Hernandez v Robles New York County Clerk’s Index No. 103434/2004 Part 3










“Vindiecate the ways of of God, woman”





Entered according to Act of Congress, in the year 1854 by


in the Clerk’s Office of the District Court of the. United States for the Hastern District of Pennsylvania


“The same morning as was sat by the Dalphin-foimtain, and threw barley bread to the lame swan; he gave us this precept, with its glosses: that for the truth, perspicuity is the only ornament of style; the rhetorical. and that in the matter of the, piled and handy nakedness(nuditas palastrica) is better, for convection and dramatic drapery, for entertainment This plainness, which,said he again, la logical neatness, is grateful not to the popular, many, but to the philosophic few. He -then added somewhat abruptly, that public option is not the’ opinion of. the public Seeing some of the younger of us smile he explained at once. He simply meant, he said, that the popular, changed the philosophic, opinion; or that in other word the thinkers rule, and must be first convinced. The conference on the Greek Styles then ended; and we all rose, and left the fountain,”

Warrantees’ right to philosophic or educational power, order, and liberty is not yet actualized. If justice economically authorized it; the educational means or power might be added to wages. If not this; any other method following justice.

But political independently of economic justice, does not now authorize the systematic education of warrantees, The warranteeism of the United States South, is that with the ethnical qualification. The existence-rights of both or of one of these races, now forbids to the other, this progress- right. The educational is at present antagonistic to the political system. This antagonism is accidental and temporary. It is not necessary or natural to warranteeism. It is due to a temporary outside fact This fact is from an error which confounds essentials and accidentals; which is rather aggressive against the greater good essential, than progressive from the lesser had accidental. It is bad opposition from good disposition. It is philanthropy in design, and misanthropy in deed. But between warrantors and warrantees, there is naturally no educational antagonism. The educational and economic systems, are synta-gonistic. So algo, the political and educational systems; but this, only after the political fact as it is, shall be the political fact as it ought to be.




In the United States South, the rights of Warrantees under the political system, we such as are just. Their political status is not wrong. It is right; it is from duty; it is a moral necessity. They have now the political power, order, and liberty to which they are rightly entitled; neither more nor less.

In the civil government of republics, the people are the sovereign. They are the supreme orderer. But republics are representative governments; the sovereign people constitute representatives. These representatives in their capacity as such, are magistrates; or supersovereign. In the political system, they are the orderers. They adapt and regulate. But all the people are not sovereign or supersovereign. Some only are sovereign. These are such alone as are peculiarly qualified. They must be males. They must be of a certain age. They must be of sound mind. They must be residents. In some commonwealth, property qualifications, are necessary; in some, religious qualifications. There may be other qualifications just or unjust.

All other people in the State, who are not sovereign people, are subsovereign. To this class belong women, minors, criminals, lunatics and idiots, aliens, and all others unqualified or disqualified.

Such, the three classes of people. In republics, all are represented. The representatives or orderers, represent and are responsible to their constituents, the sovereign people. But these are not constituents only; they likewise represent the class of subsovereign people; these are constituents of these. A man represents his family. This is special; he also represents the interests of other subsovereigns; this, his general duty.

The representation of all is thus actualized.

Duties are coupled to relations. By the common law, a, natural person’s relations under the civil government are public or private By the common law, private relations are those of master and servant, husband and wife, patent and child, guardian and ward.

In warrantee commonwealths, public relations are those of magistrates and people; or orderers and orderees. Magistrates are legislators, executors and adjudicators. To these the relations of the people, are those of orderees. The people are therefore, legislatees, executees and adjudicatees. The magistrates are adapters and regulators; the people, adaptees and regulatees.

In republics in which the warranteeism is that with the ethnical qualification, the warrantees are subsovereign. They, have not the right of sovereignty. That is not their due; it is unjust; it is wrong. Warrantees have the right of representation. But they have not the right of political constitution. Neither ought they; they are not entitled to it Subsovereignty is the right of warrantees. Their sovereignty is the wrong of warrantors, and others.

In the warrantee commonwealths of the United States who therefore, ought to be the sovereign people? Who ought to be the supreme power in the warrantee States? There, warranteeism with the ethnical qualification is ordained and established. What is the effect of this qualification ? The people are of two races. They are ethnically related to each other. But because every act has a moral quality; with every relation, duties are coupled. These races in their ethnical relations, differ from each other in beauty; in color; in the inclination, shape, and direction of the pile; in the conformation of their body, and in other physiological respects.

The black race must be civilly either (1), Subsovereign, (2), Sovereign, or (3), Supersovereign. If not Subsovereign, they must be co-sovereign. The white race may also be Subsovereign, sovereign,, or supersovereign. If both races are promiscuously sovereign; that is co-sovereignty. The white race is now and has been sovereign ; the black, subsovereign. This, the historical fact.

