Romance and Rights: The Politics of Interracial Intimacy, 1945-1954

Chapter 1: Legislating Love: Antimiscegenation Law and the Regulation of Intimacy

3 Chapter 1 Legislating Love Antimiscegenation Law and the Regulation of Intimacy WHEN CRITICS AND AUDIENCES celebrated Paul Robeson’s performance in the 1942 production of Othello as a civil rights achievement, they rearticulated the meaning of interracial intimacy in American society. Robeson’s casting in the role of Othello, in addition to the play’s interracial romantic plot, moved the matter of interracial intimacy into public view and potentially into the realm of civil rights. In order to understand the significance of this performance and its location within the public sphere, we must first examine how the politics of interracial intimacy developed in the United States. From 1661 to 1967, U.S. citizens in certain states were subject to laws regulating their intimacy and marriage choices on the basis of race. Antimiscegenation legislation was among the first type of laws passed in the newly formed colonies.1 Not until the Supreme Court found Virginia’s antimiscegenation law unconstitutional in its 1967 Loving v. Virginia decision were interracial heterosexual couples free to marry in every state. Although antimiscegenation laws have been a staple of U.S. history, the uses, intentions , and outcomes of such laws have varied based on local circumstances, historical contexts, and political situations.At times, antimiscegenation laws were deployed to regulate social relations between black slaves and white servants. At other times, the same antimiscegenation laws were used to determine the status of grandchildren descended from interracial grandparents . Hence one must analyze the legislation of interracial intimacy cautiously , making sure not to reify only one underlying cause of its origins. What is most important for our purposes are the ways that, historically, the regulation of interracial sexuality has signified competing notions of 4 Antimiscegenation Law and the Regulation of Intimacy publicness. First, the creation of antimiscegenation laws in the seventeenth century signified the earliest attempt to limit the privileges of privacy to certain forms of sexuality. Yet having defined interracial sexuality as a publicsphere concern, lawmakers and judges have not agreed about which public sphere ought to have the sovereign right to regulate interracial intimacy. As I will discuss below, prior to the Civil War interracial sexuality was treated as a local, regional relationship that could, in a sense, be protected as a private relationship. Local courts, and not the state, would regulate intimate relations. As a result, although there existed state laws regulating interracial intimacy, such laws were sporadically enforced and only entered local public-sphere politics when interracial sexuality affected property relations. Even though interracial intimacy among slaves and mulattoes were especially vexing to the antebellum South, the legal regulation of interracial intimacy remained a local concern. After the Civil War, however, interracial sexuality was no longer treated as a local matter that could be tolerated and largely ignored by political entities . Former slave-owners made the politics of interracial intimacy central to their claim that the North had victimized the South. Such a claim moved the regulation of interracial intimacy into a larger public sphere, from local community to region. Interracial intimacy became part of national politics after the Civil War because of the ways that the South framed its conflict with the North in terms of its fear of racial amalgamation. Interracial intimacy was at the crux of national remembrance of the Civil War through the 1930s. Furthermore, increasing immigration and urbanization at the turn of the century led to new strategies of sexual regulation that further publicized intimate matters. During the 1940s, the regulation of interracial sexuality once again signified tensions over competing definitions of the public sphere, as southern states argued that federal civil rights legislation ought not influence their right to regulate marriage relations. The modern civil rights movement made the politics of interracial intimacy a national issue. Southern courts thus attempted to contain matters of sexuality and race as local relationships , rather than state or national ones. Such spatial arguments allowed the states to maintain a level of sovereignty at a time when the federal government was increasing its power over the nation. This chapter traces the history of antimiscegenation legislation in order to show how competing definitions of publicness shaped the politics of 5 Antimiscegenation Law and the Regulation of Intimacy interracial intimacy. After World War II, the need to make race reform public—because of international concerns and because of the civil rights movement—came into conflict with American society’s attempt to contain the...