Miscegenation Law, Court Cases, and Ideologies of “Race” in Twentieth-Century America
The Journal of American History
Volume 83, Number 1 (June, 1996)
pages 44-69
Peggy Pascoe (1954-2010), Beekman Professor of Northwest and Pacific History
University of Oregon
On March 21, 1921, Joe Kirby took his wife, Mayellen, to court. The Kirbys had been married for seven years, and Joe wanted out. Ignoring the usual option of divorce, he asked for an annulment, charging that his marriage had been invalid from its very beginning because Arizona law prohibited marriages between “persons of Caucasian blood, or their descendants” and “negroes, Mongolians or Indians, and their descendants.” Joe Kirby claimed that while he was “a person of the Caucasian blood,” his wife, Mayellen, was “a person of negro blood.”
Although Joe Kirby’s charges were rooted in a well-established—and tragic—tradition of American miscegenation law, his court case quickly disintegrated into a definitional dispute that bordered on the ridiculous. The first witness in the case was Joe’s mother, Tula Kirby, who gave her testimony in Spanish through an interpreter. Joe’s lawyer laid out the case by asking Tula Kirby a few seemingly simple questions:
Joe’s lawyer: To what race do you belong?
Tula Kirby: Mexican.
Joe’s lawyer: Are you white or have you Indian blood?
Kirby: I have no Indian blood.
. . . . . . . . . . . . . . . . . . . .
Joe’s lawyer: Do you know the defendant [Mayellen] Kirby?
Kirby: Yes.
Joe’s lawyer: To what race does she belong?
Kirby: Negro.
Then the cross-examination began.
Mayelien’s lawyer: Who was your father?
Kirby: Jose Romero.
Mayelien’s lawyer: Was he a Spaniard?
Kirby: Yes, a Mexican.
Mayellen’s lawyer: Was he born in Spain?
Kirby: No, he was born in Sonora.
Mayellen’s lawyer: And who was your mother?
Kirby: Also in Sonora.
Mayellen’s lawyer: Was she a Spaniard?
Kirby: She was on her fathers side.
Mayelien’s lawyer: And what on her mother’s side?
Kirby: Mexican.
Mayellen’s lawyer: What do you mean by Mexican, Indian, a native [?]
Kirby: I don’t know what is meant by Mexican.
Mayellen’s lawyer: A native of Mexico?
Kirby: Yes, Sonora, all of us.
Mayellen’s lawyer: Who was your grandfather on your father’s side?
Kirby: He was a Spaniard.
Mayellen’s lawyer: Who was he?
Kirby: His name was Ignacio Quevas.
Mayellen’s lawyer: Where was he born?
Kirby: That I don’t know. He was my grandfather.
Mayellen’s lawyer: How do you know he was a [S]paniard then?
Kirby: Because he told me ever since I had knowledge that he was a Spaniard.
Next the questioning turned to Tula’s opinion about Mayellen Kirby’s racial identity.
Mayellen’s lawyer: You said Mrs. [Mayellen] Kirby was a negress. What do you know about Mrs. Kirby’s family?
Kirby: I distinguish her by her color and the hair; that is all I do know.
The second witness in the trial was Joe Kirby, and by the time he took the stand, the people in the courtroom knew they were in murky waters. When Joe’s lawyer opened with the question “What race do you belong to?,” Joe answered “Well . . . ,” and paused, while Mayellen’s lawyer objected to the question on the ground that it called for a conclusion by the witness. “Oh, no,” said the judge, “it is a matter of pedigree.” Eventually allowed to answer the question, Joe said, “I belong to the white race I suppose.” Under cross-examination, he described his father as having been of the “Irish race,” although he admitted, “I never knew any one of his people.”
Stopping at the brink of this morass, Joe’s lawyer rested his case. He told the judge he had established that Joe was “Caucasian.” Mayellen’s lawyer scoffed, claiming that Joe had “failed utterly to prove his case” and arguing that “[Joe’s] mother has admitted that. She has [testified] that she only claims a quarter Spanish blood; the rest of it is native blood.” At this point the court intervened. “I know,” said the judge, “but that does not signify anything.”
