When working in a California factory, Angela Pérez and Sylvester Davis fell in love. Like most couples who were in love at the time, they filed for a marriage license. However, when filing for a license the couple discovered a catch that would prevent them from marrying: Davis, a black man, and Pérez, a Mexican woman, were not allowed to marry each other. Initially, the couple had assumed that their respective races would not cause an issue because the California anti-miscegenation statute specifically prevented whites from marrying those of other races. But Pérez was Mexican and California considered Mexicans to be legally white at the time. Pérez and Sylvester challenged this law and in 1948, the California Supreme Court overturned California’s anti-miscegenation statutes, allowing Andrea Pérez and Sylvester Davis to marry (Lenhardt).
Since California achieved statehood in 1850 and until Perez v. Sharp in 1948, California had always had a statute on the books that banned interracial marriage. The initial statute of 1850 specifically banned interracial marriage between whites and blacks, declaring that “all marriages of whites with negroes or mulattoes are declared to be null and void” (Cal. Compiled Laws of California Chapter XXXV Section 3 (Cal. Stat. 1850)). The statute was later amended to ban the marriage of whites with people from other racial minority groups, most likely because of an increasingly diverse population coupled with an “inclination to segregate” as demonstrated by the existence of an antimiscegenation statue (Karthikeyan, Chin). In 1905, the language of the statute was changed so that “no license must be issued authorizing the marriage of a white person with a negro, mulatto, or mongolian,” preventing the marriage of a white person with a person of Asian descent (Cal. Compiled Laws of California Chapter CLXXXVI Section 69 (Cal. Stat. 1905)); in 1933, the statute was amended once again to include “members of the Malay race” as part of those ineligible to marry whites (Cal. Compiled Laws of California Chapter 104 Section 60 (Cal. Stat. 1933)). With each amendment, the definition of who was worthy enough to marry a white person became narrower and narrower. The statute was amended again in 1935, changing the language from “no license must be issued” to “no license may be issued” (Statutes of California Chapter 61 Section 69 (Cal. Stat. 1935)). This change asserted that under no circumstance were interracial marriages to be licensed.
There was a fear amongst white men at the time that “what Negro civil rights activists really wanted was not mere ‘equality’ but sex with white women”. White men, feeling entitled to sexual and marital relations with white women, feared that intimacy between black men and white women would prevent their own access to white women. Therefore, they did much in their power to prevent the union of interracial couples. That being said, some black women at the time were also opposed to interracial marriage because it “robs black women of black men who should be their ‘natural’ partners, thus weakening the position of black women in the marriage market.” The notion was that black women would only be able to marry black men. Therefore, when black men married white women, there would be no men left for black women to marry (Kennedy).
Historically, there was little to no legal opposition of this law at the time. In fact, the 1935 amendment to this statute, authored by assemblyman Breed, passed with unanimous consent in the legislative assembly (Journal of the Proceedings of the Senate (1935, April 3)). Of course, California’s legislation was controlled by men considered legally white and, while there were no doubt people who opposed this statute, those who would potentially do so – racial minorities and white women – had neither the voice nor the power to do so at the time. However, outside of the law, there have been examples of individuals who resisted antimiscegenation statutes and norms. Nell Butler, an Irish indentured servant, accepted enslavement in exchange for marrying the slave she loved. Robert Wright, whose father was a plantation owner and mother was a slave, initially inherited his father’s property and was able to marry a white woman (Kennedy).
Regardless, any interracial couple who attempted to marry, and any clerk who attempted to license them in California faced legal consequences. All those involved in the marriage – including the clerk – faced a misdemeanor charge if found guilty. A fine of up to ten thousand dollars or a prison sentence of up to ten years or some combination of both could be invoked to punish those who dared to defy this law (Lenhardt). Furthermore, because of the federal 1907 Expatriation Act which “divested an American woman of her citizenship” so long as she was married to a foreigner and because of the federal 1924 National Origins Act which made all Asians perpetual foreigners, a white woman who wanted to marry an Asian man faced loss of American citizenship, regardless of which state she lived in. Anyone who dared to challenge the anti-miscegenation statutes of the time was criminalized and faced harsh legal consequences (Kwon).
