INTERMARRIAGE AND THE FEDERAL CONSTITUTION
The constitutionality of State statutes and judicial decisions which have refused to recognize marriages between Negroes and white persons celebrated in other States or in the District of Columbia have been attacked on two grounds: First, that they are in violation of article one, section ten, of the Constitution of the United States, which says, in part, that no State shall pass any law impairing the obligation of contracts; and, secondly, that they contravene that part of the Fourteenth Amendment which says that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.
Marriage is declared by the statutes of the States which prohibit intermarriage, just as by other States, to be a civil contract. If it is a contract and if marriage between a white person and a Negro in Massachusetts, for instance, is valid, when the parties go to South Carolina to live, how can the South Carolina courts declare the marriage a nullity and prosecute the parties for fornication and adultery without contravening the Federal Constitution? The only answer is: Marriage is a civil contract, but it is something more. Almost without exception, the courts have held that a State has the absolute control of the marriage status within its borders. The early case of State v. Gibson,[[209]] coming in 1871 during Reconstruction, sounded a warning to the Federal Government’s interfering with the laws of marriage. The court said: “In this State [Indiana] marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself, is recognized in all Christian and civilized nations, and is essential to the peace, happiness, and well-being of society. In fact, society could not exist without the institution of marriage, for upon it all the social and domestic relations are based. The right of all the States to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the States suffer or permit any interference therewith. If the Federal Government can determine who may marry in a State, there is no limit to its power....”
The Supreme Court of Alabama[[210]] in 1872 declared that the laws against intermarriage did contravene the Civil Rights Bill and the Fourteenth Amendment. But this case was expressly overruled by Green v. State,[[211]] in which the court, answering both of the objections, said, “Marriage is not a mere contract, but a social and domestic institution upon which are founded all society and order, to be regulated and controlled by the sovereign power for the good of the State; and the several States of the Union in the adoption of the recent Amendments to the Constitution of the United States designed to secure to citizens rights of a civil or political nature only, and did not part with their hitherto unquestioned power of regulating, within their own borders, matters of purely social and domestic concern.”
There are Federal cases to support the position of the State Courts. But it is of no use to pile up citations of decisions further to establish the well-accepted doctrine that marriage is more than a civil contract, that it is a domestic institution, and that a State, by virtue of its police power, has absolute control as to who may contract marriages or live in that relation within its borders.[[212]]
Twenty-six States and Territories prohibit intermarriage between the white and other races. They recognize as valid such marriages when contracted in a State which allows them, unless the parties are trying to evade the laws of the State of their domicile or of their intended matrimonial residence. The States prescribe a heavier penalty for illicit intercourse between white persons and persons of another race than for the same offence between two persons of the same race; they inflict heavy punishments upon ministers and other officials who perform a marriage ceremony between a white person and one of another race, and upon those who issue licenses for such a marriage; and they declare the offspring of such marriages illegitimate and incapable of inheritance. In each of these positions, the courts, Federal as well as State, have upheld the twenty-six States and Territories.
Twenty-four States and Territories do not prohibit intermarriage between the white and other races. It is not within the province of this study to consider the actual amount of admixture that is going on in these States. But inasmuch as Boston has often been cited as the city in which the number of marriages between white persons and Negroes is very large (estimated by Senator Money, of Mississippi, at 2,000 in 1902), the report of the registry department of Boston for the years 1900–1907 is here added: