| James Trosino, American Wedding:
Same-Sex Marriage and the Miscegenation Analogy, 73 B.U. L. Rev.
93 (1993). Total pages read: 7.
This article compares the history of interracial marriages
with that of same-sex marriages. This annotation is only going to
focus on the miscegenation laws and the view society had of
children born out of interracial marriages. The author states
that the freedom to marry has long been recognized as one of the
vital personal rights essential to the orderly pursuit of
happiness by freemen.
Historically, however the freedom of marriage was not always
granted between races. Virginia first enacted a statutory
proscription of miscegenations marriage in 1691.10 Penalties were
severe-the White partner in an interracial marriage was banished
from the colony, and any child of the marriage was bound out by
the church wardens until he/she reached the age of 30.11
There were many justifications to uphold the laws which stated
that marriage between races were forbidden and criminal. Three
major justifications are explained by the author which are: White
supremacy, protection of White womanhood, and the prevention of
mixed race offspring. The third justification was based on
popular belief that children of interracial marriages were
mentally and physically inferior to pure White race children.12
These racist beliefs concerning the inferiority of mixed race
children were not confined to the uneducated masses. The science
of Eugenics also supported the belief that children produced from
these interracial marriages were inferior. The science is based
on the proposition that most human ills are hereditary and that
the human race can be perfected by encouraging the mating of
healthy productive stock and discouraging the reproduction among
the less fit.13 Thus, bans on interracial marriages were
supported by science and non-science means.
This author goes back in history and talks about the past
views of interracial marriages and the justifications for its
criminal penalties. Even though this article is used as a
comparison between interracial and same-sex marriages, it gives a
vivid history of interracial marriages and how the children of
these marriages were viewed by society.
Peter Wallenstein, Race, Marriage, and
the Law of Freedom: Alabama and Virginia, 1860's-1960's, 70
Chi.-Kent L. Rev. 371 (1994). Total pages read: 34.
In this article, Peter Wallenstein goes into great detail of
the evolution of interracial marriages in Alabama and Virginia.
First, the author talks about the origins of laws against
interracial marriages in Alabama. The Alabama Constitution of
1865 directed the legislature to make interracial marriages
between White and people of African ancestry "null and void
and make the parties to any such marriage subject to criminal
prosecutions."14 The legislature established a penalty of
2-7 years imprisonment for both member of any interracial couple.
Penalties were also set up for any probate judge who knowingly
issued a marriage license to an interracial couple, and for any
justice of the peace or minister of the gospel who performed a
marriage ceremony for such a couple.15
This article goes on to show how the courts have adapted new
law in both Alabama and Virginia as the political, legal, and
constitutional environment determined how laws would be applied
to interracial marriage. The time periods which are focused on
are as follows: 1868-1877, 1877-1920's, 1920's-1940's, 1950's,
and the 1960's with Loving v. Virginia, and the post script of
both States after Loving. He ends the article by stating with
Loving v. Virginia, the U.S. has finally put an end to
slavery.
This bibliography will focus on the additional time periods
from 1660-1690, and 1690-1770 (the history basically holds true
for both Virginia and Alabama). These time periods are where the
history of the children born out of interracial marriages all
began. In 1662, the question in front of the legislature was
whether "children got by any Englishman upon a Negro woman
should be free or slave."16 The solution was to look at the
mother: if the non-white woman was free, her mixed-race child
would be free; but if she was a slave, then any child she had
would be a slave.
As time progressed, the laws changed, and interracial
marriages were not banned, but rather, the law mandated
banishment forever of the White party to any interracial marriage
that occurred, if free, within three months after such
marriage.17 If the child was a "bastard child" born
from a couple not going through the wedding ceremony, the child
was taken by the warden of the church in the parish and bound to
be a servant until he or she attained the age of 30.18
After 1691, the legislature reduced the percent of African
American ancestry a person had to have in them to be defined as
the mixed-race. With the new laws, more people were fined, the
penalties were higher, and now the bastard child would be bound
as a servant until the age of 31. Then in 1765 Virginia's
legislature relaxed the terms of their laws in only one
aspect-children born after this year would only be subject to
servantry for 21 years if they were male and 18 years if
female.19
Up until the 1960's, the laws against interracial marriages
stayed on the books. As time progressed the fines and penalties
decreased, but their historical effects on children were severe
and long lasting. The article does an excellent job of laying out
the history of interracial marriages, the politics, laws, and
court systems behind such marriages, and how the law viewed mixed
race children.
A. Leon Higginbotham, Jr., Racial
Purity and Interracial Sex in the Law of Colonial and Antebellum
Virginia, 77 Geo. L. J. 1967 (1989). Total pages read: 29.
The author starts out this article by stating there is no
better place to examine prohibitions on interracial sex and
marriage as Virginia. Many people see Virginia as the
"mother of Presidents" (four of the first five
Presidents were from Virginia), and the "mother of
Revolutionaries" such as Thomas Jefferson, George
Washington, and Patrick Henry.20 However, Virginia was also the
leader of slavery and one of the first colonies to formulate a
legal definition of race. After slavery was abolished the
Virginians needed other mechanisms to preserve racial hierarchy
and so laws regarding interracial sex and marriage were
introduced. The author states there are two basic concerns which
lead to the laws on interracial sex and marriage: maintenance of
a clear boundary line in a society that was based on slavery; the
protection of involuntary interracial sex (rape).21
A statutory definition of race arose because of one essential
factor-how should the mixed race offspring of these couples be
classified. With classification, people were given certain rights
and privileges. If a person was White, they received the rights
and privileges; if they were Black or of the mixed race they
received nothing. The way in which the court system determined
what rights and privileges a person received was through a burden
of proof. If the person looked White then the burden of proof was
on the State to show the person was either Black or of the mixed
race. If the person looked Black or mixed, the burden was on the
person to prove they were White and entitled to such rights and
privileges.22
The author next goes into the concern over the production of
mixed race children. The statutes were mainly concerned with the
White woman first because it was her who was directly assaulting
White racial purity. She was producing these mixed race children
when in fact she was capable of producing pure White children.
Black woman who produced mixed race children were not seen as
assaulting the White race because they were unable to produce
White children, thus did not effect the White race.23
Lastly, the article discusses prosecution of rape in Virginia.
In the 1600 and 1700's rape carried the death penalty, but by
1795 the death penalty for rape was abolished. Blacks and mixed
race people were prosecuted for rape much more than were Whites
for two basic reasons: according to the law Blacks and mixed race
people could not testify against a White person in court; and
rape by a White man was not looked down upon during these time
periods.24
The author takes a historical approach to interracial sex and
marriage and how these two actions were perceived in Virginia.
The article goes into much detail on the ideals of classification
and what benefits classification had for a society. This article
is also a perfect example to show how law is directly affected
with the changes in society's views. Natsu Saito Jenga,
Unconscious: The "Just Say No" Response to Racism, 81
Iowa L. Rev. 1503 (1996). Total pages read: 8.
The author of this article comments on those who are advocates
of the "just say no" approach to racism. This approach
basically states that we all will reject conscious racist acts
and proceed in a color-blind manner. In addition, those in favor
of this approach say that to effectively counter racism we can
ignore race and create interracial families.25
The author says that ignoring race is flawed because racial
identity is unavoidable and has very real consequences. What
needs to occur is the recognition of racial consequences, and to
teach children about these consequences. The author gives three
reasons for the recognition and teaching to children: the
consciousness of racial identity is unavoidable in this society;
if we do teach our children about these realities they can grow
up proud, happy, self-confident, and can recognize and resist the
messages of racism; and that in America today people of all
backgrounds will continue to be damaged by the very concrete
effects of racism as long as it permeates our society.26
The author goes on to strictly analyze the second way to
effectively counter racism-create interracial families. The
advocates of this theory say that family relationships hold the
key to the resolution of racial conflicts and if family ties make
it across racial lines we will more quickly consume racism than
by any other force.27 However, this argument is flawed because
our schools, social lives, and any other aspect of life, are so
frequently segregated that interracial couples must make constant
choices about which communities to participate in, and
multiracial children are continually confronted by questions of
cultural and racial identity. Our society is based on Black and
White, and those children in the middle need to understand that
dealing with and not ignoring racism (pretending it does not
exist) is the key to create a non-racial society.
