Posted in African Americans, Japanese Americans, law, marginalization, Native Americans, paternalism, racism

What Comes Naturally: Miscegenation Law and the Making of Race in America

Pascoe, Peggy. What Comes Naturally: Miscegenation Law and the Making of Race in America. Oxford; New York: Oxford University Press, 2010.

Peggy Pascoe’s What Comes Naturally shows how miscegenation laws turned courts and state legislatures into factories of institutional racism, producing race in everything from “language to criminal prosecution to the structuring of families.”[1] Pascoe argues that beginning in the 1860s, the idea that interracial marriage is unnatural converged with a belief in white supremacy, giving birth to the term “miscegenation.”[2] At a time when slavery was still legal in the U.S., but on the verge of the Civil War, these new laws didn’t discourage slaveowners from sexually engaging with their slaves or having mixed-race children. However, they legally prevented these men from turning female slaves into respectable wives who were entitled to citizenship rights and property inheritance.[3] Judges established these laws through a process that delineated legitimate marriage against illicit sex, which ultimately cast all interracial relationships as immoral. Interracial couples found themselves in a legal and moral quandary because those who were not allowed to marry could be prosecuted for illicit sexual relations. Pascoe successfully demonstrates through legal case studies that fundamental matters of citizenship and freedom were at stake, not only for Whites and Blacks, but for people defined within any racial category.[4]

Signifying the wide reach of these laws (both in time and place), the cover photo displays Harry Bridges and Noriko Sawada, who in 1958, tried to get married in Reno, Nevada, but were refused by license clerk, Viola Givens, who insisted that race outweighed citizenship rights where marriage was concerned.[5] The couple was married later that same afternoon after Bridges, a well-known labor leader, took Sawada, his lawyers, and an entourage of reporters to the office of district judge Taylor Wines to request him to order the clerk to issue the license based on California’s exception of miscegenation law.[6]  Pascoe shows through this and other court cases how marriage licensing became the dominant enforcement tool for these laws.[7]

Reform activism challenged prevalent notions of the unnatural nature of interracial marriage by framing marital partner choice as a natural and civil right. One case in particular, Perez v. Sharp, set the precedent in 1948 for finding miscegenation laws unconstitutional when California lawyer, Dan Marshall, argued the case as a freedom of religion issue. Experts were challenged in open court about outdated and debunked racial evidence that the law was originally based upon. Black newspapers reported the testimonial shift from “‘democratic’ America to Nazi Germany” as the “grotesque reasoning of eugenicists” came under fire.[8]  In the end, the six judges were equally divided on the decision. The seventh and deciding vote came from Justice Douglas Edmonds who accepted Marshall’s religious freedom argument.[9] Unfortunately, the decision did not settle matters once and for all; however, Pascoe shows how it open the door for other couples, such as Bridges and Sawada, to legally marry.

Pascoe indicates that the NAACP maintained conventional views of sex and gender, fearing that challenging anti-miscegenation laws would jeopardize their anti-segregation efforts.[10] It wasn’t until the 1950s that the NAACP adopted a legal strategy around the Fourteenth Amendment’s equal protection clause. The Supreme Court heard the case of Loving v. Virginia in 1967 and overturned miscegenation laws on the basis that they denied a “fundamental freedom on so unsupportable a basis as the racial classifications.”[11] Pascoe seems wary about the long-term effects of the Loving decision, especially related to notions of colorblindness, noting how the conservative right has used colorblindness to “roll back hard-won civil rights programs,” such as Affirmative Action.[12]

Pascoe effectively uses sources to illustrate how state-sanctioned marriage became the cornerstone of America’s institutional racism. However, she did not include many examples of the victories won by the other side or of instances where interracial couples were allowed to marry. She briefly discusses legal marriages between Filipino and other races in Los Angeles up until the early 1930s, but does not analyze that example within the context of her larger narrative.[13] Her overall argument would have been stronger had she analyzed why, when, and where some interracial marriages were allowed while others were denied. This information would have helped support her contention that laws shape social norms.

What Comes Naturally reveals how marriage law can be used as a powerful tool for discriminating against others based on what is considered “natural.” Pascoe’s argument is relevant to current debates over gay marriage.

[1] Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford; New York: Oxford University Press, 2010), 14.

[2] Ibid., 1.

[3] Ibid., 27.

[4] Ibid., 12-13.

[5] Ibid., 235-37. Givens stated, “It’s not where you were born. It’s blood that counts.”

[6] Ibid., 235-36.

[7] The power and authority that county clerks have over issues of a person’s right to marry was recently called into question by the actions of Rowan County, Kentucky clerk Kim Davis in September 2015 following the U.S. Supreme Court decision that legalized gay marriage nationwide. Davis claimed that her religious convictions prevented her from issuing marriage licenses to same-sex couples. The state responded by passing a law that no longer require clerks to sign their names to the license. “Kentucky Bows to Clerk Kim Davis and Changes Marriage License Rules,” The Los Angeles Times, December 23, 2015, accessed September 26, 2016, http://www.latimes.com/nation/nationnow/la-na-nn-kentucky-kim-davis-20151223-story.html.

[8] Pascoe, 217-18.

[9] Ibid., 218.

[10] Ibid., 186, 204.

[11] Ibid., 284.

[12] Ibid., 303-04.

[13] Ibid., 132-33.

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