With the passage of the thirteenth, fourteenth, and fifteenth amendments during the Reconstruction era, blacks were granted the same political and legal rights that were previously only bestowed upon to whites. These amendments affirmed the citizenship and voting rights of blacks as well as their autonomy from white masters. Jarred by this sudden shift of power, whites grappled with their loss of unquestioned legal supremacy over people of color. To deal with this loss, “officials were quick to distinguish between ‘political’ equality…and ‘social’ equality” (Moran). That is to say, even though these amendments promoted political equality regardless of race, whites still resided in a higher social sphere. This lack of social equality permitted antimiscegenation statutes to flourish. In an effort to preserve a white supremacy that was being dismantled under Reconstruction, antimiscegenation statutes were put into action.
In California, the antimiscegenation law was enforced by the state refusing to acknowledge the marriage of interracial couples, resulting in severe legal consequences. For example, when the Walter and Emma Fong – a Chinese man and a white woman respectively – wished to marry in 1897, they “were forced to travel to Colorado…in order to sanction their union” (Yu). Walter and Emma Fong had no choice but to leave their home state for a marriage that California refused to permit. Furthermore, California’s refusal to recognize interracial marriages resulted in more than one inheritance dispute in the event of one spouse’s death:
“Until the mid-twentieth century, only a few of these cases were brought either by interracial couples seeking the right to marry or by law enforcement officials trying to prevent them from doing so. Most of the cases were ex post facto attempts to invalidate interracial marriages that had already lasted for a long time. Such cases were brought by relatives or by the state after the death of one spouse, most often a white man. The lawsuits were designed with a specific purpose in mind: to take property or inheritances away from the surviving spouse, most often a woman of color” (Pascoe).
Despite these interracial marriages being well established as they have “lasted for a long time,” California refused to acknowledge them, causing many nonwhite wives to lose their rightful inheritance to a white male relative. This dynamic further emphasizes the social inequality present between white people and people of color. Whether a couple had to leave their home state for a marriage license or a woman of color lost her inheritance, California’s rejection of interracial marriage had harsh repercussions.
Different court cases at both the federal and the state level permitted the development of California’s antimiscegenation statute and its eventual repeal. In 1882, the U.S. Supreme Court determined in Pace v. Alabama that “institutionalizing a ‘separate but equal’ principle in sexual and marital regulation” was constitutional. The Court argued that white people were as equally banned from marrying people of color as people of color were banned from marrying white people; therefore, no race was discriminated against since interracial marriage was equally banned for everyone. This ruling led to a sharp increase of antimiscegenation laws among the states (Moran). Furthermore, Maynard v. Hill in 1888 “left matters of marriage in the jurisdiction of the states,” allowing states to regulate interracial marriage (Wallenstein). Therefore, when Asian immigration increased in many Western states, California was able to add “bans on white intermarriage with ‘Mongolians.’” That is, with an influx of Asian immigrants, California prohibited marriage between white and Asian people. This statute persisted for another sixty years until in 1948, the California Supreme Court case Pérez v. Sharp permanently repealed this law. According to Justice Traynor, “the right to marry is the right of individuals, not of racial groups.” With this declaration, Justice Traynor permitted the marriage of Angela Pérez, a legally white woman, and Sylvester Davis, a black man, in California and revoked California’s ban on miscegenation (Moran).
Before California’s antimiscegenation statute was repealed, it was often selectively enforced in the case in which a white woman was attempting to marry a man of color. For instance, “Asian women married to American men fared better than Asian men married to American women.” Couples involving a white woman and a man of color generally struggled more than their counterparts (Kwon). This bias was mainly a result of “fears about the long-term survival of the ‘white race’.” White supremacists feared that interracial marriage and sexual relations would lead to the disappearance of the white race; they were particularly “warned to fear the alleged reproductive advantage of ‘Mongolians’ who were believed to be more fertile” (Yu). As a result, the relations between white women and Asian men were heavily policed. Furthermore, the relationships between white women and men of color were more prohibited because of white men’s fear of men of color stealing white women away:
“In conjunction with laws that defined the children of slave women as slaves and laws that denied legal legitimacy to slave marriages, miscegenation statutes contributed to a context in which white women’s sexuality was firmly controlled even as white men were allowed a great deal of informal sexual access to black women” (Pascoe).
White men wanted sexual access to women regardless of race, while simultaneously prohibiting white women from the same privileges. This hypocrisy stemmed from a desire of white men to preserve the white race while simultaneously having sexual relations across racial lines. As a result, relationships between white women and men of color were severely prohibited while relationships between white men and women of color were permitted but illegitimate. For instance, Emma Fong Kuno faced legal repercussions for her interracial marriages (Yu). However, white men in the South were socially and legally permitted to “set up special residences for black and mulatto mistresses” (Moran). This bias in the enforcement of the statute upon relationships between white women and men of color is clearly a result of a racist patriarchy intent upon controlling white women’s sexuality and preserving the white race.
