Prop 8 Trial Coverage Day 2: Old Marriage Laws - Silly Rabbit, Marriage Is For White People

Second blog entry on Harvard professor Nancy Cott's testimony on the history of marriage discrimination from the second day of the Prop 8 Trial. By Davina Kotulski of DavinaKotulski.com

OLD MARRIAGE LAWS SILLY RABBIT MARRIAGE IS FOR WHITE PEOPLE

In the continuation of Professor Nancy Cott’s testimony she spoke of how marriage laws discriminated against unpopular minorities, which if you look back at American history that means everyone but straight white males.

Slaves were denied the right to marry. After emancipation, blacks were denied the right to marry whites. Chinese immigrant men were denied the right to marry white women and as the influx of Asians from other countries occurred, new categories of marriage denial based on race and ethnicity were created.

WHITE AMERICAN WOMAN SEEKING ASIAN MAN-THERE GOES YOUR CITIZENSHIP

Marriage, back then, like now, was the way benefits were bestowed upon people. So, if you wanted benefits you had to obey the laws. For example, in 1907, the federal government passed a law taking away the American citizenship of white women who chose to marry Asian men as a deterrent to interracial marriage.

Professor Cott made the point that a German immigrant could marry an American woman and he could get American citizenship, but the Chinese were regarded as “aliens ineligible for citizenship.” She said, “An American woman would not only lose her citizenship but could only regain it if he died or divorced and if she applied for naturalization.”

This outrageous ban was not lifted until WW II when American and China became allies.

As we know today, the federal government still handles immigration in marriage - it is one of those 1,138 federal rights denied same-sex couples. Immigrant heterosexual spouses are eligible for citizenship, but gay spouses/partners are not.

PARALLELS FROM RACIAL DISCRIMINATION IN MARRIAGE AND GENDER IN MARRIAGE WITH REGARD TO SAME-SEX COUPLES

Cott says, “The most direct parallel is that the race laws restricted individuals from having choices over who they married in a way that designated some groups as less worthy and some marriages as less worthy, and it is part of the same effort” to deny same-sex couples. “Couples who made these choices would have less honor, status and fewer benefits than others.”

THE SUPREME COURT RULES THAT MARRIAGE IS A FUNDAMENTAL RIGHT

In 1913, Cott said that the US Supreme Court ruled that marriage is a fundamental right. Yet this important ruling was followed by numerous states passing extremely restrictive anti-miscegenation laws preventing the marriage of whites and people of color. The Virginia ban is one of the most notable - interracial couples were considered criminals.

Cott says that “the question of the constitutionality of these laws could have come before the United States Supreme Court before 1967…but because it was such a hot button issue the Court approached this very cautiously.”

Specifically Professor Cott made reference to a case in 1955 that they could have taken, but instead they waited until 1967 to challenge the Virginia law that was passed in 1924.

You can read Professor Cott’s cross-examination in an earlier blog. I’m sorry this is a bit out of order, but things are moving fast. Also I apologize for any typos.