An Immoral Course of Life: Vagrancy Conviction for Interracial Marriage

• Publication year: 2005
• Pages: 64

34 Colo.Law. 64 Colorado Bar Journal 2005.

2005, January, Pg. 64. An Immoral Course of Life: Vagrancy Conviction for Interracial Marriage

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64

Vol. 34, No. 1, Pg. 64

The Colorado Lawyer
January 2005
Vol. 34, No. 1 [Page 64]

Departments
Historical Perspectives
"An Immoral Course of Life": Vagrancy Conviction for Interracial Marriage
by Frank Gibbard

This historical perspective was written by Frank Gibbard, a staff attorney with the Tenth Circuit Court of Appeals and Secretary of the Tenth Circuit Historical Society. The author thanks Dan Cordova of the Tenth Circuit Library for research assistance with this article. Frank Gibbard may be reached at Frank_ Gibbard@ca10.uscourts.gov. The views expressed herein are those of the author and not of the Tenth Circuit or its judges

A generation growing up in a new millennium may find it hard to believe that just over fifty years ago, interracial marriage was illegal in a majority of the states. At its peak, between 1913 and 1948, an anti-miscegenation regime was in force in thirty out of the forty-eight states, covering territory roughly congruent with today's so-called "red states," plus California and Oregon. [See map in Wellenstein, Tell the Court I Love My Wife: Race Marriage, and Law - An American History 160, fig. 8 (New York, NY: Palgrave, 2002)]

Colorado's anti-miscegenation law, in force from its Territorial days, was typical in that it made "all marriages between [N]egroes or mulattoes, of either sex, and white persons . . . absolutely void." [See, e.g., Colo. Stat. Ann. Ch. 107, § 2 (1935).] The law had a unique local twist, however: it did not prohibit "the people living in that portion of the state acquired from Mexico from marrying according to the custom of that country." [Id.] "Thus a marriage might be legal in most of Salida, but illegal over in Hollywood Heights. . . . A couple could be legally married in Buena Vista, but guilty of illegal cohabitation if they moved to Leadville." ["Colorado Once Had Two States of Marriage," 121 Colo. Central Magazine 6 (2004)].

In 1942, this statute was tested in an unusual way - on appeal from a vagrancy conviction. [See Jackson v. City &amp County of Denver, 124 P.2d 240 (Colo. 1942) (en banc).] James W. Jackson was an African-American. His common-law wife, Lydia Jackson, was white. Although they claimed to be married at common law, the Jacksons were...