Medical Criminality, Racism, and Miscegenation Laws in the United States
Mildred Jeter and Richard Loving met, fell in love, and while in the District of Columbia in June of 1958, married. However, since both were from Virginia they decided to return to their home state. They set up house and settled into married life. Alas, wedded bliss was not in store for the pair, for in October of that year, the couple was charged and indicted for “violating Virginia’s ban on interracial marriages.”[i] The couple decided to agree to a plea deal that forced them to leave their home and move out of state, just to stay out of jail. However, they did not just have to leave but were exiled from their home for “25 years.”[ii] This certainly does not sound like the childhood dream that most kids grow up with, forced from their homes for loving someone that the state deemed to be unacceptable. Because at the root of it this was the problem, Mildred was black and Richard was white, that was it, nothing else, just race. Well it was race and fear, fear of what would happen to American society if this were allowed.
The couple accepted their punishment and moved back to the District of Columbia but in the end, they decided that they should not have to be separated from their family and friends. Instead of hiding in D.C., they would fight the state and reclaim their home. So they did just that and filed suit. Ultimately, the case made it all the way to the Supreme Court of the United States and was the key case in overturning these laws.
[i] Loving v. Virginia, 388 U.S. 1 (1967). Supreme Court of United States (June 12, 1967).
[ii] Loving
It seems preposterous coming from a country that was supposedly founded on the ideal of individual freedom by people that fled from a tyrannical government that was regulating how they lived. So the question that must be asked and answered is how did US society get from the childhood ideal of marriage to criminalizing interracial marriage, or creating miscegenation laws, in the United States? Well it starts with a theory, a theory that criminality, along with other defects, can be identified in a person through medical findings. Medical theories of criminality specifically referring to Black Americans lead to the development of miscegenation laws in the United States in the 20th century.
The simplest place to begin is with answering the obvious questions of, what were miscegenation and miscegenation laws? Peggy Pascoe wrote a book entitled What Comes Naturally: Miscegenation Law and the Making of Race in America, which delves deeply into the history of the term and the laws surrounding it. According to Pascoe:
The term “miscegenation” first appeared during the presidential election of 1864,
in a pamphlet written by two New York politicos who … Insisting that it was important
to have an independent term, one that referred to the “mixture of two or more races” and
nothing else, they combined miscere (mix) and genus (race) to form the new, more
scientific-sounding “miscegenation.”[i]
Even from the beginning, the idea of racial mixing caused politicians to use “science” to support their stance against interracial sex and marriage. This new term “caught on quickly” and “provid[ed] the rhetorical means of channeling the belief that interracial marriage was unnatural into the foundation of post-Civil War white supremacy.”[ii] It should not be that surprising that the South, rocked from the Civil War and still struggling with integrating freed slaves, would seize upon these new “scientific” ideas that mixing races was wrong. However, these laws did not begin and end in the South but instead spread across the country. There were a few states out there that did not pass these laws and some that repealed them a lot sooner than others but this was not a racism that was limited to the South.
While these laws may have been applied mostly in relationships involving blacks and whites, most were not written to single out blacks. They were designed to keep non-white races from mixing with whites. To a modern scholar the idea of white purity should sound eerily familiar and bring to mind images of goose-stepping, swastikas, and concentration camps. This may sound like a leap to compare the United States and these miscegenation laws with Nazi Germany but there is a link between the two, and Cesare Lombroso served as the bridge.
Cesare Lombroso was an Italian doctor and psychiatrist and in his seventy-four years was a prolific writer and researcher. However, it was his work on criminality that was his signature work and lasting legacy. Often referred to as the “father of modern criminology,” it was his life-long research in criminal anthropology that propelled his notoriety.[iii] Lombroso spent his life developing and fine-tuning his theory. Translated into several languages and published in five different editions, Lombroso laid out his vision of how medical and biological factors caused an individual to become inherently criminal.[iv] Lombroso did not set out to write a theory that was racist and easily misinterpreted, but this is what he achieved. Even his own daughter, who took it upon herself to try to clarify or add to her father’s work after his death, took the most simplistic view of his work. This would only add to the blatantly racist applications of Lombroso’s theory.[v] His theory has been linked to racial policies in Nazi Germany and in South Africa. While this may cast a cloud over his work and it is easy to disagree with his findings, Lombroso was not known to be a racist and was Jewish himself.[vi]
Lombroso theorized that identifiable biological factors, such as cranial features and a host of others, made people inherently criminal. Through his study of criminals, the mentally ill, and his control groups of “healthy” men, Lombroso came to the following conclusions.[vii] According to him, criminals are “more likely to have crooked noses, sloping foreheads, large ears, protruding jaws, and dark skin, eyes, and hair. They also tend to be physically weak and insensitive to pain. This last trait … constitutes the exterior sign of inward moral obtuseness that explains why criminals rarely exhibit remorse for their crimes. Unable to control their passions, they indulge in drinking and gambling.”[viii] For a person, or politician, looking for a way to scare the public into not mixing races, Lombroso had laid the groundwork. What better way to justify making race-mixing criminal than to imply that Lombroso’s descriptions of criminality point to a specific race and that by mixing “white blood” with this somehow inherently criminal blood would be a detriment to the “white race”?