The black race ought not to be admitted to co-sovereignty. It. is wrong: it is in violation of moral duty.

These races physiologically must be either equal or unequal. They must be either peers ethnically, or not peers. If not peers ethnically, the black race must be either superior or inferior. If superior, their ethnical progress forbids amalgamation with an inferior race. If the white race is superior; their ethnical progress forbids intermix tare frith an inferior race.

But races must progress. Men have not political or economic duties only. They have hygienic duties. Hygiene is both ethnical and ethical; moral duties are coupled to the relation of races. Races must not be wronged. Hygienic progress is a right. It is a right, because a duty. But hygienic progress forbids ethnical regress. Morality therefore, which commands general progress, prohibits this special regress. The preservation and progress of a race, is a moral duty of the races. Degeneration is evil It is a sin. That sin is extreme. Hybridism is heinous Impurity of races is against the law of nature. Mulattoes are monsters The law of nature is the law of God. The same law which forbids consanguineous amalgamation; forbids ethnical amalgamation. Both are incestuous. Amalgamation is incest.

But the relation of the two races to each other, is moral: every relation has an ethical quality: ethics is ethnic. Moral hygienic duties must not be violated. For progress must he developed, and regress, enveloped. Polity therefore—the duty of the State—prohibits the sovereignty of the black race. Because, if the black race are sovereign, they must he. co-sovereign. If not politically subordinate or superordinate; they must be politically coordinate. But the black and white race must not be co-sovereign; they must not be politically coordinate. They must be, the one subordinate, and the other, superordinate. They must not be aggregated; they must be segregated. They must be civilly pure and simple from each other. This is a hygienic ethnical necessity. It is the duty, of caste to prevent amalgamation: it is, caste for the purity of races. for, political amalgamation is ethnical amalgamation, One makes the other: that is the immediate, invariable antecedent of this. Subsovereignty is necessary for segregation, and both necessary to duty.




Political amalgamation is sexual amalgamation: one is a cause of the other. There must be either caste or co-sovereignty : this is the alternative to that For power to rule, is power to marry, and the power to repeal or annul discriminating laws.

In States, the intercourse of sexes is either (1), Lawful or (2), Unlawful. Marriage is lawful intercourse. Of two races in a State, marriage may be (1), Between males and females of the same race; (2), Between males of one race and females of the other race; or, (3), Miscellaneously, between males and females of both races.

Of marriage, the motives or springs of action are such as are either (1), Matrimonial, or, (2), Extramatrimonial. Love is a matrimonial motive. Extramatrimonial motives are such as avarice or the desire of wealth; and ambition or the desire of power.

If therefore, marriage miscellaneously between too races, is lawful; the motives will he both matrimonial and extramatrimonial. Females of the inferior will elect males of the superior race. This, from natural preference, which is matrimonial; or from ambition, which is extra-matrimonial. Males of the superior race will from avarice, ambition, or other extramatrimonial motives, elect females of the inferior race. These motives are certain; and certainly of motive, is certainty of movement; certainty of cause, certainty of effect If therefore, intermarriage of races, is lawful; intermarriage will he actual the cause, curtain; the effect will he certain. The law must


Black-White Intermarriage inimage14

American History, Literature, and Law


Edited by

Werner Sollors








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Library of Congress Cataloging-in-Publication Data

Interracialism : Black-white intermarriage in American history,

literature, and law / edited by Werner Sollors.

p. cm.

Includes bibliographical references and index.

ISBN 0-19-512856-7; ISBN 0-19-512857-5 (pbk.)

1. Interracial marriage—United States—History.

2. Miscegenation—United States—History. 3. Racially mixed people—United States—History. 4. Miscegenation—Law and legislation—United States—History. 5. Miscegenation in literature. 6. Racially mixed people in literature. I. Sollors, Werner.

HQ1031.I8 2000

306.84’6’0973—dc21  99-32521

9 8 7 6 5 4 3 2

Printed in the United States of America

on acid-free paper

In memoriam

A. Leon Higginbotham, Jr.

(February 25, 1928–December 14, 1998)

Miscegenation Law, Court Cases,
and Ideologies of “Race” in
Twentieth-Century America*




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.”1 

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.


Mayellen’s lawyer: Who was your father?

Kirby: Jose Romero.

Mayellen’’s lawyer: Was he a Spaniard?

Kirby: Yes, a Mexican.

Mayellen’s lawyer: Was he bom in Spain?

Kirby: No, he was born in Sonora.

Mayelien’s lawyer: And who was your mother?

Kirby: Also in Sonora.

