Interracial Marriage Litigation Foreshadows what the Obergefell Court Chose to Address

• Author: Mark Strasser
• Position: Trustees Professor of Law, Capital University Law School, Columbus, Ohio.
• Pages: 47-57

INTERRACIAL MARRIAGE LITIGATION FORESHADOWS WHAT THE OBERGEFELL COURT CHOSE TO ADDRESS MARK STRASSER * I. ! I NTRODUCTION In Obergefell v. Hodges , the Supreme Court of the United States addressed whether states must issue marriage licenses to same-sex couples wishing to marry within the state and whether states must recognize same-sex marriages validly celebrated elsewhere. 1 While this was a case of first impression, it was not as if the Court was writing on a blank slate. 2 A brief consideration of how various state and federal courts have addressed analogous questions in the context of interracial marriage provides insight into what the Court chose to address and why. Part II of this article addresses state and federal case law concerning the constitutionality of state regulation of interracial marriage and cohabitation. 3 Part III addresses the case law regarding the interstate recognition of interracial marriage, noting that the Supreme Court of the United States has never addressed the conditions under which marriages celebrated in one state must be recognized in another. 4 The article concludes by noting that the constitutional treatment of interracial cohabitation and marriage foreshadows what the Obergefell Court refused to address and how that refusal leaves certain valid marriages at risk of interstate non-recognition. 5 Copyright © 2016, Mark Strasser. * Trustees Professor of Law, Capital University Law School, Columbus, Ohio. 1 135 S. Ct. 2584, 2593 (2015). 2 While California’s same-sex marriage ban was challenged in Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013), the Supreme Court of the United States held that those appealing the district court’s striking down the restriction did not have standing and thus the Court could not address the underlying merits of the differing positions. See id. (“Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.”). 3 See infra Part II. 4 See infra Part III. 5 See infra Part IV. 48 CAPITAL UNIVERSITY LAW REVIEW [45:47 II.! M ARRIAGE , F ORNICATION , AND A DULTERY The Fourteenth Amendment to the United States Constitution prohibits states from treating people unequally. 6 But the breadth and depth of that amendment’s equal protection guarantee has required clarification, especially with respect to its implications for state regulation of domestic relations. Not long after the amendment’s adoption, 7 the Alabama interracial marriage ban was challenged as a violation of equal protection guarantees. 8 In Burns v. State , the Supreme Court of Alabama reviewed the conviction of a justice of the peace who officiated the wedding of an interracial couple. 9 After noting that the Fourteenth Amendment states: “No State shall . . . deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws,” the court held that the “indictment fails to charge any offense, and the facts set forth in it show that no prosecution can be sustained against the defendant.” 10 While not spelling out all of the implications of Fourteenth Amendment guarantees, the Supreme Court of Alabama suggested that interracial marriage is protected and thus the state could not criminalize officiating the wedding of an interracial couple. 11 In Ford v. State , the Supreme Court of Alabama attempted to further clarify equal protection guarantees. 12 At issue was a challenge to an Alabama statute criminalizing couples living together without benefit of marriage. 13 The severity of the imposed penalty depended upon the couple’s racial composition—an interracial couple breaking this law would have committed a felony, whereas an intra-racial couple violating the law would have only committed a misdemeanor 14 —and the issue before the court was whether this differential treatment violated constitutional guarantees. 15 6 U.S. CONST., amend XIV, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). 7 Ronald Turner, Were Separate-but-Equal and Antimiscegenation Laws Constitutional?: Applying Scalian Traditionalism to Brown and Loving, 40 SAN DIEGO L. REV. 285, 333 (2003) (discussing “1868, the year the Fourteenth Amendment was adopted”). 8 See Burns v. State, 48 Ala. 195, 196 (1872), overruled by Green v. State, 58 Ala. 190, 197 (1877). 9 Id. (“The appellant was convicted and fined under an indictment, charging him as a justice of the peace, with solemnizing the rites of matrimony between a white person and a negro, contrary to the provisions of sections 3602, 3603 of the Revised Code.”). 10 Id. at 198–99. 11 Id. 12 53 Ala. 150, 151 (1875). 