In order to understand how lawmakers applied Lombroso’s findings, it is important to
understand his method. According to his own work, he studied over fifty skulls provided to him by several private sources and several museums. He then studied groups of soldiers and groups of criminals, already incarcerated.[i] Lombroso used his findings from studying these two groups to apply to the population as a whole. In discussing Lombroso and his work, Wayne Morrison writes in Theoretical Criminology: from modernity to post-modernism, “Most commentators read Lombroso as applying the biological ideas of the immediate post-Darwin era to the study of the criminal; specifically applying the concept of atavism and the principles of evolution to depict criminals as biological ‘throwbacks’ to a primitive, or ‘atavistic,’ stage of evolution.”[ii] Lombroso himself noted during an autopsy, “At the sight of that skull, I seemed to see … the problem of the nature of the criminal – an atavistic being who reproduces … the ferocious instincts of primitive humanity and the inferior animals.”[iii] This idea of criminals as being throwbacks to a less evolved man will be mirrored in eugenics. Lombroso goes on to note, “Thus were explained anatomically the enormous jaws, high cheek-bones, prominent superciliary arches, solitary lines in the palms, extreme size of the orbits, handles-shaped or sessile ears found in criminals, savages, and apes, insensibility to pain, extremely acute sight, tattooing, excessive idleness, love or orgies, and the irresistible
craving for evil of its own sake, the desire not only to extinguish life in the victim, but to mutilate the corpse, tear its flesh, and drink its blood.”[i] For those that sought evidence for their own preconceived ideas of non-white races, Lombroso’s theories would seem sound and certainly applicable to their personal agenda.
Despite these rather grim and graphic ideas of criminalistics traits, Lombroso was forced later in his research to realize that criminality could not be explained by medical or scientific theories alone.[ii] However, despite his change and clarifications, his theories and ideas were already apart of the public conversation. Lombroso’s theories of genetic or medical differences between the races were not the only ones available. There was a rise in an area of science and medicine, known as eugenics that took the idea of these differences out of the realm of criminals and into the realm of the everyday person. Around the same time, that Lombroso was studying criminal traits, another scientific based movement was gaining attention, eugenics. Eugenics was a study that had been around for quite some time. Much like Lombroso, the ideas that were set forth by the eugenic movement were skewed and biased almost from the start. So what is eugenics? Alexandra Stern states the following about eugenics in her book, Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America, “Sir Galton … cousin of Charles Darwin … wrote that eugenics was ‘the science which deals with all influences that improve the inborn qualities of a race’ … then eugenics can simply be defined as better breeding.”[i] With this sort of scientific study being conducted, coupled with Lombroso’s studies of inherent criminality, the applications are endless.
The idea of creating a “perfect race,” that was free from criminals, disease, and every other sort of defect was the goal for the scientist and ultimately for the politicians that utilized these ideas to create laws that put science into action. Laws concerning sterilization swept through the United States and ultimately almost two-thirds of the states passed laws dealing with sterilization. These sterilization laws were aimed at criminals, mentally ill, and those deemed unfit by the state. However, the application of these laws, more often than not, was applied to poor non-whites whose main crime was that they were not white.
While there is no way to plot on a time-line the movement of eugenics and the connection to Lombroso’s theory of criminality from their inceptions through the creation of so many miscegenation laws in the United States, it is relatively clear to see the influence. Those with the power in the US sought ways to influence and control the population, both white and non-white. This can be examined in many places but we are only going to look at three specific places and three specific cases, California, Florida, and Virginia. California came to the forefront of the miscegenation debate relatively early. The reason for this can be seen because of the myriad of races that lived in California. Because of increased immigration into the state in this particular context, it is no wonder that miscegenation became such a prominent subject. Miroslava Chavez-Garcia lays out a startling history of institutional racism in her book, States of Delinquency: Race and Science in the Making of California’s Juvenile Justice System. She contends that starting early in the twentieth century, California began to systematically classify minority youths as criminals. These children were then shuffled off to state homes and facilities, many of whom ended up being sterilized so that they would not pass on their criminal genes to future generations.[ii] Chavez-Garcia writes, “Beginning in the early 1900s, when conditions at Whittier State School took a turn for the worse after only twenty
years of operation – with rampant physical and sexual abuse, excessive corporal punishment, meager state funding, and neglect – state and reform school officials employed scientific researchers to develop effective programs aimed at redeeming delinquent, dependent, and otherwise unwanted youth and transforming them into productive male citizens.”[i] The irony in these words that they sought to make these children, “productive male citizens” is that they only deemed some salvageable.[ii] Instead of helping, they sought to “classify, sort, and segregate state wards …. in the process, scientist identified a disproportionate number of Mexican, Mexican American, and African American youths as feebleminded and criminally minded offenders whose genetic or racial stock was the root cause of their deficiencies.”[iii] As I mentioned before, many of these children ended up being forcibly sterilized to keep their bad genes out of society. It is not a surprise or a leap that this sort of systematic application of medical theories of criminality and eugenics played such a large role in the political system.
The miscegenation laws that were passed in many states sought this same type of purification of races. In California, the laws dealing with race and marriage prohibited whites from marrying “Negro,” “Mulatto,” “Mongolian,” or “Malay.”[iv] These laws were not as concerned with non-white races mixing among themselves, just the mixing of these races with whites. The California courts interpreted the laws by stating, “a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation … For these reasons, therefor, ‘all races other than Caucasian’ were held to be included in a statute referring only to a ‘black or mulatto person, or Indian.”[i] In the court case, Perez v State of California, the State took the following stand, “The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the full blood of either race.”[ii] The stance of the State was typical of the attitudes of many white people and the politicians of the time. However, not all citizens of California or of the United States believed these notions of race.
The case that was the beginning of change for the miscegenation laws in California started with Andrea Perez and Sylvester Davis. This young couple met at church and fell in love. They decided that they wanted to get married and sought out a marriage license. They were denied this license because Davis was black and Perez, although Hispanic, was classified as white. They filed suit on the basis that the denial of their marriage license was “unconstitutional on the grounds that they prohibit the free exercise of their religion and deny to them the right to participate fully in the sacraments of that religion … since the church has no rule forbidding marriages between Negroes and Caucasians, they are entitled to receive the sacrament of matrimony.”[iii] The interesting part of this case was not that the petitioners contested the validity of the law based on racism but on religious freedom. This provided them and the courts with a loophole to undermine the law and help to undo that law. The California Supreme Court ruled in favor of Perez and Davis and in doing so issued this statement:
The due process clause of the Fourteenth Amendment protects an area of personal liberty
not yet wholly delimited. “Without doubt, it denotes … the right of the individual … to
marry, establish a home and bring up children, to worship God according to the dictates
of his own conscience, and … to enjoy those privileges long recognized … as essential to
the orderly pursuit of happiness by free men.” Marriage is thus something more than a
civil contract subject to regulation by the state, it is a fundamental right of free men.
There can be no prohibition of marriage except for an important social objective and by
reasonable means.[i]
This declaration that marriage was a “fundamental right of free men” would be key and would become a theme in the rest of the cases that began to undue the miscegenation laws in the United States.[ii]
Perez helped open the discussion of interracial marriage to a whole new debate in 1948 but the uniqueness of the arguments of that case were not translatable to every miscegenation case that was out there. It took many years before these laws were struck down in the United States. Helping the cause was a case in Florida, McLaughlin v. Florida that dealt with the rights of non-married interracial couples to have sex. The Florida statute states, “Any negro man and white woman, or any white man and negro woman, who are not married to each other, who shall habitually live in and occupy in the nighttime the same room shall each be punished.”[iii] As with many of these laws across the South, the issue was not as much about non-whites mixing with whites as it was blacks mixing with whites. The case was argued before the Supreme Court of the United States and the Court ruled in favor of the plaintiffs. It was Florida’s specific targeting of blacks that led to the loss of the case. The Supreme Court stated, “I cannot conceive of a valid legislative purpose under our Constitution for a state law which makes the color of a person’s skin the test of whether his conduct is a criminal offense. These appellants were convicted, fined, and imprisoned under a statute which made their conduct criminal only because they were of different races. So far as this statute goes, their conduct would not have been illegal had they both been white or both Negroes … I think it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. Discrimination of that kind is invidious per se.”[iv] While this case did not deal specifically with Florida’s miscegenation marriage statute, it helped to undermine the spirit of these laws across the South and it was not long before the Loving case would be the undoing of these laws all together.
