Monday, June 18, 2007


Why Are Opponents of Same-Gender Marriage in Massachusetts Clinging to a Racist 1913 Law -- Invalidated by the U.S. Supreme Court's 1967 'Loving v. Virginia' Decision -- to Keep Out-of-State Gay Couples From Tying the Knot In the Bay State?

The case went far beyond Garner (left) and Lawrence (right), making the case a landmark in judicial history.

Tyron Garner (left) and John Lawrence were an interracial gay couple who -- like Richard and Mildred Loving before them in 1958 -- were arrested after sheriff's deputies burst into the bedroom of their Texas home in 1998. But whereas the Lovings were convicted under Virginia's anti-miscegenation law, Garner and Lawrence were convicted under Texas' anti-sodomy law, which banned sexual relations between adults of the same gender. The couple challenged the law in court on invasion-of-privacy grounds. In 2003, the U.S. Supreme Court declared the law -- and similar statutes in 12 other states -- unconstitutional under the 14th Amendment. That ruling, which fully legalized homosexual relations between consenting adults, could ultimately pave the way for the legalization of same-gender marriages throughout the country. (Archive photo by The Associated Press)

By Skeeter Sanders

As the 40th anniversary of Loving v. Virginia -- the landmark U.S. Supreme Court ruling that struck down state laws barring interracial marriage -- was celebrated last week, one segment of the American populace marked the occasion by vowing to redouble its efforts to make it legally possible for its members to marry one another in all 50 states.

That segment is the estimated 15 million Americans who are gay -- barred by law in all but one state from marrying one another. And even in the one state where gay couples are allowed to marry -- Massachusetts -- only those who live in the Bay State can do so.

Fresh from successfully beating back a three-year campaign by conservatives to outlaw same-gender marriage by way of an amendment to the Massachusetts Constitution, gay advocates said Friday that they have one more obstacle to overcome: A 1913 state law that bars same-gender couples in all 49 other states from coming to Massachusetts to get married.

Massachusetts lawmakers last week voted to kill the proposed amendment -- effectively upholding a 2003 ruling by the Massachusetts Supreme Judicial Court that same-gender marriage in the Bay State is guaranteed by the state constitution's equal-rights amendment, adopted in 1974, which bans gender-based discrimination.

The court's ruling took effect on May 17, 2004 -- ironically, the 50th anniversary of Brown v. Topeka Board of Education, the landmark U.S. Supreme Court ruling that outlawed racial segregation in the nation's public schools and inspired the launching of the African American civil rights movement a year later.

1913 Law Firmly Rooted in Bans on Interracial Marriages

Supporters of same-gender marriage argue that the 1913 law, which bars couples from marrying in Massachusetts if they could not do so in their home states, has its roots in the turn-of-the-20th-century effort to outlaw interracial marriages -- and they've vowed to launch an all-out campaign to repeal it.

Opponents of same-gender marriage, including the former governor and now Republican presidential candidate Mitt Romney, have said repealing the law would make Massachusetts the "Las Vegas of gay marriage."

But this blogger -- whose parents were an interracial couple and who just entered into an interracial, opposite-gender marriage of my own last month -- has one question for both sides in this argument:

If the 1913 law was aimed at preventing out-of-state interracial couples from getting married in Massachusetts, then why is it being enforced now -- 40 years after the nation's highest court declared that all state laws that prevent interracial couples from marrying are unconstitutional?

Revisiting an Ugly Chapter in Massachusetts' -- and America's -- Racist Past

An examination of historical records by The 'Skeeter Bites Report found that, contrary to reports by local media that Massachusetts never outlawed interracial marriages among its residents, the Bay State did, in fact, have an anti-miscegenation law in place -- from colonial times in 1705 until it was repealed in 1843.

Even more surprising: The examination also found that the Supreme Court's landmark ruling in the Loving case was, in fact, a unanimous repudiation of an 1883 ruling by the high court, Pace v. Alabama, that upheld Alabama's anti-miscegenation law.

That 19th-century ruling was handed down 13 years before the high court's more infamous Plessy v. Ferguson decision that upheld the racist "Jim Crow" segregation laws of the South -- and was repudiated by the justices' equally unanimous 1954 Brown decision.

1913 Law Was Passed in Reaction to Heavyweight Champ Jack Johnson's Interracial Marriages

That the 1913 Massachusetts law in question was aimed at out-of-state interracial couples is beyond doubt when one looks at the historical context under which the law was passed. Introduced by state Senator Harry Ney Stearns on March 7, 1913, the bill quickly passed both houses of the Legislature and was signed into law by Governor Eugene Foss three weeks later.

