Doing the right thing: a history of California's marriage laws

I was all set to write a post about the Cable Act (will return to this in a moment) when I heard the great news last night that the California Supreme Court overruled a previous ban prohibiting gay marriage.


[This is Phyllis Lyon and Del Martin, who were joined as "spouses for life" at SF City Hall on February 12, 2004. Unfortunately, their union was nullified in August 2004 by the California Supreme Court. But thanks to yesterday's ruling, their marriage will once again be validated by the State of California.]

When Gavin Newsom was interviewed on CNN and asked why the Supreme Court could do this when the majority of voters in California had approved a state law in 2000 codifying marriage as being between a man and a woman, Newsom invoked California's anti-miscegenation laws of the 19th and early 20th C. and quite astutely noted that if Californians were polled in 1948 about whether they approved of marriage between people of two different races, a majority would have voted in favor of prohibiting miscegenation/inter-racial marriage. Yet clearly history has shown that the will of the majority does not always make things right, and that legally the RIGHT thing to do was to abolish such laws--to allow people to marry whoever they want.

And this is SO TRUE.

Once upon a time, there were anti-miscegenations laws that prohibited marriage between people of different races. Actually, it was more specific than that. Most anti-miscegenation laws didn't really care if African Americans married Latinos or if American Indians married Asian Americans (or, if we are going to keep to the language of the 19th and early 20th C., they didn't care if blacks married Mexicans or if Navajos married Chinese). Instead, the majority of laws were specifically designed to ensure white purity and to punish any transgressions of white Americans crossing the color line.

One of the most shocking results of this adherence to the color line was in the Cable Act (1922-1936):

The Cable Act specifies that any U.S.-born woman marrying a "person ineligible for citizenship" would automatically lose her U.S. citizenship. In a marriage terminated by divorce or death, a Caucasian woman could regain her citizenship, but a Nisei woman could not, because she was "of a race ineligible for citizenship."

The important point to note in this quote is that the ONLY race and hence only aliens "ineligible for citizenship" were Asian immigrants--which in this time period meant predominantly Chinese, Japanese, Korean, and Indian people. Thus, our country's earliest anti-miscegenation laws specifically targeted Asians--using not just the Cable Act but anti-miscegenation laws to prevent Asians and whites from marrying.

Thankfully, as Mayor Newsom pointed out, the Supreme Court of California was wise enough in 1948 to realize how unlawful anti-miscegenation laws are:

In Perez vs. Sharp, the California Supreme Court rules against anti-miscegenation laws, stating that they were based on racial distinctions that were "by their very nature, odious to a free people."

[For more on a timeline of events that influenced inter-racial marriages, click on this link, which is the same site that I found the quotations above.]

And if it hadn't been for the repeal of The Cable Act in 1936 and California's anti-miscegenation laws in 1948 (and the repeal of the nation's anti-miscegenation laws in 1967), we never would have a family like Jon and Kate plus eight (you have to imagine that in the mid-1930s this image would have scared the hell out of some folks. Actually, I'm sure this image scares the hell out of some folks now).

Most rational folk take for granted inter-racial marriages. Even people who wouldn't necessarily want their son/daughter to marry across the racial divide would be hesitant to turn back Loving vs. Virginia, understanding marriage to be a private affair between two consenting adults.

And I hope that one day in the not so distant future, this is the attitude our society will have about same-sex marriage. That the whole idea that once-upon-a-time people actually tried to pass laws restricting marriage on the basis of sexual orientation or gender was LUDICROUS and THANK GOODNESS we no longer live in the late 20th C. when such draconian and antiquated ideas about love and marriage were in place.