On Which Side of History Do You Stand?

Forgive me for the long and dry history lesson, and skip ahead to the end if you feel you must. However, we are in a historic time, and it is apropos to look back at similar times to see how the forces we consider today as “good” and those we consider today as “evil” (or, more generously, “misguided”) aligned themselves. With this historical perspective, perhaps we can then look back at ourselves, from a vantage point fifty years in the future, and give an honest answer to the question: On which side of history did we stand?

Alabama, 1883

Tony Pace and Mary Cox had fallen in love in the Antebellum South. They had not been allowed to marry because Tony was a black man and Mary a white woman. While such a marriage had been deemed valid under the 14th Amendment to the US Constitution in Alabama in 1872 (Burns v. State), the decision had been reversed in 1876 by a Democrat-ruled AL Supreme Court in Green v. State.

Green v State defended anti-miscegenation laws as necessary to protect marriage “against disturbances from without”. It deemed that the state had a vital interest in promoting and protecting white family life against “elements so heterogeneous that they must naturally cause discord, shame, disruption of family circles , and estrangement”. Indeed, later on in Hoover v. State, all interracial marriages which had been previously allowed were declared “absolutely void”. (Citations: Wiki: Pace v. Alabama and Moran: Interracial Intimacy).

Pace and Cox did not seek to invalidate the anti-miscegenation law which kept them from marrying. Their sexual relationship had been found out and they each had been sentenced to two years’ imprisonment. This was larger than non-interracial fornication sentences; the discrimination was what they went to court to fight.

They lost. In Pace v. Alabama, 1883, the US Supreme Court ruled that interracial relationships may be treated as a more egregious crime than intra-racial (ie, white with white) relationships.

In other words: interracial relationships may be discriminated against so long as each individual in the relationship is treated equally.

Louisiana, 1896

In June of 1892, with conscious intent to test the constitutionality of Louisiana’s racially-segregated railcar laws, Homer Plessy took a seat in the white car of the train, refused to move, and was arrested and jailed. Plessy appealed to the judge in his case, John Howard Ferguson, that the Thirteenth and Fourteenth Amendments of the US Constitution were violated by the requirement for him to sit separate from the white passengers.

The case eventually came to the US Supreme Court as Plessy v. Ferguson, in 1896.

Plessy lost. In the summary, Justice Brown wrote “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” (Ref: Wiki Plessy v. Ferguson)

In other words: separate facilities do not treat the races with inequality. If Plessy saw it as unequal, that was his own problem.

California, 1948

Andrea Perez and Sylvester Davis met and fell in love in Los Angeles. Their families and church supported their love, and applauded their application for a marriage license.

However, Sylvester was of African descent, and Andrea of Mexican descent (which was listed as “white” and thus under the rules of anti-miscegenation). The California law at the time declared “All marriages of white persons with Negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void.”

Perez brought suit against the LA County Clerk (W.G. Sharp) to force an issuance of the marriage license. Their church (the Catholic Church) was willing to marry them, and the state’s anti-miscegenation law infringed on their right to participate in the religious ceremony.

In a previous case in 1942, the California Court of Appeals, 4th District, had ruled that a woman of mixed race herself could, effectively, not marry anyone (because of her white heritage she could not marry any of the other listed races; because of her non-white heritage she could not marry any caucasians); this came up post-fact after her (white) husband’s death as an invalidation of her marriage and hence loss of inheritance (Estate of Monks, 1942). The US Supreme Court had declined to take up the case. The deck seemed stacked against Perez.

However, in a landmark ruling, the California Supreme Court ruled that marriage is a fundamental right and that laws restricting that right based on race alone violated the Equal Protection clause.

The ruling was not well received. As late as 1958, Gallup polls showed that 96% of white Americans disapproved of interracial marriage (Ref: Wiki: Antimiscegenation). While Perez and Davis’ local Church was willing to marry them, the Roman Catholic Church in general was still on record against mixed-race marriages, as were most other major religions.

Still, it started a wave of anti-miscegenation laws being overturned across the US, which wave continued at the state level throughout the 1950s and much of the 1960s.

Kansas, 1954

In Topeka, Kansas, in 1951, thirteen parents, on behalf of their twenty children, brought suit against the Topeka Board of Education calling for the Board to reverse its policy of racial segregation. This policy was built on the foundation of the principle from Plessy v. Ferguson more than half a century earlier: separate, but equal, facilities provided by the state did not violate the Equal Protection clause of the US Constitution.

Linda Brown, a third grader, needed to walk six blocks to her school bus stop, at which point she could ride to her all-black school another mile away. An all-white school, Sumner Elementary, was just seven blocks from her house. Higher-grade school were not segregated (in fact, the Topeka High School had been integrated since its inception in 1871); Kansas law permitted segregation only below the high school level.

Linda’s father, Oliver Brown, with an aim to force the Board’s hand, enrolled his daughter in their neighborhood elementary school instead of the more distant all-black school. Linda was refused enrollment, and the case (including the other nineteen children so refused) was brought in 1951.

