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Randall Kennedy | The Nation

Randall Kennedy

Author Bios

Randall Kennedy

Randall Kennedy, a member of The Nation's editorial board,
teaches law at Harvard. His most recent book is Interracial
Intimacies (Pantheon).

Articles

News and Features

Prior
to the landmark Supreme Court rulings in Brown v. Board of
Education
and Bolling v.

Bayard Rustin forged a remarkable career as a social activist. Briefly a
member of the Young Communist League, he repudiated communism but
remained a socialist throughout his life.

On November 7, voters in Alabama erased from that state's Constitution a provision dating from 1901 that declared that "the legislature shall never pass any law to authorize or legalize any marriage between any white person and a Negro, or descendant of a Negro." This declaration represented in part a desire by white supremacists to express as fully as possible their intention to expunge the racially egalitarian symbols, hopes and reforms of Reconstruction. Although Alabama had never enacted a law expressly authorizing interracial marriage, in 1872 the state's Supreme Court did invalidate the law that prohibited such unions. But it promptly reversed itself in 1877 when white supremacists regained power. The Alabama Constitution's disapproval of interracial marriage, however, had still deeper roots. It stemmed from the presumption that white men had the authority to dictate whom, in racial terms, a person could and could not marry. It was also rooted in the belief that certain segments of the population were simply too degraded to be eligible as partners in marriage with whites. At one point or another, forty states prohibited marriage across racial lines. In all of them blacks were stigmatized as matrimonial untouchables. In several, "Mongolians" (people of Japanese or Chinese ancestry), "Malays" (Filipinos) and Native Americans were also placed beyond the pale of acceptability.

Rationales for barring interracial marriage are useful to consider, especially since some of them echo so resonantly justifications voiced today by defenders of prohibitions against same-sex marriage. One rationale for barring interracial marriages was that the progeny of such matches would be incapable of procreating. Another was that God did not intend for the races to mix. Another was that colored people, especially blacks, are irredeemably inferior to whites and pose a terrible risk of contamination. The Negrophobic Thomas Dixon spoke for many white supremacists when he warned in his novel The Leopard's Spots that "this Republic can have no future if racial lines are broken and its proud citizenry sinks to the level of a mongrel breed." A single drop of Negro blood, he maintained apocalyptically, "kinks the hair, flattens the nose, then the lip, puts out the light of intellect, and lights the fires of brutal passions."

Although opponents of prohibitions on interracial marriage have waged struggles in many forums (e.g., academia, the churches, journalism), two in particular have been decisive. One is the courtroom. In 1967 in the most aptly titled case in American history--Loving v. The Commonwealth of Virginia--the United States Supreme Court ruled that prohibitions against interracial marriage violated the equal protection and due process clauses of the Fourteenth Amendment. (Although much credit is lavished on the Court's decision, it bears noting that nineteen years earlier, in 1948, the Supreme Court of California had reached the same conclusion in an extraordinary, albeit neglected, opinion by Justice Roger Traynor.) When the federal Supreme Court struck down Jim Crow laws at the marriage altar, it relied on the massive change in public attitudes reflected and nourished by Brown v. Board of Education (1954), Martin Luther King Jr.'s "I Have A Dream" address (1963), the Civil Rights Act (1964) and the Voting Rights Act (1965). The Court also relied on the fact that by 1967, only sixteen states, in one region of the country, continued to retain laws prohibiting interracial marriage. This highlights the importance of the second major forum in which opponents of racial bars pressed their struggle: state legislatures. Between World War II and the Civil Rights Revolution, scores of state legislatures repealed bans against interracial marriage, thereby laying the moral, social and political groundwork for the Loving decision. Rarely will any court truly be a pioneer. Much more typically judges act in support of a development that is already well under way.

Unlike opponents of Brown v. Board of Education, antagonists of Loving were unable to mount anything like "massive resistance." They neither rioted, nor promulgated Congressional manifestoes condemning the Court, nor closed down marriage bureaus to prevent the desegregation of matrimony. There was, however, some opposition. In 1970, for example, a judge near Fort McClellan, Alabama, denied on racial grounds a marriage license to a white soldier and his black fiancée. This prompted a lawsuit initiated by the US Justice Department that led to the invalidation of Alabama's statute prohibiting interracial marriage. Yet the Alabama constitutional provision prohibiting the enactment of any law expressly authorizing black-white interracial marriage remained intact until the recent referendum.

That an expression of official opposition to interracial marriage remained a part of the Alabama Constitution for so long reflects the fear and loathing of black-white intimacy that remains a potent force in American culture. Sobering, too, was the closeness of the vote; 40 percent of the Alabama electorate voted against removing the obnoxious prohibition. Still, given the rootedness of segregation at the marriage altar, the ultimate outcome of the referendum should be applauded. The complete erasure of state-sponsored stigmatization of interracial marriage is an important achievement in our struggle for racial justice and harmony.