Mayellen’s lawyer: Was she a Spaniard?

Kirby: She was on her father’s side.

Mayellen’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.2


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.”3 

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] 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.”9 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 nonrecognition 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.10

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 nonideological 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.

The Legacy of Racialism and the Kirby Case


Although it is probably less familiar to historians than, say, school segregation law, miscegenation law is an ideal place to study both the legacy of nineteenth- century racialism and the emergence of modern racial ideologies.11 Miscegenation laws, in force from the 1660s through the 1960s, were among the longest lasting of American racial restrictions. They both reflected and produced significant shifts in American racial thinking. Although the first miscegenation laws had been passed in the colonial period, it was not until after the demise of slavery that they began to function as the ultimate sanction of the American system of white supremacy. They burgeoned along with the rise of segregation and the early-twentieth-century devotion to “white purity.” At one time or another, 41 American colonies and states enacted them; they blanketed western as well as southern states.12

By the early twentieth century, miscegenation laws were so widespread that they formed a virtual road map to American legal conceptions of race. Laws that had originally prohibited marriages between whites and African Americans (and, very occasionally, American Indians) were extended to cover a much wider range of groups. Eventually, 12 states targeted American Indians, 14 Asian Americans (Chinese, Japanese, and Koreans), and 9 “Malays” (or Filipinos). In Arizona, the Kirby case was decided under categories first adopted in a 1901 law that prohibited whites from marrying “negroes, Mongolians or Indians”; in 1931, “Malays” and “Hindus” were added to this list.13

Mixed Race America and the Law


A Reader


Kevin R. Johnson

New York University Press




New York and London


© 2003 by New York University

All rights reserved


Library of Congress Cataloging-in-Publication Data

Mixed race America and the law: a reader / edited by Kevin R. Johnson,

p. cm. — (Critical America series)

Includes bibliographical references and index.

ISBN 0-8147-4256-4 (cloth: alk paper) —

ISBN 0-8147-4257-2 (pbk: alk paper)

1.Racially mixed people—Legal status, laws, etc.—United States.

2. Mescegenation—United States. 3. Racially mixed people—

Government policy—United States.

1. Johnson, Kevin R. II. Critical America.

KF4755 M59 2002

346.7301’3—dc21 2002011775


New York University Press books are printed on acid-free paper, and their

binding materials are chosen for strength and durability.


Manufactured in the United States of America

10 9 8 7 6 5 4 3 2 1

American Mestizo

Filipinos and Anti-Miscegenation Laws in California


Leti Volpp

… By the time the Supreme Court finally declared anti-miscegenation laws unconstitutional in Loving v. Virginia, thirty-nine states had enacted anti-miscegenation laws; in sixteen of these states, such laws were still in force at the time of the decision. While the original focus of these laws was primarily on relationships between blacks and whites, also prohibited were marriages between whites and “Indians” (meaning Native Americans), “Hindus” (South Asians), “Mongolians” (into which were generally lumped Chinese, Japanese, and Koreans), and “Malays” (Filipinos). Nine states—Arizona, California, Georgia, Maryland, Nevada, South Dakota, Utah, Virginia, and Wyoming—passed laws that prohibited whites from marrying Malays. The statutes varied in their enforcement mechanisms: some simply declared miscegenous marriages void; others punished them as felonies.


I. California: Asian Invasions


In 1850, California enacted a law prohibiting marriages between “white persons” and “negroes or mulattoes.” Twenty-eight years later, a referendum was proposed at the California Constitutional Convention to amend the statute to prohibit marriages be- tween Chinese and whites. While the so-called “Chinese problem” was initially conceptualized as one of economic competition, created by the importation of exploitable laborers without political rights, the issue of sexual relationships between whites and Chinese also functioned as a prime site of hysteria.

Invoked were fears of hybridity. John Miller, a state delegate, speculated that the “lowest most vile and degraded” of the white race were most likely to amalgamate with the Chinese, resulting in a “hybrid of the most despicable, a mongrel of the most detestable that has ever afflicted the earth.”1 Miscegenation was presented as a public health concern, for Chinese were assumed by most of the delegates to be full of “filth and disease.” Some argued that American institutions and culture would be overwhelmed by the habits of people thought to be sexually promiscuous, perverse, lascivious, and immoral. For example, in 1876 various papers stated that Chinese men attended Sunday school in order to debauch their white, female teachers. In response to the articulation of these fears, in 1880 the legislature prohibited the licensing of marriages between “Mongolians” and “white persons.”2

