If, on the other hand, the parties leave a State which prohibits intermarriage and go to another State which allows it, solely for the purpose of evading the laws of the former State, the authority is practically unanimous that the marriage is not valid in the State the laws of which they attempted to evade. This point is covered both by statute and by judicial decision. A Delaware statute, for instance, declares that the Negro and white person are equally guilty if they are married in another State and move into Delaware as if they had been married in Delaware. Mississippi, also, punishes parties attempting to evade its laws by marrying out of the State and returning to Mississippi, to the same extent as if they had attempted to intermarry in Mississippi. The Georgia statute, which is typical, is as follows: “All marriages solemnized in another State by parties intending at the time to reside in this State shall have the same legal consequences and effect as if solemnized in this State. Parties residing in this State cannot evade any of the provisions of its laws as to marriage by going into another State for the solemnization of the ceremony.” Statutes to the same effect are in force in Arizona, Virginia, West Virginia, and possibly other States. In the absence of statute, the point is covered with the same result by judicial decision. In the Tennessee case, to which reference has already been made, the court said: “Each State is sovereign, a government within, of, and for itself, with the inherent and reserved right to declare and maintain its own political economy for the good of its citizens, and cannot be subjected to the recognition of a fact or act contravening its public policy and against good morals, as lawful, because it was made or existed in a State having no prohibition against it or even promoting it.”
In 1878, a Negro man and a white woman went over from Virginia[[205]] into the District of Columbia, were married, and returned to Virginia, where they were prosecuted. The Virginia court held that, although the forms and ceremonies of marriage are governed by the laws of the place where marriage is celebrated, the essentials of the contract depend upon and are governed by the laws of the country where the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. This case was affirmed by the Federal court[[206]] the next year. A Georgia[[207]] couple who also went to the District of Columbia to be married, returned to their native State, where they were indicted and convicted for violating the Georgia statute against intermarriage.
It appears that Washington has been and is the City of Refuge for such miscegenating couples. It has been held, however, in every case, that, when these people return to Southern States, no matter where married, they are amenable to the laws of those States. In fact, there appears to be only one American case with regard to Negroes which holds a contrary doctrine, the case of Medway v. Needham.[[208]] There a white person and Negro, living in Massachusetts, which at the time, 1819, prohibited intermarriage, went to Rhode Island, where they were married and whence they immediately returned. The Supreme Court of Massachusetts held that a marriage, if valid where celebrated, is valid everywhere; the court taking no account of the purpose of the parties to evade the law. In rendering this decision, the Court admitted that it was going counter to the opinion of eminent jurists. The decision has not been followed, it appears, by any other court. It may be taken as settled that, if the parties leave the State for the purpose of evading its law, intending at the time to return to that State, the marriage will not be recognized as valid when they do return. But, if they leave the State to evade the law, not intending at the time to return and do gain a bona fide residence in another State and, after that, do return, the marriage will be recognized. In other words, to furnish a State grounds to declare void a marriage celebrated in another State where it is valid, the parties must intend not only to evade the law but also not to gain a bona fide residence in the State to which they go.
Efforts have been made to prohibit intermarriage in the District of Columbia. At the last session of the Sixtieth Congress, Senator Milton, of Florida, introduced a bill to make intermarriage between white persons and Negroes a crime punishable by imprisonment for ten years and a fine of one thousand dollars, providing that one with one-eighth or more Negro blood should come within the prohibition, declaring such marriages to be null and void and the issue resulting from them illegitimate and so incapable of inheritance. This bill apparently died in the committee room. A resolution in the Senate to recall it from the Committee on the Judiciary was tabled on March 1, 1909, by a vote of 43 to 21.
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.