The author in this article, I believe, rightly rejects the
"just say no" argument. If (this is a huge if) we could
get everyone to ignore race then this approach would work
wonderfully. However, as the author points out, "we cannot
click our heels three times, just say no, and make racism
disappear."28 Our society needs to confront and struggle
with racism, not ignore it, for out country to be free of
racism.
Emily Field Van Tassel, "Only the Law
Would Rule Between Us:" Anti-miscegenation, the Moral
Economy of Dependency, and the Debate Over Rights After the Civil
War, 70 Chi.-Kent L. Rev. 873 (1995). Total pages read 26.
The author looks at interracial marriage, perceived by White
people, as a method that Blacks were using to achieve racial
equality. Whites feared that interracial marriage would undermine
the assumed superiority of White and Black and the legal
foundation for dependency on White men that extended to woman and
children as well as to Blacks. According to this author, the
White men were less concerned about the mixed race children born
out of these relationships then they were for the implication of
social equality that mixed race marriages implied.
She goes on to say that for nearly the whole 250 years of
slavery in America, one constant in the regulations of the
institution was the prohibition on sexual relations between
Whites and Blacks.29 During this time, the mixed race children
showed to be profitable to the South because if the mother was a
slave, then the child was automatically a slave and this in turn
produced free labor. However, once the emancipation of the slaves
occurred, the Whites felt threatened because there was no longer
a legal structure of inferiority and servitude defining racial
boundaries. Thus, the Whites power could no longer be taken for
granted which resulted in the laws against interracial
marriages.
The article goes into may more aspects on interracial marriage
like "the dependency rights" and "what constitutes
manhood," which in history to be a man the person had to be
White. The article does a fine job in showing the major concerns
White men had during the 19th century regarding interracial
marriages, and how they tried to preserve White supremacy.
Christine B. Hickman, The Devil and the
One Drop Rule: Racial Categories, African Americans and the U.S.
Census, 95 Mich. L. Rev. 1161 (1997). Total pages read: 15.
The author analyzes the "one drop rule" and how this
rule placed people into racial categories. Historically, in some
regions if a person had one drop of Black blood in them they were
automatically a Black person, which basically gave them no rights
and privileges. On the other hand, as history progressed, the
White legislatures were cautious on their definition of a Black
person. The main concern was that if they pushed the definition
of Black to the extreme, many prominent White families would have
been embarrassed by the consequences of distant unknown Black
ancestors.30
She next examines the proposal which stated that every person
chooses their race by their daily actions and not by skin color.
She has observed that society does not tie skin color to a White
person who makes certain decisions, but let the person be Black
and whatever choices that person makes will automatically be
related to their skin color. Therefore, she says race is dictated
by society and genealogy and a person has no choice of their
race.
The focus of this article deals with the U.S. Census and how
children of mixed families should register their identity. The
author proposes that three boxes should be placed in the
census-White, Black and Multi-race, with a line for description
under multi-race.31 She believes that multiracial children are
not treated fairly under the laws and they need their own racial
identity. She proposes that a multiracial box will have an
adjoining line, which will allow the person to identify their
parents racial groups. Then the multiracial children can identify
to which group they belong to whether it is White, Black, or
mixed race. With the accompanying inquiry line, they can be
counted as multiracial for the census. Thus, multiracial people
will be more accurately counted and society can better evaluate
progress to end racism.
There are opposing views to the census modification. One side
says there should be no change to the census because only having
Black and White categories better assures safeguarding voting
rights, job opportunities, and school segregation plans, as well
as to effectively enforce anti-discrimination laws in favor of
Blacks. On the other side there are arguments that the absence of
a multiracial category deprives millions of citizens the right to
freely express their true racial identity.32 Without the
multiracial box, the author argues that multiracial people do not
officially exist.
The author points out some interesting and persuasive
arguments for the census modification. If society wants to
continue to effectively fight racism, we need an accurate
accounting of the racial makeup of our country. A count that is
necessary to gauge the racism that still faces both minority and
biracial Americans.33
Paul C. Rosenblatt, Terri A. Karis, & Richard D. Powell,
Children, Multiracial Couples
(1995). Total pages read 22.