The next large group of Asian immigrants—those from Japan—was also the subject of antagonism, leading to further amendment of the anti-miscegenation laws. While the impetus for tension was, again, economic, two prime sites of expressed anxiety were school segregation and intermarriage. Those who sought school segregation depicted the Japanese as an immoral and sexually aggressive group of people and disseminated propaganda that warned that Japanese students would defile their white classmates. The Fresno Republican described miscegenation between whites and the Japanese as a form of “international adultery,” in a conflation of race, gender, and nation. In 1905, at the height of the anti-Japanese movement, the state legislature sealed the breach between the license and marriage laws and invalidated all marriages between “Mongolian” and white spouses.3


II “Little Brown Men”


Tension over the presence of Chinese and Japanese had led to immigration exclusion of Chinese and Japanese laborers through a succession of acts dating between 1882 and 1924. Because industrialists and growers faced a resulting labor shortage, they began to import Filipinos to Hawaii and the mainland United States. Classified as “American nationals” because the United States had annexed the Philippines following the Filipino-American War, Filipinos were allowed entry into the country. On the mainland, a majority of Filipinos resided in California, with sizable numbers also in Washington and Alaska. By 1930 the number of Filipinos on the mainland reached over forty-five thousand. During the winter they stayed in the cities—working as domestics and gardeners, washing dishes in restaurants, and doing menial tasks others refused. In the summer they moved back to the fields and harvested potatoes, strawberries, lettuce, sugar beets, and fruits….

On the mainland, 93 percent of all who emigrated from the Philippines were males, the vast majority between sixteen and thirty years of age. While some scholars have focused on patriarchal Asian values as the reason for early Asian migration being an almost exclusively male phenomenon, others have pointed to labor recruiting patterns and the specifics of immigration laws themselves as restricting the immigration of Asian women. United States capital interests wanted Asian male workers but not their families, because detaching the male worker from a heterosexual family structure meant he would be cheaper labor.

The Filipinos lived in barracks, isolated from other groups, allowed only dance halls, gambling resorts, and pool rooms of Chinatown as social outlets. They led ostracized lives punctuated by the terror of racist violence. Many restaurants and stores hung signs stating, “Filipinos and dogs not allowed.”4 Anxiety about what was called the “Third Asian Invasion” was expressed primarily around three sites: first, the idea that Filipinos were destroying the wage scale for white workers; second, the idea that



Sex, Marriage, Identity, and Adoption



Vintage Books

A Division of Random House, Inc.

New York



Copyright © 2003 by Randall Kennedy


All rights reserved under International and Pan-American Copyright Conventions. Published in the United States by Vintage Books, a division of Random House, Inc., New York, and simultaneously in Canada by Random House of Canada Limited, Toronto. Originally published in hardcover in the United States by Pantheon Books, a division of Random House, Inc., New York, in 2003.


Vintage and colophon are registered trademarks of Random House, Inc.


Grateful acknowledgment is made to the following for permission to reprint previously published material: HarperCoilins Publishers, Inc.: Excerpt from The Collected Poems of Sterling A. Brown edited by Michael S. Harper. Copyright © 1980 by Sterling A. Brown. Reprinted by permission of HarperCoilins Publishers, Inc.


The Library of Congress has cataloged the Pantheon edition as follows:

Kennedy, Randall

Interracial intimacies: sex, marriage, identity, and adoption / Randall Kennedy.

p. cm.

Includes bibliographical references and index.

1. Interracial Marriage—Law and legislation—United States, 2. Miscegenation—Law and legislation—United States. 3. Interracial adoption—United States.

I. Tide.

KF511.K46 2003 346.73016—DC21 2002072786


Vintage ISBN: 375-70264-4


Book design by Johanna S. Roebas




Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

This book is dedicated to my dutiful, wise, loving parents,

Henry Harold Kennedy Sr. and Rachel Spann Kennedy.

From the early eighteenth century onward, all antimiscegenation laws in British North America prohibited blacks and whites from marrying one another. Other like prohibitions were imposed upon Native Americans and people of Chinese, Japanese, Filipino, Indian, and Hawaiian ancestry.* Since the founding of the United States, there have been no laws enacted against Christians marrying Jews or against interethnic marriages. In the nineteenth century, many groups that are now classified as ethnic “whites” were thought of as distinct races, among them Jews, Irish, Italians, and Hungarians.17 Despite the intense social discriminations sometimes practiced against specific ethnic identities—think, for example, of signs reading “No Irish need apply”—state governments never prohibited interethnic marriages among whites. This fact further underscores the unique status of “color” in American life. Although social’ pressures have been widely brought to bear to discourage, interethnic marriage, state power was mobilized only when authorities feared that people might marry across the color line.