While no record has been found of any debate by lawmakers over the bill and the motivation for it was never recorded, the law was enacted during the height of public outrage over the interracial marriages of Jack Johnson, the first African American to become world heavyweight boxing champion.

Throughout his adult life, Johnson never hid his affection for white women. But it wasn't until after he won the world heavyweight championship from Tommy Burns in 1908 -- a victory which triggered a wave of anti-black riots by whites across the country -- that Johnson's affection for white women became publicly known.

A true social rebel half a century before Richard and Mildred Loving successfully challenged a Virginia anti-miscegenation law in the Supreme Court, Johnson openly flouted a powerful societal taboo when he had numerous affairs with white women -- and touched off an avalanche of outrage from whites when he married a white woman, Etta Duryea, in 1910.

An Abuse of the Law to Punish Johnson For His Interracial Peccadilloes

Duryea committed suicide in 1911 and Johnson quickly married another white woman, Lucille Cameron. After Johnson married Cameron, two white church ministers in the South called for Johnson to be lynched. The couple fled via Canada to France soon after their marriage to escape criminal charges in the U.S.

After fighting a number of bouts in Mexico, Johnson returned to the U.S. in 1920 and surrendered to federal agents for allegedly violating the Mann Act against "transporting women across state lines for immoral purposes" by sending another white girlfriend, Belle Schreiber, a railroad ticket to travel from Pittsburgh to Chicago.

This prosecution is generally considered by historians to be an intentionally racist misuse of the Mann Act, which was intended to stop interstate traffic in prostitutes. He was sentenced to serve a one-year term in the federal penitentiary at Fort Leavenworth, Kansas. There have been recurring proposals in the years since his death in 1946 to grant Johnson a posthumous presidential pardon.

Congress Tried -- and Failed -- to Pass Anti-Miscegenation Constitutional Amendment in 1912

The Massachusetts law of 1913 was enacted after racist members of Congress -- determined to invalidate Johnson's marriage and to bar other black men from marrying white women -- actually attempted in 1912 to push through an amendment to the U.S. Constitution to make interracial marriages illegal nationwide.

The proposed "Anti-Miscegenation Amendment" failed to win the two-thirds majorities in both houses of Congress required for passage, but it sparked a movement among state legislatures across the country to pass their own laws banning interracial marriage.

By 1913, half of the 18 states that didn't already outlaw interracial marriages introduced anti-miscegenation bills, but only Wyoming's legislature was able to actually enact one. The Bay State, fearing a flood of interracial couples from other states coming to Massachusetts to get married, succumbed to racist pressures and enacted the law now in dispute.

Does all this seem familiar? It should. It was the philosopher George Santayana who warned that, "Those who fail to learn from history are condemned to repeat it." It's now apparent that today's opponents of same-gender marriage haven't learned a damn thing from this racist episode of American history.

Massachusetts state Attorney General Thomas Reilly argues that the 1913 law has nothing to do with race. Rubbish. The historical record clearly shows otherwise; the 1913 law was aimed squarely at out-of-state interracial couples.

Because of this -- and despite a subsequent ruling last year by the Massachusetts Supreme Judicial Court upholding the statute -- this blogger adamantly insists that the 1913 law is invalid under the U.S. Supreme Court's Loving decision and that Massachusetts has, therefore, no constitutional right to enforce it.

No state can enforce a law that the nation's highest court has declared to be in violation of the U.S. Constitution. The effort by gay activists in Massachusetts to repeal the 1913 law is, in this blogger's opinion, moot. Why they've never sought to have a federal court make clear that the 1913 law is null and void under Loving is beyond this blogger's comprehension.

Legal Challenges to Same-Gender Marriage Bans in Other States Now Possible

The 1913 law aside, with same-gender marriages now firmly established in Massachusetts, it remains to be seen whether such marriages must now be honored by other states under the Entitlement Clause of the U.S. Constitution -- Article IV, Section 2 -- which says: "The Citizens of each State shall be entitled to all privileges and immunities of the Citizens in the Several States..."

To date, only Rhode Island recognizes same-gender marriages granted by Massachusetts and a bill is pending in the Rhode Island legislature to legalize same-gender marriages there.

Most states now have laws prohibiting same-gender marriage, but a Massachusetts marriage certificate could provide the foundation for legal challenges of the bans in federal court.

Moreover, four states -- Vermont, Connecticut, New Jersey and New Hampshire -- have enacted laws establishing "civil unions" for same-gender couples, that grant them all the rights and responsibilities accorded to married opposite-gender couples, except for federal income-tax advantages.

A 1996 federal statute, the Defense of Marriage Act, remains on the books barring federal recognition of same-gender marriages and allowing states to refuse to recognize such marriages granted by other states.

