HIJACKING CIVIL WRONGS: The Dissimilarity Between Loving v. Virginia and Same-Sex Marriage Leah D.

McLellan 2009

At approximately two A.M. on a balmy Virginia morning, Mildred Jeter Loving, and her new husband, Richard Loving, were awakened from their sleep by three flashlights beaming into their faces. What are you doing in bed with this lady? Scowled one of the officers. As Richard pointed to the marriage license from the District of Columbia which was hanging on the wall, Mildred explained that they had just gotten married some five weeks before and their marriage was legal. Unimpressed, the police carted the couple off to jail as Sherriff R. Garnett Brooks replied: that license is no good here. Mildred, age eighteen, and Richard, age twenty-four, had known one another for many years. They grew up in the same area of Virginia and, though he white and she was black, there was never any animosity between either them nor their families. The Jetters never intended to begin a civil rights stir. All they wanted to do was be married and raise a family. Proponents of Gay Marriage aka Same Sex marriage, have been pointing to the Loving v. Virginia case as a model for their own situation. The argument is that the denial of same-sex marriage is the same thing as not allowing blacks and whites to marry once was under anti-miscengenation law. Turning to Loving, and other similar cases, gay activists and their supporters have even tried to claim that the Loving case sets precedent. But does Loving v. Virginia set precedent? Does it really present a prior reported opinion of an appeals court which establishes the legal rule (authority) in the future on the same legal question decided in a prior judgment? Or has the appeal to the Loving case only been about smoke and mirrors? In order to determine this, we have to know a little about the background of Loving v. Virginia. The Law Before Loving. Like many states, Virginia had an anti-misegenation law on the books long before the oft mentioned Act To Preserve Racial Integrity (1924). As early as 1691, Virginia had outlawed interracial marriage, referring to the off-spring of such unions as an abominable mixture and spurious issue. Some of these early marriages either went unrecorded or the records had long since been tucked away elsewhere. Racial intermingling did take place, but it was a social given that people just didn't do it, at least not the acceptable folk, anyway.

In 1868, the Fourteenth Amendment would change life for a number of people. As long as the Negro was held in a state of slavery, and could be controlled by slave owners, there wasn't as much concern about interracial marriage. But though slavery faded, segregation would remain in full force in many states. The Southern States had to agree to ratify the Fourteenth Amendment if they wanted to be admitted back into the Union. So, they begrudgingly did so and, when this happened, people began to panic. This began the proposition of eugenics law into society. Professor Paul Lombardo of the University of Virginia makes a direct correlation between eugenics and the resurgence of anti-miscegenation law: In the early 1900's, the eugenics movement supplied a new set of arguments to support existing restrictions on interracial marriage. These arguments incorporated a 'scientific' brand of racism, emphasizing the supposed biological dangers of mixing the races- also known as miscegenation. Virginia and Anti-Miscegenation Walter Plecker, a close friend of Madison Grant, was the first official registrar for the Virginia Bureau of Vital Statistics. Part of his duties included overseeing the issuance of marriage licenses, birth certificates, recording divorce decrees, and the like. Plecker, a physician, had a penchant for numbers-crunching and he just-sohappened to be head of the Health Department. Basically this meant he weilded a great deal of influence and control within the State of Virginia. Especially when it came to health matters relating to public interest and safety. Plecker, like many of his day, ascribed to the one-drop theory. Basically, the one drop theory proposed the idea that if offspring from any mixed race marriage had even one drop of a non-white parent's blood, that automatically rendered said offspring as non-caucasian and, ultimately, of inferior stock. Plecker carried several racial biases of the day, among them a marked dislike for blacks as well as Native Americans. He actually believed that most Native Americans were not really pure Indian but that they had been inter-breeding with free blacks (freed slaves) for decades- a scheme Plecker believed to be cooked up by blacks so as to be able to pass off their offspring as white. (Supposedly the mix of Negro and Native American created a much lighter offspring.) Plecker was so ardently convinced of this, that he was known to have scratched over the area on birth certificates where it stated that a newborn was Indian and write underneath: NEGRO. Though pro-eugenics himself, Plecker could only influence lawmakers. He couldn't have formulated or promoted anti-miscegenation law on his own. Though some historians have attributed the 1924 Act To Preserve Racial Integrity to Plecker, the fact is that two other men played a significant role in the creation of, and acceptance of, the Act. Those men were Ernest Cox and John Powell. Cox and Powell's Eugenics Law Earnest Cox was no strange to eugenics. Author of a book entitled White America, Cox, a white supremest, outlined a historical trail which he believed proved that those white nations which intermingled their seed with the Negro ended up