Antimiscegenation laws varied widely by jurisdiction. Prior to the Civil War; officials in some states punished only whites for crimes of interracial intimacy. This approach was probably rooted in two beliefs: first, that blacks were too irresponsible and too inferior to punish, and second, that it was whites’ responsibility to protect the purity of their own bloodlines. This latter belief was closely related to yet another status distinction embedded in antebellum laws regulating intimacy: a gender differential. White women were anointed as the primary gatekeepers of white racial purity, and as such, they became the members of the white community who could, with self-evident justice, be most severely penalized for racial transgressions. Violations included, in ascending order of perceived perfidiousness, having sex across racial lines, marrying across racial lines, and giving birth to a mixed-race baby. Hence, the racial regulation of intimacy has not only pitted white people against colored people; it has also set men against women, both across racial lines and within racial groups.

After the Civil War; to comply with new federal requirements regarding formal racial neutrality, some state authorities felt compelled to mete out to blacks who married interracially the same punishment that was imposed on their white spouses.18 No less ironic was the fact that in at least some jurisdictions, antimiscegenation laws were likely enforced more stringently after the Civil War than before it. The institution of slavery had given the collective ego of whites such a massive boost that many of them were willing to overlook infractions of racial regulations, even to the extent of turning a blind eye on interracial romantic involvements. The abolition of slavery, however, and the assertion of civil and political rights by blacks during Reconstruction, dealt a tremendous blow to the racial self-esteem of southern whites in particular: Many compensated by insisting upon a relentless and exacting observance of both formal and informal rules of racial caste. One hallmark of this period was enhanced criminal enforcement of antimiscegenation laws and every other restriction that reinforced the lesson of white supremacy and black subordination, white purity and black contamination.19

Some states, for example, punished those who performed interracial marriages. Mississippi went even further criminalizing not only interracial marriage but even the advocacy of “social equality or of intermarriage between whites and negroes.” * Punishments for the vio-


1 Amici recognize that the long history of racial discrimination in this country extended well beyond restrictions on marriage rights.

2 Of course, affluent people could avoid certain consequences of the antimiscegenation laws. For example, John Mercer Langston, the first African American to be elected to public office and the founder in 1868 of the Howard University School of Law, was able to succeed to the wealth of his white father (and the opportunities that such wealth would enable) as a result of his father’s capacity to contract around certain consequences of Virginia’s anti-miscegenation laws to ensure that his children would inherit his wealth. Upon their parents’ deaths, those children, including John Mercer Langston, were taken in by a family friend in a free state — Ohio. (See John Mercer Langston Bar Assn web site <www.jmlba.org/JMLBio.htm> [last accessed August 3, 2005]; Kansas St Hist Soc’y web site <www.kshs.org/publicat/ history/1999winter_sheridan.htm> [last accessed August 3, 2005]). Similarly, same-sex couples of means who are denied the right to marry can, with respect to at least a certain few of the benefits attendant to marriage (i.e., rights of succession), contract for the same, albeit privately and at great expense. This juxtaposition highlights yet another dimension to the inequity that flows from the deprivation of equal marriage rights — a built-in preference for those affected persons of means

3 Clearly, a lengthy catalog of discriminatory law cannot, as apparently argued by Appellants in their brief (at 30-37), effectively justify the perpetuation of the discrimination in question. Not one iota of the resoundingly “democratic” bigotry expressed through statutes, public opinion and legal decisions rendered the same constitutionally permissible.

4 In its amicus brief (at 15 n 1), the New York State Catholic Conference cites Justice Scalia’s dissent in Casey (505 US at 980 n 1), asserting that the Equal Protection clause of the Federal Constitution “explicitly establishe[d] racial equality as a constitutional value.” The Catholic Conference does so to support its effort to take the anti-miscegenation laws entirely out of the context of a “fundamental right to marry” analysis, as does the United Families International in its amicus brief (at 18) where it declares that the anti-miscegenation laws “must be seen as a logical extension of racial law, not of marriage law.” But, as set forth by the California Supreme Court when it struck down California’s anti-miscegenation law, “[t]he equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals.” (Perez, 32 Cal 2d at 716, 198 P2d at 20). Furthermore, as set forth in Points I.A. & I.B. above, after its ratification and until Loving, many courts rejected claims that the Fourteenth Amendment prohibited interracial marriage.
Finally, the claims that the decision below is a “betrayal” of Perez and Loving and that the struggle of same-sex couples for equal civil marriage rights is analogous in any way to “the white supremacists’ marriage project” (United Families International amicus brief at 21-24) are preposterous. Just as Perez and Loving prohibited discriminatory views about proper marriage partners from interfering with individuals’ fundamental right to marry their loved one, so too must discriminatory views about the sex of marital partners be prohibited from interfering with what is being sought here – the ability of individuals to marry the one person they love.

