Today in 1883: SCOTUS upholds harsher criminal penalties for interracial cohabitation

January 29, 2016

Today in Legal History2015 was a landmark year for marriage rights, specifically because of the Supreme Court’s Obergefell v. Hodges.  As many commentators have noted, the speed at which the Supreme Court has reversed its position on the issue of same-sex marriage is, historically speaking, remarkable.  Just 29 years prior, the Supreme Court upheld state laws criminalizing homosexual activity in private, and just 14 years prior to that, the Court effectively upheld state same-sex marriage bans in 1972’s Baker v. Nelson.

While three to four decades may not seem like a particularly short period of time for the Court to change its views on the same-sex relationships, the Court needed twice that amount of time to reevaluate its stance on interracial ones.  Eighty-four years, to be exact: in 1967, the Supreme Court decided Loving v. Virginia, and on January 29, 1883 – 133 years ago today – the Court decided Pace v. Alabama, which upheld the constitutionality of harsher criminal punishments for interracial cohabitation.

The case began in 1881, when criminal charges were brought against Tony Pace, an African-American and Mary Ann Cox, a white woman, for living together “in a state of adultery or fornication.”  Had Pace been white, he would only be facing a maximum penalty of six months in jail.  He, instead, was sentenced to two years in jail – the minimum sentence – because his cohabitation was interracial in nature.

Pace appealed to the Alabama Supreme Court, arguing that the law that treated interracial couples differently than those of the same race was unconstitutional as violating the Fourteenth Amendment’s Equal Protection Clause.

The Alabama high court disagreed unanimously, finding that the law contained no discrimination “against or in favor of either race,” since the “punishment of each offending party, white and black, is precisely the same.”

The difference in criminal punishments, then, is due to the fact that, according to the Alabama court, cohabitation between two parties of the “opposite color” is a greater crime.  Why?  The court doesn’t mince words in giving its explanation:

[The relationship’s] result may be the amalgamation of the two races, producing a mongrel population and a degraded civilization, the prevention of which is dictated by a sound public policy affecting the highest interests of society and government.

The case was then appealed to the U.S. Supreme Court, who unanimously confirmed the Alabama Supreme Court’s opinion.  The opinion was short at only three paragraphs, with only the last dedicated to its reasoning for affirming the lower court, which largely parroted the Alabama court’s (save for the endorsement of the racist public policy behind the law).  That is, the discrimination is directed at the acts themselves, not at the individuals involved in the act.  In the Court’s own words, “[t]he punishment of each offending person, whether white or black, is the same.”

Of course, this ruling was made before there was any recognition of any legal privacy rights, so the imposition of harsher criminal penalties for cohabitating interracial couples may not have struck the Court as being as blatantly discriminatory as it would nowadays.  But there should be little question that the underlying motive for the law, as expounded by the Alabama high court, was driven by intense animus for blacks, and thus, was patently discriminatory and in violation of the Equal Protection Clause.

Eventually, albeit eight decades later, the Court was able to recognize discrimination in more than one shade and flavor, but it took a number of struggles in and out of the courtroom to bring the Court – and, indeed, the nation as a whole – to this more comprehensive understanding.

Perhaps it is because of this evolution that progress was made so quickly (relatively) on the issue of same-sex relationships.  After all, the kind of animus underlying a law described and supported by the Alabama Supreme Court was very similar to the kind of animus against LGBT individuals that was struck down in 1996’s landmark Romer v. Evans – the case that began a series of unbroken victories at the Supreme Court for LGBT rights that culminated in last year’s Obergefell decision.

There can be no doubt, then, that the legal trails blazed by those struggling against racism helped to facilitate or at least accelerate the trailblazing against LGBT discrimination.