High Court's 2003 'Lawrence' Decision May Make Same-Gender Marriage Inevitable

But in 2003, the U.S. Supreme Court issued yet another landmark ruling, Lawrence v. Texas, that declared unconstitutional the last remaining anti-sodomy laws aimed at gays. The justices explicitly repudiated the court's 1986 decision in Bowers v. Hardwick, which upheld a Georgia statute that outlawed sexual relations between consenting adults of the same gender -- even in the privacy of their own homes.

Writing for the court's 6-3 majority, Justice Anthony Kennedy declared that the Lawrence case showed that "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

Ironically, the plaintiffs in the Lawrence case were -- like the Lovings -- an interracial couple. John Geddes Lawrence, now 69, is white. Tyron Garner, who died last September of respiratory failure at the age of 39, was black. Also like the Lovings 40 years earlier, Lawrence and Garner were arrested after police officers burst into the bedroom of their suburban Houston, Texas home in 1998.

But unlike the Lovings, Lawrence and Garner were prosecuted not for being in an interracial marriage, but for having engaged in homosexual relations, which were banned under Texas' anti-sodomy statute. The couple sued on the grounds that their right to privacy was violated, by having been arrested for having consensual sex in the bedroom of their own home.

Conservative Supreme Court Justice Antonin Scalia, in a sharply-worded dissent, warned that state laws barring same-gender marriage were now in jeopardy as a result of the Lawrence decision.

Indeed, while Justice Kennedy made clear in the high court's majority opinion that the justices did not specifically address the issue of same-gender marriage, the Lawrence decision nonetheless effectively swept away the last legal justification to bar gay and lesbian couples from getting married by fully legalizing same-gender sexual relations between consenting adults in private.

Opponents of same-gender marriage, including President Bush, now concede -- at least privately -- that in the wake of the Lawrence decision, the Defense of Marriage Act may indeed be unconstitutional.

Much as their racist predecessors in Congress tried -- and failed -- to outlaw interracial marriage through a constitutional amendment a century ago, homophobic members of Congress repeated history when they tried -- and failed -- to outlaw same-gender marriage through a constitutional amendment a year ago.

Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, told reporters after the legislature defeated the similar state constitutional amendment, "no one is rushing" to push for overturning anti-same-gender marriage laws in other states. But she did express confidence that it will happen eventually.

"In the short term, we want everyone to rest, breathe and appreciate the incredible victory that took place [here in Massachusetts]," she said.

This blogger certainly is. The last time I wrote about this issue back in November, I wrote that outlawing same-gender marriage was as absurd and as unconstitutional as banning interracial marriage and concluded that "Sometime in the not-too-distant future, Americans will look back and wonder, 'What the heck were we thinking back then?'"

Seven months later, as gay men, lesbians, bisexuals and transgenders celebrate Pride Month this June, it's no longer a question in my mind of if same-gender couples will be able to legally "tie the knot" in all 50 states, but when.

Whether through marriage or though civil unions, it's going to happen.

# # #

Volume II, Number 29
Copyright 2007, Skeeter Sanders. All rights reserved.


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Stephen Clark said...

Very interesting historical research!

A couple of elaborations or corrections:

1. The 1913 Massachusetts law derived from a model law, the Uniform Marriage Evasion Act, that was promulgated by the National Commissioners on Uniform State Laws, a panel of legal experts. Whether that panel had a racist motive might be relevant. The law was enacted by not only Massachusetts, but also Illinois (1915), Louisiana (1914), Vermont (1912), and Wisconsin (1915).

2. Massachusetts certainly did prohibit interracial marriages early in the 19th century. One of the earliest and leading courts decisions on recognition of out-of-state marriages was decided by Massachusetts' high court. Medway v. Needham, 16 Mass. 157 (1819). There, the court held that although Massachusetts banned interracial marriages, it would recognize the marriage of an interracial Massachusetts who intentionally went to Rhode Island to get married because they could not get married at home in Massachusetts.

3. If the U.S. Constitution requires one state to recognize same-sex marriages celebrated in another, it would probably not be because of the Privileges and Immunities Clause of Art. IV (which Skeeter calls the Entitlements clause). Rather, it would be because of either the Full Faith and Credit Clause of Art. IV or the Due Process Clause of the Fourteenth Amendment. But most legal scholars who specialize in this subject do not believe existing precedent supports the claim that other states would be constitutionally required to recognize out-of-state same-sex marriages.

Stephen Clark is a Professor of Law at Albany Law School and proprietor of, a website a blog devoted to the issue of interjurisdictional recognition of same-sex unions.