5 As the court below set forth in ruling the prohibition of marriage for same-sex couples to be unconstitutional: “The challenges to laws banning whites and nonwhites from marriage demonstrate that the fundamental right to marry the person of one’s choice may not be denied based on longstanding and deeply held traditional beliefs about appropriate marital partners.” (Hernandez, 7 Misc 3d at 461).

6 The New York State Catholic Conference argues in its amicus brief (at 25-26) that the anti-miscegenation laws differ from gender-based marriage laws because the former were enacted with the intent to “stigmatize[] blacks as inferior to whites.” For many of the reasons set forth in great detail in this brief, the New York State Catholic Conference’s reasoning here is flawed. (See e.g. Points I.A and II.A.2). In any event, the anti-miscegenation laws prohibited interracial marriage in the same way the current law of New York bars same-sex couples from the institution of civil marriage. In both contexts, adult citizens are denied liberty and privacy rights, indeed they are denied their fundamental right to choose the individual whom they wish to marry.

7 From Carter G. Woodson, “The Beginnings of Miscegenation of the Whites and Blacks.” The
Journal of Negro History 3.4 (October 1918): 335-353

8 MacDonald, Trade, Politics and Christianity in Africa and the East, chapter on inter-racial marriage, p. 239; and The Journal of Negro History, pp. 329, 334-344.

9 Report of First Racc[s] Congress, 1911, p. 330 [probably G. Spiller, ed., Papers on Inter-Racial Problems Communicated to the First Universal Races Congress Held at the University of London, July 26– 29, 1911 (London: P. S. King & Son, 1911) —Ed.]; MacDonald, Trade, Politics, and Christianity, p. 235; and Contemporary Review, August, 1911.

10 3 Report of First Races Congress, 1911, p. 330

11 Johnston, The Negro in the New World, p. 98.

12 5 Ibid., p. 78

13 6 Ibid.., pp. 98-99

14 Authorities consider the Amerindians the most fecund stock in the country, especially when mixed with an effusion of white or black blood. Agassiz, A Journey in Brazil in 1868.

15 Johnston, The Negro in the New World, p. 135

16 9 Code Noir

17 Brackett, The Negro in Maryland, pp. 32–33

18 Benjamin Banneker’s mother was a white woman who married one of her own slaves. See Tyson,
Benjamin Banneker, p. 3.

19 12 Archives of Maryland, Proceedings of the General Assembly, 1637–1664, pp. 533-534.

20 (a) Calhoun, A Social History of the American Family, p. 94
21 13 Harris and McHenry Reports, I, pp. 374, 376; II, pp. 26, 38, 214, 233

22 Hurd, Law of Freedom and Bondage, VI, pp. 249–250

23 McCormac, White Servitude in Maryland, p. 70

24 Act of Assembly, Oct., 1727

25 Dorsey, The General Public Statutory Law and Public Local Law of State of Maryland, from 1692—1839, p. 79

26 Ballagh, White Servitude in the Colony of Virginia, pp. 72, 73.

27 Hening, The Statutes at Large, I, pp. 146, 552. II, 170; III, pp. 86-88, 252

28 20 Hening, Statutes at Large, VI, pp. 360–362

29 Meade, Old Churches and Families of Virginia, I, p. 366

30 Russell, Free Negro in Virginia, pp. 138-139
31 Bassett, Slavery and Servitude in North Carolina, p. 83
32 Ibid., pp. 58-59. See also Natural History of North Carolina, p. 48; and Hawk’s History of North
Carolina, II, pp. 126-127

33 Potter, Revised Lam of North Carolina, I., p. 130
34 Ibid., I, p. 157
35 Massachusetts Charters, etc., p. 747; Hurd, Law of Freedom and Bondage, VI, p. 262
36 Turner, The Negro in Pennsylvania, pp. 29–30

37 Ibid., p. 30

38 The American Weekly Mercury (Philadelphia), August 20, 1720

39 The Pennsylvania Gazette, June 1, 1749

40 Statutes at Large, TV, p. 62

41 Turner, The Negro in Pennsylvania, p. 31


42 Branagan, Serious Remonstrances, pp. 68, 69, 70, 71, 73, 74, 75, 102; Somerset Whig, March 12,
1818, and Union Times, August 15, 1834

43 Journal of Senate, 1820-1821, p. 213; and American Daily Advertiser, January 23, 1821

44 Proceedings and Debates of the Convention of 1838, X, p. 230

45 The Spirit of the Times, October 10, 11, 12, 13, 17, 19, 1849

46 Harriet Martineau, Views of Slavery and Emancipation, p. 10

47 Hart, Slavery and Abolition, p. 182; Censuses of the United States

48 Abdy, North America, I, p. 160

49 Child, Anti-slavery Catechism, p. 17; 2 Howard Mississippi Reports, p. 837

50 Kemble, Georgian Plantation, pp. 140, 162, 199, 208–210; Olmstead, Seaboard States, pp. 599– 600; Rhodes, United States, I, pp. 341–343

