Mixed Race Studies

Anti-Miscegenation Laws in the United States

Duke Bar Journal (Duke Law Journal)
Volume 1, Issue 1 (1951)
pages 26-41

James R. Browning (1918-2012)

The word “miscegenation” is not included in the everyday vocabulary of a large part of our citizenry, but there are nonetheless laws in twenty-nine states prohibiting miscegenation. Etymologically, the term means intermarriage of persons of different races; when used in this paper, however, the word has reference to marriage between whites and non-whites.

Without suggesting an opinion on the desirability of anti-miscegenation laws, the writer proposes to sketch the provisions and effects of the present statutes on the subject. Various questions then arise: what is the purpose of such statutes and how effectively are they accomplishing that purpose? Also, what are the legal problems created in applying these laws?…

I. Provisions and Effects of Present Laws

The preceding chart presents a panorama of the statutory law of the twenty-nine states that have taken steps to prevent miscegenation. As one will note, the laws are about as varied as they are numerous; they disclose differing definitions of those in the prohibited class, the emphasis as to persons in this class significantly shifting with the geographical location of the states. All these states prohibit Negro-white marriages. Fourteen states, chiefly west of the Mississippi, forbid intermarriage of white and Mongoloid persons. Three states, Louisiana, North Carolina, and Oklahoma prohibit Negro-Indian intermarriage. Four states forbid Indian-white marriages. Six states consider racial intermarriage with such abhorrence that its prohibition is provided for in their Constitutions.

In contrast to the common law rule that issue of a void marriage are illegitimate, many states have statutes legitimating such issue. However, some legitimation statutes have been interpreted not to apply to children of miscegenous marriages; others, as indicated on the chart, have not been construed as to this point. Although the status of the issue is uncertain in many states, the marriages themselves seem generally to be void ab initio and not merely voidable…

The passing of the frontier, which provided one method of escape for the minority groups, and the ever increasing occasion for social contact in our present mobile society, serve as catalysts to the inter-group reaction and increase the awareness of the fact that some groups have not assimilated in certain areas. The opportunity of assimilation, which in the ultimate sense must include amalgamation, has been extended to Jewish, Italian and other white minorities; but colored groups-Black, Brown, Yellow and to a lesser extent Red-are considered unassimilable, and are denied intermarriage with whites.

The underlying animosity to colored minorities can be partially attributed to a desire in white groups to maintain economic and social advantages. Independent of this desire is a wish to avoid the physical consequences which are thought to flow from racial inter-marriage. Thus, as one court put it in upholding the constitutionality of an antimiscegenation statute:

“The amalgamation of the races is not only unnatural but is always productive of deplorable results.”

…The intimate relationship between the marital institution and the basic welfare of the States has been relied upon to justify close supervision by it of the matrimonial ventures of its domiciliaries. Without speculating as to the physical consequences of racial intermarriage, the writer suggests that the sociological effects upon the offspring must be considered. It may well be argued that the state, as parens patriae, has a privilege to bar marriage which would produce problem progeny. To apply this principle one can consider the situation of the child, of a mixed marriage.

If white and Negro intermarry, any children will normally be shunned by other whites if the child’s parentage is known; and the white parent may not be fully accepted by his child’s colored companions. Thus, a gap may develop in the home. More important, under the state segregation laws in many states the white parent will be barred by law from associating with his child in restaurants, theaters, and other public places. Will not the deprivation of the parent’s full companionship react adversely upon the child? This suggestion emphasizes that regulation of the family must take account of conditions of society with a view to producing normal children…

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