Ten previous cases had been brought against the 1879 Kansas school segregation law, three in Topeka alone. They had all failed.

There was no reason to believe that the education of Linda Brown, other than the minor discomfort of having to be bussed a mile to a different school, was in any way inferior to that given her white neighbors. For this reason, the District Court ruled against Brown et al, citing Plessy v. Ferguson.

In 1954, the US Supreme Court ruled on the case of Brown v. Board of Education, and four other similar cases (overall, including around 200 plaintiffs versus their local authorities). Earl Warren declared that “Separate educational facilities are inherently unequal” in the majority opinion of the case, basing his declaration not on a measurable inequality, but rather a psychological effect of separation.

Warren cited McLaurin v. Oklahoma State Regents, a case which had ruled against the black plaintiffs, which had nonetheless deduced “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.” (Ref: Brown v BoE and Wiki: Brown v. BoE)

In other words, the very act of providing a separate facility for one group over another guarantees inequality, because the existence of that separate facility will be interpreted as a judgement on the separated.

The last surviving plaintif in Brown v. Bourd of Education, Zelma Henderson, died on May 20, 2008. Her son Donald, who along with his sister Vicki gained entrance to desegregated Topeka schools in 1955, continues to live in Topeka.

Virginia, 1967

By 1967, many states had repealed their traditional anti-miscegenation laws. However, Virginia had not. The 1924 “Racial Integrity Act” stood in full effect in banning interracial marriages.

Mildred Delores Jeter and Richard Perry Loving traveled to the District of Columbia to wed, and returned home to Virginia a married couple. The local police invaded their home and arrested them in their bedroom. At their trial, the judge invoked God’s plan:

“Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.”

The sentence of one year was suspended on the condition that they leave Virginia for at least 25 years.

The Lovings moved to Washington, DC, and filed a motion to vacate the judgement. Initial rulings in the Virginia Supreme Court declared that the Lovings had not been discriminated against, because both of them – the black woman and the white man – had received the same sentence, echoing Pace v Alabama, 1883.

The appeal to the US Supreme Court was accepted and heard. The Earl Warren Court ruled that the Lovings had indeed been treated unequally by the State of Virginia. He wrote:

“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

Mildred Loving outlived her husband by several decades before passing on May 2, 2008. On the 40th anniversary of her landmark case, she spoke in favor of not only racial equality but also sexual orientation equality of marriage: “I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.”

On Which Side Will You Stand?

Earlier this year, the California Supreme Court ruled that the California “Defense of Marriage” act sought to create a “separate but equal” facility for marriage (“Marriage” for heterosexuals, “Domestic Partnership” for gays).

No matter the practical differences of the two marriage licenses (due to the federal Defense of Marriage act, “Domestic Partnership” or “Marriage” between homosexuals would not be recognized outside of California or in any Federal jurisdictions such as income taxes or Social Security benefits). The mere presence of a separate institution for homosexual couples de facto declares them as inferior to the “normal” heterosexual couples. The CA Supreme Court ruled this as unconstitutional because the recognition of civil marriage is a “fundamental right” (declared so in Perez v. Sharp, 1948) and thus separate facilities violates the Equal Protection clause of the 14 Amendment (as established in Brown v. BoE, 1954).

In November, Californians, largely assaulted by false arguments (for instance that allowing gay couples to marry would cause homosexuality to be taught in schools and force churches to officiate in gay marriages, both of which are provably false), approved by scant majority (52%, pending final count) amending the California Constitution to forbid gay marriages in the state.

In 1948, had such an initiative process existed, I have little doubt Californians (who supported anti-miscegenation laws by more than 19 to 1) would have passed such an amendment easily. Yet, they did not. Because they did not, because they accepted progress, a vile and arguably evil practice began to come to an end. By the late 1960s major religions, including the Roman Catholic Church, had reversed their positions on miscegenation and were lobbying states to strike such laws from the books. It took eighteen and a half years before a US Supreme Court ruling would strike down anti-miscegenation laws across the country. Still, it started with the simple recognition of the fundamental right to marry which must be made available to all couples.

Now, half a century later, there are scant few who would claim in public that it is wrong or evil or destructive for a black man to marry a white woman, or for a Korean woman to marry a white man. They are, rightfully, ridiculed when they pop out their cretinous heads.

Fifty years from now, will this debate over gay marriage have been silenced by common accord? In a hundred? Perhaps it will take nothing more than a few decades, perhaps as long as another century. I am confident, however, that it will come to overwhelming consensus, as these issues tend to.

In a hundred years, your great-great grandchildren will read the journal in which you write tonight. On which side of history will they judge you as having stood?

Will they need to make excuses for you, saying “that was just what people were like back then”? Will they, instead, look at your voice as one of courage, standing for the rights of those whom you scarcely know?


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One Response to “On Which Side of History Do You Stand?”

  1. Is Sexual Orientation a “Choice”? « Tom’s Issues Says:

    […] Tom’s Issues Politics and Issue Discussions « On Which Side of History Do You Stand? […]

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