51 Goodell, Slave Code, pp. 111–112

52 Harriet Martineau, Views of Slavery and Emancipation, p. 13

53 Featherstonaugh, Excursion, p. 141; Buckingham, Slave States, I, p. 358

54 Writing of conditions in this country prior to the American Revolution, Anne Grant found only two cases of miscegenation in Albany before this period but saw it well established later by the British soldiers. Johann Schoepf witnessed this situation in Charleston in 1784. J. P. Brissot saw this tendency toward miscegenation as a striking feature of society among the French in the Ohio Valley in 1788. The Duke of Saxe-Weimar-Eisenach was very much impressed with the numerous quadroons and octoroons of New Orleans in 1825 and Charles Gayarré
portrayed the same conditions there in 1830. Fredrika Bremer frequently met with this class while touring the South in 1850. See Grant, Memoirs of an American Lady, p. 28; Schoepf, Travels in the Confederationt II, p. 382; Brissot, Travels, II, p. 61; Saxe-Weimar, Travels, II, p. 69; Grace King, New Orleans, pp. 346-349; Fredrika Bremer, Homes of the New World, I, pp. 325, 326, 382, 385


55 Ibid., XXII, p. 98


56 See Russell, Free Negro in Virginia, p. 127


57 Goodell, Slave Code, p. 376

58 The Liberator, December 19, 1845

59 Swisshelm, Half a Century, p. 129

60 * From William D. Zabel, “Interracial Marriage and the Law.” Atlantic Monthly (October 1965): 75– 79

61 Report of Debates of the Convention for Revision of the Constitution I, 563; II, 1933.

62 Jociah C, Nott, “The Mulatto a Hybrid,” American Journal of Medical Science, new series 6 (1843), 252-256; Stanton, Leopard’s Spots, pp. 66-6876-77

63 Bureau of the Census, Negro Population, 1790-1915, table 13, an. 43-45 : table 5.n. 51

64 See appendix. Alabama and Mississippi authorized ministers and officials to perform marriages between free whites and between free Negroes, but seem to have given no thought to forbidding specifically the performance of interracial marriages

65 See appendix

66 It is doubtful whether the omission of the Iowa Intermarriage prohibition was realized by the legislators who took the actions. The legislature in 1848 had appointed three men to revise the code of laws. The Code of Iowa, passed at the session of the General Assembly of 1850*1 and approved 5th February 1851 (Iowa City, 1851), p. 470. The legislature adopted the section on marriage, which contained no reference to inter racial marriage (sec. 85). The general attitude of the legislature may be inferred from the fact that they also passed in 1851 a prohibition of the immigration of free Negroes into the state, Acts . . . passed at the Regular session of the Third general Assembly . . . (Iowa City, 1851), pp. 172-173. The free-state legislature in Kansas Territory decided in 1358 to take the lavs of Ohio )which then contained no prohibition of intermarriage) as the basis for a new Kansas code, Kansas. Territory Council Journals 1858, pp. 72-73, 78.

67 See Appendix

68 149 Papulation of the United States la 1860; compiled from the Original Returns of the Eighth Census. under the direction of the Secretary of the Interior. Joseph C. G. Kennedy, Superintendent of Census (Washington, D. C., 1864), p. xvii

69 * From Peggy Pascoe, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth- Century America.” Journal of American History 83.1 (June 1996): 44-69

70 1 Ariz. Rev. Stat. Ann. sec. 3837 (1913); “Appellant’s Abstract of Record,” Aug. 8, 1921, pp. 1-2, Kirby v. Kirby, docket 1970 (microfilm: file 36.1.134), Arizona Supreme Court Civil Cases (Arizona State Law Library, Phoenix)

71 Appellant’s Abstract of Record,” 12-13, 13—15, 15, Kirby v. Kirby

72 Ibid., 16-18

73 See especially Fredrickson, Black Image in the White Mind

74 For intriguing attempts to define American modernism, see Daniel J. Singal, ed., Modernist Culture in America (Belmont, 1991); and Dorothy Ross, ed., Modernist Impulses in the Human Sciences, 1870—1930 (Baltimore, 1994). For the view from critical race theory, see Brian K. Fair, “Foreword: Rethinking the Colorblindness Model,” National Black Lam Journal, 13 (Spring 1993), 1-82; Neil Gotanda, “A Critique of ‘Our Constitution Is Color-Blind,’ ” Stanford Law Review, 44 (Nov. 1991), 1-68; Gary Peller, “Race Consciousness,” Duke Law Journal (Sept. 1990), 758—847; and Peter Fitzpatrick, “Racism and the Innocence of Law,” in Anatomy of Racism, ed. Goldberg, 247- 62