California’s antimiscegenation law was, in fact, successful at maintaining the racial segregation of marriage and sexual relations. For instance, when the law was first enacted in 1850, only .05% of marriages were interracial marriages; however by 1950, two years after California’s statute was struck down, .142% of marriages were interracial marriages. There was almost a threefold increase in interracial marriages between this statute’s enactment and repeal (Gullickson). By prohibiting interracial marriage, California enforced the illegitimacy of these relationships. Therefore, even when interracial relationships did develop, not only were they looked down upon, as demonstrated by “widespread condemnation of [Emma Fong Kuno’s] spousal choices,” (Yu) but they also went unrecognized by the state, denying many spouses legal rights, such as property inheritance, potentially destabilizing one spouse financially when the other died (Pascoe).
From California’s beginning in 1850 until the Perez v. Sharp case in 1948, California had always had a law restricting interracial marriage. Throughout the years, amendments were passed narrowing the definition of who was permitted to marry a white person. Those who potentially defied this law faced harsh legal repercussions from fines to imprisonment to loss of citizenship. Fear of amalgamation by white men coupled with fear of a lack of marriage partners by some black women led these two groups to support these restrictions. This law was enforced through California’s refusal to recognize interracial marriages, especially those between a white woman and a man of color. Regardless, this statute did its job by maintaining segregation and social inequality. But in 1948, Pérez and Davis took advantage of the “relative lightness with which the antimiscegenation regime ruled in California” (Moran). They challenged this law and overturned it, permitting interracial couples to marry in California and beginning a wave of repeals of antimiscegenation statutes throughout the West (Wallenstein). Once the stage was set by Pérez v. Sharp, one by one states followed until by 1958 – ten years after this decision – only twenty four states still banned miscegenation. This pattern demonstrated to the Supreme Court that the public supported a repeal of antimiscegenation statutes, setting the stage for Virginia v. Loving which ultimately prohibited antimiscegenation statutes nationwide (Wallenstein). The decision of Pérez v. Sharp paved the way for civil rights issues regarding marriage because it “makes clear that the fundamental right to marry involves the freedom to marry not just anyone, but the ‘person of [one’s] choice.’” Advocates for same-sex marriage utilize this logic, demonstrating that gay couples also have the fundamental right to marry a person of his or her choosing, regardless of sex (Lenhardt). No doubt, the repeal of California’s antimiscegenation statute paved the way for civil rights movements regarding love and marriage.
Cal. Compiled Laws of California Chapter XXXV Section 3 (Cal. Stat. 1850)
Cal. Compiled Laws of California Chapter CLXXXVI Section 69 (Cal. Stat. 1905)
Cal. Compiled Laws of California Chapter 104 Section 60 (Cal. Stat. 1933)
California. Legislature. Senate. (1935, April 3). Journal of the Proceedings of the Senate. Senate Journal. Retrieved September 21, 2016.
Gullickson, Aaron. 2006. “Black-White Interracial Marriage Trends, 1850-2000.” Columbia University.
Karthikeyan, H.; Chin, G. (2002). Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to Asian Americans, 1910-1950. Asian Law Journal 9, 1-40.
Kennedy, R. (2003). Interracial intimacies: Sex, marriage, identity, and adoption. New York: Pantheon.
Kwon, Eunhye. 2011. “Interracial Marriages among Asian Americans in the U.S. West, 1880-1954.” University of Florida.
Lenhardt, R. (2008). Beyond Analogy: Perez V. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage. California Law Review, 96(4), 839-900. Retrieved from http://www.jstor.org/stable/20441036
Moran, Rachel F. 2001. Interracial Intimacy: the Regulation of Race &Amp; Romance. Chicago: University of Chicago Press.
Pascoe, P. (1991). Race, Gender, and Intercultural Relations: The Case of Interracial Marriage. Frontiers: A Journal of Women Studies, 12(1), 5-18. doi:1. Retrieved from http://www.jstor.org/stable/3346572 doi:1
Statutes of California Chapter 61 Section 69 (Cal. Stat. 1935)
Wallenstein, Peter. 2002. Tell the Court I Love My Wife: Race, Marriage, and Law – An American History. New York: Palgrave Macmillan.
Yu, Henry. “Mixing Bodies and Cultures: The Meaning of America’s Fascination with Sex between “Orientals” and “Whites.”