This chapter not only shows the troubles biracial children may
face as they grow up, but the advantages a child may have because
he/she is biracial. First, a discussion will address the negative
effects biracial children may face. A child needs to be
completely prepared to face racism. Categorization and racism
pose a problem to a biracial child. Those who are racist thinkers
need to place everyone into a category, but a biracial child does
not fit neatly into a category. Racists may become more resentful
and more racist towards these children, and these children may
draw inordinate amounts of attention in situations in which the
usual racial category system has no clear place for somebody who
seems not to fit in one category or another.34
A second problem a biracial child may experience is that
he/she could encounter an identity crisis because they embody two
racial groups that are defined very differently in the category
system of American racism. When the child is old enough to
understand their identity, the parents need to step in and
educate the child. This is not always easy for the parents who
usually come from two completely different backgrounds. However,
parents have concurred that it is absolutely essential that a
biracial child have a clear and positive sense of
identity.35
A third problem a biracial child may face is conflicts with
their grandparents. At times grandparents may become very
attached to the child and the biracial family will draw closer
together. However, even though the grandparents are very attached
to the child, at times the White grandparents historic views
overcome them, and they will still keep their distance because of
the fear they will get labeled for associating with a Black
family.36 This resentment and distance of the grandparents leaves
a lasting impression on the biracial child and how they are
viewed by society.
One last negative effect children receive because of their
racial identify comes from their siblings. Some biracial children
can pass as White while others can not. This can result in the
whiter child receiving privileges society will deny to the darker
skinned child. This will ultimately lead to resentment in the
family and barriers to sibling closeness. On the other hand, the
child who can pass as White may bring with them a lifetime of
identity struggles, the unpleasantness of secret keeping, and
personal and family pain arising from efforts to hide the
existence of relatives of color.37
There are some advantages to biracial children and their
families. First the child has the particular value of knowing
multiple racial perspectives and will be better able to relate to
people in more than one racial group. In addition, some parents
learn things about their own sense of identity as they work in
bringing up their own children which helps both the child and
parent. A second advantage is within education. A biracial child
can gain the educational advantages which are given to children
of color.38 One example is the Negro college fund. These benefits
have been established to achieve educational goals for the whole
population and t attempt to reduce the damage caused by
racism.
The authors of this book focus on some of the prevalent issues
that concern biracial children and their families. These issues
are presented on first hand accounts with many examples.
Therefore, those who better understand through examples and
illustrations would be encouraged to review this book.
Allan C. Brownfeld, Children in
Interracial Homes, Marriage Across the Color Line (1965). Total
pages read: 13.
The author first addresses the issue of biracial children by
saying that there is no authoritative evidence that an
interracial home life is harmful to a child.39 He continues by
saying that children must, from the outset, have formed the
impression that diversity of physical type is a normal human
condition. This education process has to begin when young
children initiate questions of skin color and the like. The
education has to be presented in such a manner that is easily
understood by children. Furthermore, to eliminate information
overload, the education should be given in small doses to meet
the concerns of the child.
In achieving the goals of education, the parents must strive
to show that one kind of physical type is as good as another, and
it is normal and alright to be different. This book is a bit
outdated, but it shows the concerns parents will have in raising
their biracial children, what questions to expect, how to
confront these questions, and what the parents can do to better
prepare themselves and their children for a world of
racism.
Vladimir Piskacek & Marlene Golub, Children
of Interracial Marriages, Interracial Marriages: Expectations and
Realities (1973). Total pages read: 11.
The two authors of this book state that the biggest problem
facing biracial children is an identity crisis. The sense of self
is derived from identity from ones parents.40 The way a child
perceives his/herself depends upon how the parents perceive the
child. If the parents are unified in their perception of the
child, the child is more likely to have an integrated sense of
self despite the fact he/she is comprised of more than one race.
To resolve the identity crisis, the parents have to discuss
openly how they will raise their children. Identity is a lifelong
process. The parents must provide secure role models with which
the child can identify. More importantly, is the fact the parents
must take these role model identities and unite them into a
common perception to provide a consistent reinforcement of the
child's values as a person in terms of sameness and continuity
over time.41
The authors note that there are basically three stages when a
biracial child's identity can be negatively effected. The first
point in this time line is when one parent tells the child he/she
is White and the other parent tells the child he/she is Black.
The second clash of identity arises between the child's choice of
identification whether it is Black or White and the negative
parental feedback from such a choice. The last point of negative
effect imposed on a biracial child's identity is when the child
and the parent agree regarding the child's identity, but society
does not agree with them.42 The authors do a good job in
explaining the identity crisis problem and the critical time
periods where the child could loose his/her identity.
