendment. It’s short, won’t take you too long. > [@](#): > > And this is not guaranteed by law, nor are the pro-SSM forces attempting to do so. Every time they try, the law (in the form of amendments to state constitutions and/or legislation) goes against them. Not the law, or any defensible or even explicable principle, but simple politics at work. > [@](#): > > Thus the push to get the Supreme Court to establish it by fiat, against the express will of the states or the people. Bullshit. The right exists. It has been suppressed for some portion of the population, however, and the only effort here is to eliminate that discriminatory suppression. I did ask who was being imposed upon by that effort, as you proclaim, and you have nothing to offer, nothing, other than implicitly affirming that there is a “right” of some to deny rights to others. You react very strongly to being shown that your own stated principles require you to hold a position opposite that held by the party to whom you give your fealty. That \*should \* make you think a little more before posting more. ---
**Author:** ![Tripwire](https://avatars.discourse-cdn.com/v4/letter/t/ccd318/32.png) [@Tripwire](https://boards.straightdope.com/u/Tripwire)\ **Post date:** [June 8, 2006, 6:20pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/60 "2006-06-08T18:20:35Z")
> [@John Mace](#): > > 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. Again, you’ve simply refused to recognize what I’m saying. I’m not saying that we are interpreting the law, but rather applying its written meaning. YOU are claiming that if we do this, and discover that doing so leads to results we don’t like, we should toss out the law and pretend it really says something more like what we imagine the drafters of the law might have wanted it to achieve or not achieve. > [@](#): > > 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. Equal protection under the law. If Loving is going to do things like declare that marriage is a fundamental right, then the law can’t apply to some families and not others based on sexual orientation. When the 14th was drafted, I agree with you: I doubt they envisioned all the possible effects of this principle. But we are left with the choice of ignoring the principle or applying it. We don’t get to just do what feels popular right now. [Previous page](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615.md?page=2) [Next page](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615.md?page=4)