Ok, I admit to using a lurid title to draw you in, but it worked, didn’t it?
What does the law have to do with love? Your gut reaction is probably “nothing!” But love has often been the subject of legislation, and that brings up a lot of questions about what the law is, what it should be, and how the law protects society.
In recent years, the subject of same-sex marriage has become a divisive hot button issue, with people passionately (intentional irony) arguing on both sides. Those arguing in favor see it as a basic human rights and equality issue. Those arguing against see it as a threat to the moral fabric of society and a dangerous redefinition of a basic building block of society. It’s important to keep in mind that both sides believe their side represents what is right for society and wish the law to reflect what America should be.
I’m not here to argue for or against same-sex marriage, but as the arguments continue, I think it is instructive to look back at other times that law and love have collided.
Those who argue against same-sex marriage have pushed legislation that would define marriage as being between a man and a woman, because that’s the way it’s always been. But for most of our history, marriage has been defined as being between certain types of men and certain types of women. Miscegenation is a word that means “mixing of kinds” or “mixing of types, but you will probably never see it without the negative prefix, as in “anti-miscegenation laws.” These were laws that prevented people of different races from marrying each other. It’s well known (or should be) that there were laws in the South that prevented marriage between whites and African-Americans. What is less well recognized is that these laws were common throughout the Western states as well, and that in the West, Asians were also included in these laws.
California, with the large influx of Chinese laborers in the late 1800’s, led the way. Since many Western states looked to California as a model for their own laws, most Western states also adopted some kind of anti-miscegenation law. By 1920, California law stated that “marriage between Negroes, mulattos, Mongolians, Japanese, and members of the white race is prohibited.”
Montana passed its first anti-miscegenation law in 1909, which prohibited marriage between whites and “Negroes, Chinese.” The law was amended in 1911 to include marriage between whites and “Negroes, Chinese, Japanese.” Any persons participating in such an attempted marriage, including the officiant and any assisting the ceremony, would be punished with a $500 fine and six months in jail.
In 1921, provisions were also added that nullified interracial marriages if the parties went to another jurisdiction where such a marriage was legal. Such marriages legally performed in other states were not recognized in Montana and the couple was not considered to be married while in Montana.
While the laws in Western states originally targeted African-Americans and Chinese, and later Japanese as well, the tendency was for the laws to be interpreted as inclusive of all Asians.
In the 1920’s and 30’s, a large number of Filipino immigrants arrived in California to work as farm laborers around Monterey. A case in Los Angeles in 1925 challenged the California law as not specifically prohibiting marriage between whites and Filipinos. The judge ruled:
I am quite satisfied in my own mind…that the Filipino is a Malay and that the Malay is a Mongolian, just as much as the white American is of the Teutonic race, the Teutonic family, or of the Nordic family, carrying it back to the Aryan family. Hence, it is my view that under the code of California as it now exists, intermarriage between a Filipino and a Caucasian would be void.
Again, it is important to remember that those who crafted and upheld the anti-miscegenation laws and those who fought against them were doing so because they sincerely believed they were doing what was necessary to protect society and reflect what America should be.
The Montana anti-miscegenation laws were repealed in 1953.
My wife and I love each other very much, but she is from the Philippines, so it’s uncomfortable to think that not that long ago, here in the beautiful state we live in, we would be considered criminals because we love each other and want to live as a married couple. It’s uncomfortable to think that our relationship would be considered inherently wrong and somehow threatening to society.
However, despite my obvious personal interest in the history of anti-miscegenation laws and how that necessarily affects my views on the same-sex marriage controversy, what arises in my mind out of the whole thing are the really large questions of how does the law protect society, how does the law serve justice, and how does (or how should) the law reflect the society it arises from? These are questions that can never ultimately be answered as the relationship between law and society is a state of constant process. I can sit back and contemplate all of this philosophically, but as law students preparing to enter the legal profession, these are questions you will deal with every day. You will be part of the process of law.