13 Id. 14 Id. 15 Id. 2017] INTERRACIAL MARRIAGE LITIGATION 49 The Ford court recognized that Burns protected the rights of interracial couples to marry, and described marriage as “a natural and civil right, pertaining to all persons.” 16 However, Burns only involved marriage laws and did not reach laws criminalizing fornication or adultery. 17 The Ford court upheld the differential treatment based on the couple’s racial composition, reasoning that “[l]iving in adultery is offensive to all laws human and divine, and human laws must impose punishments adequate to the enormity of the offence and its insult to public decency.” 18 The court thereby implied that interracial, non-marital relationships were more offensive to public decency than intra-racial, non-marital relationships and thus appropriately subjected to a greater penalty. 19 After Ford , the jurisprudence seemed clear. The Fourteenth Amendment precluded states from banning interracial marriage, but permitted states to punish interracial fornication and adultery more severely than intra-racial fornication and adultery. 20 But that understanding of the jurisprudence changed after the Supreme Court of Alabama issued a few opinions dealing with interracial relationships on December 1, 1877. 21 Green v. State involved the validity of the interracial marriage between Aaron Green and Julia Atkinson, the celebration of which violated state law. 22 The Green court understood that such a statute was incompatible with Burns . 23 In overruling the Burns decision, 24 the Green court explained that “[t]he amendments to the Constitution were evidently designed to secure to citizens, without distinction of race, rights of a civil or political kind only— not such as are merely social, much less those of a purely domestic nature.” 25 But, if the Fourteenth Amendment did not reach state regulation of domestic relations, such as marriage, and if Congress had not passed valid legislation 16 Id. 17 See id. (“The latter case involved only the validity of the statute prohibiting marriage between whites and blacks. The validity of the statute prohibiting such persons from living in adultery was not involved.”). 18 Id. 19 See id. 20 See supra notes 12–19 and accompanying text. 21 See Hoover v. State, 59 Ala. 57 (1877) (appeal of conviction for interracial fornication or adultery); Green v. State, 59 Ala. 68 (1877) (appeal of conviction for interracial fornication or adultery); Green v. State, 58 Ala. 190 (1877) (appeal of conviction for intermarrying). 22 Green v. State, 58 Ala. at 190, 191 (1877) (“The question this record presents is, whether or not the State may make the marriage of a white person with a person of the negro race, a punishable offense.”). 23 See id. at 192 (discussing Burns v. State, 48 Ala. 195, 196 (1872)). 24 Id. at 197. 25 Id. at 196. 50 CAPITAL UNIVERSITY LAW REVIEW [45:47 precluding states from prohibiting interracial marriage, 26 then Alabama was free to adopt its antimiscegenation statute. 27 Even if the Green court were correct that the Burns court erred with respect to the proper construction of the Fourteenth Amendment, a separate issue involved the proper disposition of this case where the marrying couple had reasonably believed that no valid law barred their marriage. 28 The Green court realized this and suggested: “[i]n view of the decision made by our predecessors in Burns v. The State, . . . which is hereby overruled, we trust that the Executive of the State will find just reasons in this case, why appellant should receive a pardon.” 29 In Hoover v. State , the Supreme Court of Alabama addressed the conviction of Robert Hoover for having engaged in interracial adultery or fornication with Betsey Litsey. 30 In his defense, he claimed to have married her before they had been indicted. 31 Further, Robert testified that he had asked the probate judge if he was permitted to marry a white woman, and the response had been in the affirmative. 32 The state objected to the testimony, 33 however, and the circuit court sustained the objection. 34 Robert took exception to that ruling. 35 The Supreme Court of Alabama held that the circuit court was correct to preclude Robert from testifying that the probate judge had told him that 26 Id. at 197 (“No amendment to the Constitution, nor any enactment thereby authorized, is in any degree infringed by the enforcement of the section of the Code, under which the appellant in this cause was convicted and sentenced.”). 27 Id. at 196. 28 Hoover v. State, 59 Ala. 57, 60 (1877) (“The law makes the act the offence, and does not go farther, and require proof that the offenders intended, by the prohibited act, to violate the law . . . . There is no error in the [conviction], but we consider this a case for executive clemency . . . .”). 29 Green , 58...