becoming extinct nations over time. Cox wasn't in favor of sterilizing blacks. Nor was he a proponent of segregation law. What Cox wanted was repatriation of blacks. In the modern vernacular: send them back to Africa on the cattle boats they came here on. Of course, to make it all sound more appealing, Cox proposed that the Government help these persons in the form of $1000.00 per year (in certificates) for the rest of their lives. And, to be fair, he proposed that participation in repatriation be voluntary. Cox even drafted this into proposed legislation which he hoped to be proposed to Congress. But of the three men, Plecker, Cox and Powell, it was John Powell who was probably the most intriguing. His views included a version of anti-miscegenation law which would protect anglo-saxon music from any infusion or influence from black music. A talented pianist and composer, Powell graduated from the University of Virginia in 1901 and, shortly thereafter, went on a concert tour of Europe. While in Europe he met and made friends with writer Joseph Conrad. In 1902, after having spent some time in Africa, Conrad wrote a novella entitled Heart of Darkness. The short novel has been often looked at as a fight against good and evil, though back in those days, some people also believed it was a simplistic, cautionary tale of white supremacy. Powell was so impressed with Conrad's novella that, upon returning to the United States, he began researching black music. One of his more famous compositions was entitled Rhapsody Negre, which Powell dedicated to Conrad at his debut performance at Carnagie Hall. By this time Powell was convinced that anglo music was superior to black music. He was also committed to nationalist purity and the promotion of the white race. Powell also garnered the distinction of being the founder of the Anglo Saxon Clubs of America, an upper-crust version of the KKK, under which he issued a number of pamphlets addressing the problem of race mixing. In one of these pamphlets, Powell writes what eventually becomes the basis for the 1924 Act To Preserve Racial Integrity: 1) There shall be instituted immediately a system of registration and birth certificates showing racial composition... of every resident of this State; 2) No marriage license shall be granted save upon presentation and attestation under oath by both parties of said registration or birth certificates; 3) White persons may only marry white persons; 4) For the purposes of this legislation, the term 'white' persons' shall only apply to individuals who have no trace whatsoever of any blood other than caucasian. Though this model law was altered later on, a comparison shows marked similarities. The first part (point #1) permitted the State Registrar of Vital Statistics to prepare a form whereon the racial composition of any individual may be traced, including interracial mingling and where or when it took place in the family genealogy, if possible. This regulation of pedigree was not mandatory but it was nonetheless present.