Ernest Porterfield, Children of Black-White
Marriages, Black and White Mixed Marriages (1978). Total pages
read: 8.
The author suggests that neither the Black nor White community
accepts children born of mixed marriages. In addition, these
children are faced with problems that tend to produce reactions
of guilt, insecurity, anxiety, and emotional instability.
Biracial children would like to identify with both parents but
find themselves torn between the loyalty they owe each parent.
Since they cannot identity with both parents, the child feels
resentment towards one or both parents.
Another problem the child faces is being caught between the
White and Black society. The biracial child will have a higher
status in the Black community because their skin color is usually
lighter. The lighter biracial child will gain advantages over the
darker skinned children, but the lighter skinned child will be
shunned from the Black community by the Blacks and the White
community will not fully accept the child because he/she is still
of Black skin. These disadvantages will cause the child to be
caught in the middle of the two communities with no
support.
Even though the author did not use the specific words
"white privilege," he alluded to the concept when he
talked about being stuck between the Black and White
classification system. He did acknowledge the fact that skin
color does have an impact on how readily society will accept a
child and to what extent that child will receive advantages over
other children of darker skin.
Endnotes
11924 Va. Acts ch. 371.
2 Loving v. Virginia, 388 U.S. 1, 6 (1967).
3 Id. at 4 (citing Va Code Ann 20-58 (Michie 1960)).
4 Id. at 6.
5 Id. at 3.
6 Art Shriberg & Carol Lloyd, Interracial Couple Fights
Prejudice Taboo Slowly Dying as Marriages Rise, The Cincinnati
Enquirer, (June 8, 1997).
7 Id.
8 Allison Askins, Sam Boone Remembers the Day He Made the
Mistake of Drinking Water From a "Colored" Fountain in
His Hometown of Bennettsville, S.C., Charleston Gazette and Daily
Mail, (October 19, 1997).
9 Karen M. Pihl, More Integrated U.S. Sees Interracial
Marriages Increasing, York Daily Record, (November 17,
1997).
10 James Trosino, American Wedding: Same-Sex Marriage and the
Miscegenation Analogy, 73 B.U. L. Rev. 93, 97 (1993). 11 Id. at
98.
12 Id. at 102.
13 Id. at 102.
14 Peter Wallenstein, Race, Marriage, and the Law of Freedom:
Alabama and Virginia, 1860's-1960's, 70 Chi.-Kent L. Rev. 371,
375 (1994).
15 Id. at 375.
16 Id. at 389.
17 Id. at 390.
18 Id. at 391.
19 Id. at 393.
20 A. Leon Higginbotham, Jr., Racial Purity and Interracial
Sex in the Law of Colonial and Antebellum Virginia, 77 Geo. L. J.
1967, 1967 (1989). 21 Id. at 1968.
22 Id. at 1985-1986.
23 Id. at 1997.
24 Id. at 2011.
25 Natsu Saito Jenga, Unconscious: The "Just Say No"
Response to Racism, 81 Iowa L. Rev. 1503, 1506 (1996). 26 Id. at
1515.
27 Id. at 1518.
28 Id. at 1514.
29 Emily Field Van Tassel, "Only the Law Would Rule
Between Us": Anti-miscegenation, the Moral Economy of
Dependency, and the Debate Over Rights After the Civil War, 70
Chi.-Kent L. Rev. 873, 895 (1995).
30 Christine B. Hickman, The Devil and the One Drop Rule:
Racial Categories, African Americans, and the U.S. Census, 95
Mich. L. Rev. 1161, 1223 (1997). 31 Id. at 1254.
32 Id. at 1254.
33 Id. at 1265.
34 Paul Rosenblatt, Terri Karis, & Richard Powell,
Children, Multiracial Couples, 197 (1995). 35 Id. at 203.
36 Id. at 195.
37 Id. at 214
38 Id. at 196.
39 Clotye Larson, Children in Interracial Homes, Marriage
Across the Color Line, 67, 68 (1965). 40 Vladimir Piskacek &
Marlene Golub, Children of Interracial Marriages, Interracial
Marriage: Expectations and Realities, 51, 57 (1973). 41 Id. at
54.
42 Id. at 58.
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