Miscegenation Law and the Politics of Mixed-Race Illegitimate Children in the Turn-of-the-Century United States

In April of 1913, representatives of the Illinois legislature were in session in Springfield to debate laws designed to curtail the rights of African Americans. At the same time, the Illinois Protective League, a group of about 100 Illinois African American men and women, was also meeting to discuss how to frame their opposition to these Jim Crow laws. Members of the League voiced their objections to a bill that would ban marriage between black and white people in the state of Illinois. While the spokesperson for the group explained that African Americans had no special desire to intermarry with white Americans, he argued that the bill stigmatized and marked African Americans as second-class citizens and that it failed to protect seduced African American women. This lack of protection, then, had the overall effect of producing illegitimate African American children, which the league called "the strongest and most far-reaching reason why the bill should not become law." As J. Gray Lucas explained the problem, the "law does not permit [the child] to have a legal father by the marriage of its mother and father" and the child is "thereby prevented from inheriting the estate of … its natural father." Further, the bill would permanently mark the mixed-race child with the stigma of illegitimacy.¹

The Illinois Protective League and other African American activists and journalists around the turn of the century used the trope of the illegitimate child and his or her legal disabilities as a way to combat anti-miscegenation bills in state houses and in the District of Columbia. The historian Peggy Pascoe has argued that those opposed to interracial marriage bans, the NAACP chief among them, used a three-pronged strategy to defeat these bills in the North. They advocated for freedom of marital choice as an American right; they argued that the bans reinforced beliefs in black racial inferiority; and they explained that interracial marriage bans sexualized miscegenation to the detriment of African American women, who were exploited, and African American men, who could be lynched. While these tactics also appear alongside arguments pertaining to illegitimacy, those focused on children were actually an integral part of African American strategies to defeat interracial marriage bans, "the strongest and most far-reaching reason," in the words of Lucas. Because social scientists and reformers believed that rates of illegitimacy actually were on the rise—and not just among African Americans—these activists cannily tapped into Progressive-Era concerns about the rights of the child, even the mixed-race child, to defeat bans on interracial marriage in many Northern states. These activists located the mixed-race illegitimate child in a legal liminal space and called upon the sympathies of lawmakers and the public for the mixed-race innocent who was being punished by virtue of his or her parents' inability to legally formalize their union. Of course it remains unclear how many such parents would have actually desired marriage in the first place. But using the figure of the innocent and harmed child was a strategy for activists to oppose what they saw as the inherent racism of miscegenation laws. Rather than focusing on the needs of actual living children, the symbol of the legally liminal child, punished by lawmakers' unwillingness to guarantee its freedom and protection, has long been a forceful rhetorical tool to advance the agendas of activists in a variety of social movements. Those working to overturn interracial marriage bans were no different.²

African Americans were, of course, familiar with a long history of mixed-race illegitimacy under slavery and among free people, constructed via Anglo systems of law that criminalized, punished, or enslaved the products of mixed-race unions. Hundreds of thousands of mixed-race children were conceived out of rape and coercion to enslaved women, and their status as illegitimate was scarcely recognized because enslaved people, as property, were unable to enter into the legal contract of marriage. Historians have also documented the ways that by virtue of indenture contracts and statutes banning fornication, mixed-race children...