The story behind the Loving case was stated earlier and was the basis of the case but it became about much more than just Mildred and Richard. By the time the Loving case made it to the Supreme Court of the United States in April of 1967, the Japanese American Citizens League, the National Catholic Conference for Interracial Justice, the National Association for the Advancement of Colored People, and the State of North Carolina had all joined the fray.[v] North Carolina joined with Virginia, but all of the others joined with the Lovings in hopes of finally overturning these laws. It became obvious by the outside interest this case was the pivotal case and in June of 1967, the Supreme Court struck down the Virginia statute. The Virginia miscegenation code stated, “Marriages void without decree – All marriages between a white person and a color person shall be absolutely void without any decree of divorce or other legal process.”[i] The Virginia code went on to define a white person, “the term ‘white person’ shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.”[ii] The code goes on to state, “’Colored persons and Indians defined – Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes … having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians.”[iii]
Prior to this case going before the Supreme Court of the United States, it was heard before the Supreme Court of Virginia. That court ruled in favor of the State and reasoned, “the[re] [are] reasons supporting the validity of these laws … the State’s legitimate purposes were ‘to preserve the racial integrity of its citizens,’ and to prevent ‘the corruption of blood,’ ‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride,’ obviously an endorsement of the doctrine of White Supremacy.”[iv] When the Supreme Court considered this case, it was based on the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The State of Virginia in its defense argued, “’Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.’”[v] In the Supreme Court’s ruling on Loving, the opinion of the Court was delivered by the Chief Justice Earl Warren. In his ruling he states, “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The 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 … 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.”[vi] With these words, Mr. Chief Justice Warren brought an end to miscegenation laws in the United States. While this did not magically wipe all the laws off the books, it gave those that were fighting against them a basis for their fight.
For so much of this fight, Northerners viewed it as a Southern problem, the propagation of these laws across the country undermines this view, but it was nevertheless the opinion held by so many in this country. Like so many other issues, the 1960s became a time of change for this issue. The Supreme Court had firmly come down on the side of racial inclusion rather than racist exclusion and the opinions of the public were changing as well. There were, and still are, those that viewed racial mixing as a problem but they were becoming a minority instead of the majority. This change can be seen in not just the laws but the popular culture as well. One of the more popular movies of the 1960s was Guess Who’s Coming to Dinner starring Spenser Tracy and Sidney Poitier. Renee Romano writes in her book, Race Mixing: Black-White Marriage in Postwar America, “Guess Who’s Coming to Dinner was both commercially and critically successful, breaking box-office records and garnering ten Academy Award nominations. The film resonated with members of an American public who were themselves worried about how the racial and social changes of the sixties might affect their own families.”[i] Romano goes on to state, “Yet in spite of its limitations, the film represented a very public refutation of the long-accepted white position on interracial marriage. It not only argued that interracial relationships could be healthy, but also suggested that social opprobrium should not prevent couples from marrying and placed whites who opposed interracial relationships in the wrong.”[i] Roman, in her examination of the changing atmosphere of the country, goes on to examine the marriage of Peggy Rusk and Guy Smith. Peggy is the daughter of then Secretary of State, Dean Rusk of Georgia, while Guy was “the light-skinned son of a black Washington, D.C., professional family.”[ii] This very public marriage of the daughter of a man of such political prominence was symbolic of the changes taking place across the country. Romano notes, “Although Rusk’s calm acceptance of his daughter’s marriage angered some of his Georgian relatives … the media praised Rusk for handling the marriage with dignity and grace. To Time magazine, Peggy and Guy’s union was ‘a marriage of enlightenment’ that would be remembered as ‘a benchmark in the troubled history of race relations in the United States.’ Most white readers responding to coverage in Time and Newsweek approved of the marriage.”[iii] The wide acceptance of both the movie and the marriage, more than anything else, signified the dramatic change of the attitude of the country as a whole.
The shift in race relations in this country was a long and winding road. While we as a country would like to think that we have overcome the bigotry and hatred that stained our past, the election of President Obama highlighted how far we have come as a nation but also how far we still have to go. The relevance of this topic to modern marriage debates should not be lost. How many years will it be before future generations look upon our current debate with horror and disdain? To forget the relevance of past issues would be to diminish the lives of those that fought so hard to change this country. After all, most children still grow up with the expectation that they will meet that special someone, fall in love, get married, have children, and hopefully live their own fairytale ending. Never does the thought enter into the mind of a child, that when they meet the person they want to marry it will not be allowed. This was the issue and still is but we, as a society, can hope that when all is said and done, love will be the ultimate victor.
