50 years ago, the Loving’s fought back against Virginia’s “Racial Integrity Act” that prohibited interracial marriage and won. On the anniversary of that decision, it is only right to give thanks to the couple that started us on the course towards marriage equality.
But the case also brings up a disturbing trend in civil rights and the secret code words and weak legal arguments that opponents use to defend their efforts.
In the first half of the 20th century, lawmakers used words like “racial integrity” and “state’s rights” to defend white supremacy. 50 years later, not much has changed.
Sometimes the use of these phrases is called “dog whistle politics”, and like a dog whistle, the phrases are intended to be heard by a certain segment of the population that fears their way of life is being corrupted or eroded. The terms, on their face, appear neutral but are anything but. These phrases are an attempt to persuade voters and policy makers that intentions are good and to withstand claims of discriminatory intent.
A look back at Virginia as an example can prove how dangerous these code words are.
As soon as the 14th and 15th Amendments were ratified, states began to push back to ensure white supremacy, passing laws that either outright prohibited or had the effect of prohibiting black citizens from traveling, voting, residing in northern states, holding employment, and sharing public spaces with white citizens.
Following W.W. I, Virginia enacted the “Racial Integrity Act”. The Act prohibited interracial marriage certificates, voided any interracial marriage Virginian’s obtained out of state, defined “white” and “colored”, required Virginian’s to register their race with the state, and criminalized the act of interracial marriage.
Virginian’s have been in the business of defining the legal rights of its residents based upon race since its infancy. But once the Supreme Court explained that the defining rights based upon race was unconstitutional, lawmakers had to become more inventive. So, white supremacists adopted and justified their new laws, saying that they had equal impact on white and black residents…something the courts called “equal applicability”, which worked for a while.
Advocates of the Act also relied upon a pseudo-science called eugenics to justify the Racial Integrity Act. Eugenics was a belief by some that a superior race of humans could be bred like plants and animals by eliminating or segregating those whom their followers believed to have “inferior” genes. Followers claimed that racial minorities, the poor, those involved in the sex trades, habitual offenders, and those affected by alcoholism and other addictions had inferior genes. Not until 2001 (and long after the laws had been voided by the courts), did the Virginia legislature finally recognize the Racial Integrity Acts as the act of racism that it was.
In the 1920’s, the state registrar of vital statistics for Virginia was a member of the Anglo-Saxan Club, whose primary mission was to combat the “mixing of the races”. One club member said the goal was to address the “fundamental and final solutions of our racial problems in general, most especially the Negro problem.” The state registrar advocated on behalf of the Racial Integrity Act and saw, in his position as keeper of vital records, a way to prevent interracial marriages.
And so, the Racial Integrity Act was in effect in 1958, when the Loving’s, who resided in Virginia, went to Washington, DC to get married. They returned to live as a married couple in Virginia, when the police broke into their bedroom at 2 am and arrested them from their bed. The state law not only voided their marriage but criminalized their conduct. The judge convicted them of a felony and sentenced them to 25 years in jail! He offered to reduce their sentence if they promised to leave the state, which they did. They returned a few years later to visit family and were again arrested. This time they fought back, and won.
Virginia claimed that “state’s rights” under the 10th Amendment gave them the right to regulate marriage without restriction, or even if some constitutional restrictions apply, then the law was justified because it punished both races equally without regard to racial classifications. The state also tried to justify their law, by claiming that “the scientific evidence (on the effects of interracial marriages) is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.”
If this argument sounds familiar, that’s because the State of Indiana used the exact same argument recently to defend against its law restricting abortions. (Spoiler: the argument failed, although Indiana continues to appeal).
The Loving’s case reached the United States Supreme court in 1967. The Court struck down Virginia’s Racial Integrity Act, saying the right to marry is a fundamental right.
In finding the state law in violation of the Equal Protection Clause, the court stated “(t)he fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”
The Court also invalidated the law on due process grounds. Stating “(t)he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” the Court held that the law deprived the Loving’s of the pursuit of liberty in violation of the due process clause.
The fight for full racial equality is far from over, and racial discrimination at its core, is the worst form of discrimination today by far. It began with the enslavement, selling, killing and raping of humans, tearing apart families for generations. And it continues to create a second tier of citizens even today. But the arguments civil rights opponents make to maintain the status quo has spilled over to other groups that lack political representation.
Flash forward to today, where the white majority state legislatures make the same transparent arguments to maintain the status quo and even turn back civil rights advancements.
Take, for example, “the bathroom bills” that make it a crime for transgender individuals to use the bathroom of their gender. Lawmakers justify these laws in order to “protect our children”, code words that imply transgender individuals are predators. When it comes to restricting access to abortions, lawmakers justify their actions as necessary to “protect women” or the argument that science is unclear therefore defer to the state legislature. And when it comes to elections, lawmakers rely on the catch-phrase “Election Integrity” in an attempt to justify strict photo ID and birth certificate requirements or Presidential Commission’s used to bolster false claims of massive voter fraud. Even the very real need to “guard against terrorism” has been co-opted to justify a ban on travel from Muslim majority countries.
We must remain vigilant for code words and call them out at every opportunity.
Photo Credit: American Foundation for Equal Rights