Anti-Miscegenation Laws and the Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of 1875Posted in Articles, History, Law, Media Archive, United States on 2016-06-27 00:03Z by Steven
The University of Chicago Law School Roundtable: A Journal of Interdisciplinary Legal Studies
Volume 2: Issue 1, Article 12 (January 1995)
Steven A. Bank, Paul Hastings Professor of Business Law
University of California, Los Angeles
The Civil Rights Act of 1875, which was introduced by two Republicans from Massachusetts, Charles Sumner in the Senate and Benjamin Butler in the House, sought to overturn many of the bars to interaction between the races after the end of slavery. In its final form, the Act provided that “all persons … shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” No provision of the Act, however, explicitly addressed state anti-miscegenation statutes, or laws that prohibit “intermarriage and all forms of illicit intercourse between the races.” Proponents of the Act confined their arguments largely to the issue of desegregating public places such as railroad cars, steamships, inns, cemeteries, churches, and public schools. Continued prejudice, distaste for miscegenation among both races, and a declining post-Civil War rate of miscegenation, combined to persuade supporters of the bill not to address these laws in the push to desegregate public institutions.
This decision, albeit a wise one politically, left Republicans open to attack. Republicans argued that symmetrical equality, where blacks are prohibited from doing what whites can do, but whites are equally prohibited from doing what blacks can do, was insufficient to satisfy the requirements of the Fourteenth Amendment. They contended that under the Equal Protection Clause, blacks should have the same right as whites to enter any public place. This argument, however, inescapably included anti-miscegenation statutes within the confines of its logic. While such statutes provided symmetrical equality, since they prohibited both blacks and whites from participation in interracial relationships, they denied blacks the same right to marry whites as whites enjoyed. If segregation of public places was unconstitutional, anti-miscegenation statutes must be as well. Opponents of Reconstruction seized upon this logical extension of the Republican principle of equality to suggest that the Civil Rights Act of 1875 would result in increased miscegenation. The charge became intertwined with the claim that Republicans sought to legislate “social” equality between the races. Thus, Republican treatment of miscegenation was watched closely. Accepting symmetrical equality in anti-miscegenation laws would weaken their argument against segregation. Conversely, arguing that anti-miscegenation laws were unconstitutional might arouse opposition to attempts to protect the civil rights of the freedmen…
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