75 Many scholars avoid using the word miscegenation, which dates to the 1860s, means race mixing, and has, to twentieth-century minds, embarrassingly biological connotations; they speak of laws against “interracial” or “cross-cultural” relationships. Contemporaries usually referred to “anti miscegenation” laws. Neither alternative seems satisfactory, since the first avoids naming the ugliness that was so much a part of the laws and the second implies that “miscegenation” was a distinct racial phenomenon rather than a categorization imposed on certain relationships. I retain the term miscegenation when speaking of the laws and court cases that relied on the concept, but not when speaking of people or particular relationships. On the emergence of the term, see Sidney Kaplan, “The Miscegenation Issue in the Election of 1864,” Journal of Negro History, 24 (July 1949), 274-343 [included in this volume, pp. 219—265. —Ed.]

76 Most histories of interracial sex and marriage in America focus on demographic patterns, rather than legal constraints. See, for example, Joel Williamson, New People: Miscegenation and Mulattoes in the United States (New York, 1980); Paul R. Spickard, Mixed Blood: Intermarriage and Ethnic Identity in Twentieth-Century America (Madison, 1989); and Deborah Lynn Kitchen, “Interracial Marriage in the United States, 1900-1980” (Ph.D. diss., University of Minnesota, 1993). The only historical overview is Byron Curti Martyn, “Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation” (Ph.D. diss., University of Southern California, 1979). On the colonial period, see A. Leon Higginbotham Jr. and Barbara K. Kopytoff, “Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia,” Georgetown Law Journal, 11 (Aug. 1989), 1967-2029 [in this volume, pp. 81-139. —Ed.]; George M. Fredrickson, White Supremacy: A Comparative Study in American and South African History (New York, 1981), 99-108; and James Hugo Johnston, Race Relations in Virginia tf> Miscegenation in the South, 1776- 1860 (Amherst, 1970), 165—90. For later periods, see Peter Bardaglio, “Families, Sex, and the Law: The Legal Transformation of the Nineteenth-Century Southern Household” (Ph.D. diss., Stanford University, 1987), 37-106, 345-49; Peter Wallenstein, “Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860s-1960s,” Chicago-Kent Law Review, 70 (no. 2, 1994), 371- 437; David H. Fowler, Northern Attitudes towards Interracial Marriage: Legislation and Public Opinion in the Middle Atlantic and the States of the Old Northwest\ 1780-1930 (New York, 1987); Megumi Dick Osumi, “Asians and California’s Anti-Miscegenation Laws,” in Asian and Pacific American Experiences: Women’s Perspectives, ed. Nobuya Tsuchida (Minneapolis, 1982), 2—8; and Peggy Pascoe, “Race, Gender, and Intercultuxal Relations: The Case of Interracial Marriage,” Frontiers, 12 (no. 1, 1991), 5–18. The count of states is from the most complete list in Fowler, Northern Attitudes, 336-439

77 Ariz. Rev. Stat. Ann. sec. 3092 (1901); 1931 Ariz. Sess. Laws ch. 17. Arizona, Idaho, Maine, Massachusetts, Nevada, North Carolina, Oregon, Rhode Island, South Carolina, Tennessee, Vir-

78 * States that singled out other groups besides blacks as being ineligible for marriage to whites included Arizona (Mongolians, Malayans, Hindus, Indians), California (Mongolians, Malayans), Georgia (Japanese, Chinese, Malayans, Asiatic Indians), Mississippi (Mongolians), Montana (Chinese, Japanese), Nebraska (Chinese, Japanese), Nevada (Ethiopians, Malays, Mongolians), and Wyoming (Malayans, Mongolians). See the very useful tabulations of antimiscegenation laws, in Fowler, Northern Attitudes, 339-439. “Note: Constitutionality of Anti-Miscegenation Statutes,” Yale Law Journal 58 (1949): 472., 480-83. See also Leti Volpp, “American Mestizo: Filipinos and Antimiscegenation Laws in California,” University of California at Davis Law Review 33 (2.000): 95, 798-801; Lloyd Riley, “Miscegenation Statutes—A Re-evaluation of Their Constitutionality in Light of Changing Social and Political Conditions,” Southern California Law Review 32. (1958):

79 * “Any person, firm, or corporation who shall be guilty of printing…. matter urging, or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes, shall be guilty of a misdemeanor” See Pauli Murray, States’ Laws on Race and Color





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