From the Decline and Fall of Scientific Racism to an Understanding of Modernist Racial Ideology
The Kirbys’ case offers a fine illustration of Evelyn Brooks Higginbotham’s observation that, although most Americans are sure they know “race” when they see it, very few can offer a definition of the term. Partly for this reason, the questions of what “race” signifies and what signifies “race” are as important for scholars today as they were for the participants in Kirby v. Kirby seventy-five years ago. Historians have a long—and recently a distinguished—record of exploring this question. Beginning in the 1960s, one notable group charted the rise and fall of scientific racism among American intellectuals. Today, their successors, more likely to be schooled in social than intellectual history, trace the social construction of racial ideologies, including the idea of “whiteness,” in a steadily expanding range of contexts.
Their work has taught us a great deal about racial thinking in American history. We can trace the growth of racism among antebellum immigrant workers and free-soil northern Republicans; we can measure its breadth in late-nineteenth-century segregation and the immigration policies of the 1920s. We can follow the rise of Anglo-Saxonism from Manifest Destiny through the Spanish-American War and expose the appeals to white supremacy in woman suffrage speeches. We can relate all these developments (and more) to the growth and elaboration of scientific racist attempts to use biological characteristics to scout for racial hierarchies in social life, levels of civilization, even language.
Yet the range and richness of these studies all but end with the 1920s. In contrast to historians of the nineteenth- and early-twentieth-century United States, historians of the nation in the mid- to late-twentieth century seem to focus on racial ideologies only when they are advanced by the far Right (as in the Ku Klux Klan) or by racialized groups themselves (as in the Harlem Renaissance or black nationalist movements). To the extent that there is a framework for surveying mainstream twentieth-century American racial ideologies, it is inherited from the classic histories that tell of the post-1920s decline and fall of scientific racism. Their final pages link the demise of scientific racism to the rise of a vanguard of social scientists led by the cultural anthropologist Franz Boas: when modern social science emerges, racism runs out of intellectual steam. In the absence of any other narrative, this forms the basis for a commonly held but rarely examined intellectual trickle-down theory in which the attack on scientific racism emerges in universities in the 1920s and eventually, if belatedly, spreads to courts in the 1940s and 1950s and to government policy in the 1960s and 1970s.
A close look at such incidents as the Kirby case, however, suggests a rather different historical trajectory, one that recognizes that the legal system does more than just reflect social or scientific ideas about race; it also produces and reproduces them. By following a trail marked by four miscegenation cases —the seemingly ordinary Kirby v. Kirby (1922) and Estate of Monks (1941) and the path breaking Perez v. Lippold (1948) and Loving v. Virginia (1967)—this article will examine the relation between modern social science, miscegenation law, and twentieth-century American racial ideologies, focusing less on the decline of scientific racism and more on the emergence of new racial ideologies.
In exploring these issues, it helps to understand that the range of nineteenth- century racial ideologies was much broader than scientific racism. Accordingly, I have chosen to use the term racialism to designate an ideological complex that other historians often describe with the terms “race” or “racist.” I intend the term racialism to be broad enough to cover a wide range of nineteenth-century ideas, from the biologically marked categories scientific racists employed to the more amorphous ideas George M. Fredrickson has so aptly called ‘romantic racialism.” Used in this way, “racialism” helps counter the tendency of twentieth-century observers to perceive nineteenth-century ideas as biologically “determinist” in some simple sense. To racialists (including scientific racists), the important point was not that biology determined culture (indeed, the split between the two was only dimly perceived), but that race, understood as an indivisible essence that included not only biology but also culture, morality, and intelligence, was a compellingly significant factor in history and society.
My argument is this: During the 1920s, American racialism was challenged by several emerging ideologies, all of which depended on a modern split between biology and culture. Between the 1920s and the 1960s, those competing ideologies were winnowed down to the single, powerfully persuasive belief that the eradication of racism depends on the deliberate non-recognition of race. I will call that belief modernist racial ideology to echo the self-conscious “modernism” of social scientists, writers, artists, and cultural rebels of the early twentieth century. When historians mention this phenomenon, they usually label it “antiracist” or “egalitarian” and describe it as in stark contrast to the “racism” of its predecessors. But in the new legal scholarship called critical race theory, this same ideology, usually referred to as “color blindness,” is criticized by those who recognize that it, like other racial ideologies, can be turned to the service of oppression.
Modernist racial ideology has been widely accepted; indeed, it compels nearly as much adherence in the late-twentieth-century United States as racialism did in the late nineteenth century. It is therefore important to see it not as what it claims to be—the non-ideological end of racism—but as a racial ideology of its own, whose history shapes many of today’s arguments about the meaning of race in American society…
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