The lack of a mandatory registration of one's race didn't guarantee that a mixed race person would be let off the hook, as the section regarding marriage licensing made it a felony for someone to falsify information in order to give, or receive, a marriage license. And, if the people applying for a license thought to lie, the consequences: If there is reasonable cause to disbelieve that applicants are of pure white race, when that fact is stated, the clerk or deputy clerk, shall withhold the granting of the license until satisfactory proof is produced that both applicants are 'white persons' as provided by this act. In order to insure that there was no misunderstanding about intermingling, point five of the final Act stated: It shall hereafter be unlawful for any white person in this state to marry any save a white person, or a person with no other admixture of blood other than white and American Indian*. For the purpose of this act, the term 'white person' shall apply only to the person who has not trace whatsoever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this act. Law Based on a Flaw White supremacy wasn't just about the alleged superiority of whites over blacks. It was about keeping the white race pure. But why? Again, the bunny trail leads us back to eugenics ideology. According to eugenics theory, everything was essentially in the genes so to speak. This included such things as intellect, criminal behavior, even sexual promiscuity and many other things. Though the mentally challenged were the most targeted group (especially when it came to implementing sterilization laws; forced asylum housing; etc), blacks were also pegged as posing a social danger. If they weren't simply criminal by genetics nature, then their genetic leanings towards idiocy made them more likely to be criminal in order to survive. There isn't time to go into the full story of genetics here, it's important to note that while the American kingpin of the eugenics movement, H.H. Goddard, was not the first to link crime and lower intellect together, but he was the first American to prove that the two co-existed. Goddard's work focused on genealogical charting, the most famous involving the Kallikak family. So influential was his work, that whole laws were based on his studies, including immigration laws which would later be partially responsible for many Jews being stranded in Nazi Germany. Of course, the ultimate end to this bunny trail lands smack in the laps of Francis Galton, and his cousin, Charles Darwin. Be that as it may, it was still flawed science. Predicting the outcome of offspring for race horse breeding (positive eugenics) is one thing; trying to parlay that into a reason for practicing negative eugenics is quite another kettle of fish. Unfortunately many American lives,

including that of the Lovings' would be traumatized, if not ruined, because of the notions of this faulty science called eugenics. A Political Shell Game As mentioned earlier, same-sex marriage proponents point to the Loving case and the denial of marriage to same-sex couples in an attempt to draw parallels between the two. Some have gone so far as to claim that the Loving case set precedent for the legalization of same-sex marriage by saying that the historical parallels beterrn the struggles for same-sex marriage and interracial marriage are striking. But a precedent isn't determined solely on general similarities. Indeed, the only similarity really is that someone is being denied a state- recognized union called marriage. If general similarities could set precedent, then dogs (if they could speak) could claim that they, too, had certain rights under the Fourteenth Amendment because they were made to wear collars, just as blacks were once made to wear collars as slaves. The fact is, a generic similarity (such as being refused marriage) means nothing. Lots of people are told they cannot get married, for example: biologically related persons; people with certain medical conditions; people under the age of majority; etc. In order for a previous legal decision to be applicable as a precedent, it has to adhere to certain general rules: 1: The situation in question has to occur in the same jurisdiction (from higher court or court of equal rank if an appellate court); 2: The situation muse be applicable to the same law; 3: There must be a factual similarity; 4: It must be holding and not dictum. Basically what this boils down to is that, in order for a previously determined law to be applicable as setting a precedent, the issue being heard has to be VERY similar to the law being used as the precedent. Not merely have a common general similarity. The big question is: does the Loving case ruling set a genuine precedent for same-sex marriage? The answer must be a resounding no, it does not. But whenever the gay activists and their supporters want people to think it does, they conveniently quote from the Supreme Court's decision in the Loving case: 'The freedom to marry has long been recognized as one of the vital personal rights essential to the order and pursuit of happiness,' said the Court's majority opinion. The case erased Southern state's laws barring whites and blacks from marrying-- a unique historical precedent to the prohibition homosexuals now face. The shell game at hand is this: make people think that the Loving case was determined solely by the issue of race, without anything else influencing the Court's decision that the State of Virginia had violated the Fourteenth Amendment. And, while you're at it, eliminate any distinctions between race and sexuality. Let us take a look at the historical differences between the Loving case and the

