Race Distinctions in American LawStephenson, Gilbert Thomas
History
Race Distinctions in American Law
Stephenson, Gilbert Thomas
African Americans -- Politics and government; Law -- United States -- History; United States -- Race relations
can determine who may marry in a State, there is no limit to its
power....”
The Supreme Court of Alabama[210] in 1872 declared that the laws against
intermarriage did contravene the Civil Rights Bill and the Fourteenth
Amendment. But this case was expressly overruled by Green v. State,[211]
in which the court, answering both of the objections, said, “Marriage is
not a mere contract, but a social and domestic institution upon which
are founded all society and order, to be regulated and controlled by the
sovereign power for the good of the State; and the several States of the
Union in the adoption of the recent Amendments to the Constitution of
the United States designed to secure to citizens rights of a civil or
political nature only, and did not part with their hitherto unquestioned
power of regulating, within their own borders, matters of purely social
and domestic concern.”
There are Federal cases to support the position of the State Courts. But
it is of no use to pile up citations of decisions further to establish
the well-accepted doctrine that marriage is more than a civil contract,
that it is a domestic institution, and that a State, by virtue of its
police power, has absolute control as to who may contract marriages or
live in that relation within its borders.[212]
Twenty-six States and Territories prohibit intermarriage between the
white and other races. They recognize as valid such marriages when
contracted in a State which allows them, unless the parties are trying
to evade the laws of the State of their domicile or of their intended
matrimonial residence. The States prescribe a heavier penalty for
illicit intercourse between white persons and persons of another race
than for the same offence between two persons of the same race; they
inflict heavy punishments upon ministers and other officials who perform
a marriage ceremony between a white person and one of another race, and
upon those who issue licenses for such a marriage; and they declare the
offspring of such marriages illegitimate and incapable of inheritance.
In each of these positions, the courts, Federal as well as State, have
upheld the twenty-six States and Territories.
Twenty-four States and Territories do not prohibit intermarriage between
the white and other races. It is not within the province of this study
to consider the actual amount of admixture that is going on in these
States. But inasmuch as Boston has often been cited as the city in which
the number of marriages between white persons and Negroes is very large
(estimated by Senator Money, of Mississippi, at 2,000 in 1902), the
report of the registry department of Boston for the years 1900–1907 is
here added:
INTERMARRIAGES IN BOSTON
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