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Chavez-Garcia, Miroslava. States of Delinquency: Race and Science in the Making of
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Ladd-Taylor, Molly. “Eugenics, Sterilisation and Modern Marriage in the USA: The Strange
Career of Paul Popenoe.” Gender & History, Vol. 13, No. 2 (August, 2001). Pgs. 298-327.
Lombroso, Cesare. Criminal Man. Durham: Duke University Press, 2006.
Loving v. Virginia, 388 U.S. 1 (1967). Supreme Court of United States (June 12, 1967).
McLaughlin Et Al v. Florida, 379 U.S. 184 (1964). Supreme Court of United States (December 7, 1964).
Morrison, Wayne. Theoretical Criminology: from modernity to post-modernism. London: Cavendish Publishing Limited, 1995.
Pascoe, Peggy. What Comes Naturally: Miscegenation Law and the Making of Race in America. Oxford: Oxford UP, 2009.
Perez v. Sharp, 32 Cal.2d 711 (1948). Supreme Court of California (Oct 1, 1948).
“Regulating Eugenics.” Harvard Law Review, Vol. 121, No. 6 (Apr., 2008). Pgs. 1578 – 1599.
Romano, Renee C. Race Mixing: Black-White Marriage in Postwar America. Gainesville: UP of Florida, 2003.
Schuler, Ruth Velma. “Some Aspects of Eugenic Marriage Legislation in the United States.” Social Service Review, Vol. 14, No. 1 (Mar., 1940). Pgs. 61-82.
Skinner v. Oklahoma Ex Rel. Williamson, Attorney General, 316 U.S. 535 (1942). Supreme Court of the United States (June 1, 1942).
Stern, Alexandra. Eugenic nation: faults and frontiers of better breeding in modern America. Berkley: University of California Press, 2005.
Stern, Alexandra. “Sterilized in the Name of Public Health: Race, Immigration, and Reproductive Control in Modern California.” American Journal of Public Health, Vol. 95, No. 7 (July, 2005). Pgs. 1128-1138.
[i] Romano, Pg. 204
[ii] Romano, Pg. 204
[iii] Romano, Pg. 204
[i] Romano, Renee C. Race Mixing: Black-White Marriage in Postwar America. Gainesville: UP of Florida, 2003. Pg. 203
[i] Loving
[ii] Loving
[iii] Loving
[iv] Loving
[v] Loving
[vi] Loving
[i] Perez
[ii] Perez
[iii] McLaughlin Et Al v. Florida, 379 U.S. 184 (1964). Supreme Court of United States (December 7, 1964).
[iv] McLaughlin
[v] Loving
[i] Perez
[ii] Perez
[iii] Perez
[i] Chaves-Garcia, Pg. 4
[ii] Chavez-Garcia, Pg. 4
[iii] Chavez-Garcia, Pg. 4
[iv] Perez v. Sharp, 32 Cal.2d 711 (1948). Supreme Court of California (Oct 1, 1948).
[i] Stern, Alexandra. Eugenic nation: faults and frontiers of better breeding in modern America. Berkley: University of California Press, 2005. Pgs. 10-11
[ii] Chavez-Garcia, Miroslava. States of Delinquency: Race and Science in the Making of California’s Juvenile Justice System. Berkley: University of California Press, 2012. Pgs. 6-8
[i] Morrison, Pg. 124
[ii] Morrison, Pg. 124
[i] Lombroso, Pgs. 45-57
[ii] Morrison, Wayne. Theoretical Criminology: from modernity to post-modernism. London: Cavendish Publishing Limited, 1995. Pg. 124
[iii] Morrison, Pg. 124
[i] Pascoe, Peggy. What Comes Naturally: Miscegenation Law and the Making of Race in America. Oxford: Oxford UP, 2009. Pg. 1
[ii] Pascoe, Pgs. 1-2
[iii] Lombroso, Cesare. Criminal Man. Durham: Duke University Press, 2006. Pgs. 1-5
[iv] Lombroso, Pgs. 1-5
[v] Lombroso, Pgs. 1-10
[vi] Lombroso, Pgs. 1-10
[vii] Lombroso, Pgs. 8-10
[viii] Lombroso, Pg. 9