denial of State marriage licenses to same-sex couples. Distinctive Characteristics In Loving, we have a couple who was denied a marriage, not merely a license to marry. Without any due process, they were arrested, convicted of a felony charge, and told that they must either leave the State for no less that twenty-five years or spend the next year in the State penitentiary. Their already established marriage was dissolved without any due process as well. And all of this based on one thing: faulty science. In this case, it was white supremacy masquerading as science. Even the Supreme Court recognized this in their decision: There can be no question that Virginia's miscegenation statutes rest solely upon the distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged by members of different races. Over the years, this Court has consistently repudiated the distinctions between citizens based solely because of their ancestry. The Court went on to say: There is patently no legitimate overriding purpose independent of invidious discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. The Court understood what was going on. They knew it was a eugenics-based law. They also knew that proscribing behavior (condemning it as harmful even before it takes place) to another human being is not the stuff of American law. In this case, the assumption in the Virginia act was that the Loving's marriage would result in the birth of mongrel children which, in turn, take the State and the Nation down, as well as the white race in general. Interestingly enough, such a thing has never, in the history of America, been attributed to homosexuals. Of course, it doesn't take a rocket scientist to figure out that two homosexual males or two lesbian females, aren't going to be able to reproduce on their own. Baby making is still an egg-sperm proposition and, by it's very nature, quite heterosexual. Secondly, the law has never prohibited homosexual men from marrying lesbian women because of flawed eugenics laws, nor for any other reason. The term same-sex is used by the rights advocates to counter-act this fact. But it is still a fact that homosexuals can marry- as long as they marry a homosexual of the opposite gender. Another point to ponder is that, in the Loving case, the racial difference was obvious. Though there is mention that Mrs. Loving may have been part Native American, she was obviously majority black. It is also obvious that Mr. Loving was white. Therefore, it was a simple task to conclude that this law singled them out ofr

invidious discrimination. On the other hand, what exactly does same-sex mean? Presumably it means two or more people of the same gender. Canada's model defines marriage now as a lawful union of two persons to the exclusion of all others. So that puts to rest the polygamy debate- if all states allowing same-sex marriage follow the Canadian model. What it doesn't do is stipulate who those two people are supposed to be. Must they be homosexual? What if two heterosexuals want to help one another out with benefits one gets only through marriage? Can they just have a same-sex marriage also? In the 2008 spoiler for Boston Legal, the characters Denny Crane and Allan Shore, decide to get married. Both characters are straight, ardent womanizers, with a long and close friendship which never hinted of a homosexual relationship. While the show offered a laugh, it also presented a very real possibility: how can people prove that they're homosexual? The State could have a compellling interest in denying same-sex marriage based on the premise that to allow it could open up a Pandora's Box in terms of other rights violations. For example: how would a couple prove that they're sincere homosexuals seeking a same-sex marriage? Such a thing cannot be proven by family tree. How could it be done without an invasion of privacy or the potential thereof? Of course, nobody asks heterosexuals to prove straightness. But the law makes certain assumptions when it comes to marriage, and one of those was alluded to by the Supreme Court in it's ruling on the Loving case: Marriage is one of the basic civil rights of man, fundamental to our very existence and survival... What did the Court mean by fundamental to our very existence and survival? They were referring to the propagation of the human race in general. In so doing, the Court saw child-bearing a a factor (albeit not the only factor) in the purposes of marriage. Two people of the same gender cannot propagate. Summary At the present time, there are no states restricting a gay male from marrying a lesbian. If a gay man and a lesbian marry, they will not have their marriage dissolved by the state, nor will they be accused of potentially having mongrel offspring. But using the Loving case as precedent to change laws, for no other reason that we want it is an abuse of one of the most important legal cases in American history. To do this reduces the importance of dissolving the last vestiges of one of the darkest times in American history (the eugenics movement) to a political pawn for personal satisfaction and political gain. Sources: U.S. Supreme Court, Loving v. Virginia, 388 U.S.1 (1967)

An Act to Preserve Racial Integrity, 1924 Eugenics Archives, Paul Lombardo, Eugenics Laws Against Race Mixing Time Capsules, Larry Hall, Aug. 20, 2003, Composer John Powell Left Controversial Legacy John Powell: His Racial and Cultural Ideologies, David Z. Kushner Cox, Earnest Sevier, White America, 1923, Richmond White American Society Montgomery Advisor, July 16, 1997 Loving Case's Lessons Linger, Major W. Cox, Grant Madison, The Competition of Races, from the Passing of the Great Race, Arno Press and New York Times, 1970 A Bill to Provide for the Voluntary Repatriation to Their African Homeland, featured in White America ACLU Northers California: http://www. aclunc.org/lesbian-and-gay/knight.html