Tensions Not Unlike that Produced by a Mixed Marriage: Daniel Marshall and Catholic Challenges to Anti-Miscegenation Statutes

Tensions Not Unlike that Produced by a Mixed Marriage: Daniel Marshall and Catholic Challenges to Anti-Miscegenation Statutes Sharon M. Leon Introduction O n June 12, 2007, in marking the fortieth anniversary of the United States Supreme Court’s decision in the Loving v. Virginia case, which declared anti-miscegenation statutes unconstitutional, National Public Radio’s All Things Considered ran a piece that was close to thirteen minutes. The story reviewed the circumstances of Richard and Mildred Loving’s marriage and their fight to live freely and happily in Virginia. The piece closed with a focus on the continuing challenges for interracial couples in contemporary society.1 The import of the decision is also visible in the fact that many interracial couples and their friends and family celebrate “Loving Day” on or around June 12 each year.2 Thus, Loving continues to stand out in the national memory as the signifier of racial justice for these couples. However, few people, if anyone aside from Andrea Perez, Sylvester Davis, and their immediate families, remember to mark the date of October 1, 1948 as a significant step forward in the battle for racial justice. But with the sixtieth anniversary of that date, proponents of racial justice and scholars of American Catholic history would do well to focus some attention on Perez and Davis’ plea before the California State Supreme Court. In issuing his ruling in the Perez v. Lippold case, Justice Roger Traynor concluded that the California statute, which prohibited state officials from issuing a license “authorizing the marriage of a white person with a Negro, mulatto, Mongolian or a member of the Malay race,” violated the Fourteenth Amendment right to equal pro27 1. “Loving Decision: 40 Years of Legal Interracial Unions,” All Things Considered, National Public Radio (June 12, 2007). Available at http://www.npr.org/templates/story/story.php?storyId=10889047. 2. See, Loving Day http://www.lovingday.org/ for more information about these celebrations. tection under the law.3 While Justice Traynor’s opinion represents a significant step in U.S. jurisprudence, the petitioner’s initial arguments regarding the statute are instructive and present an opportunity to examine the intersection of laws circumscribing the right of certain classes of persons to marry and reproduce with the teachings of the Catholic Church. In stating his case for his clients, Daniel Marshall, a long-time activist in the Los Angeles Catholic Interracial Council, argued that since Andrea Perez and Sylvester Davis were both members of the Roman Catholic Church, which maintained no official prohibition against interracial marriages, the California statute constituted a violation of their right of free exercise of religion by preventing them from participating in the sacrament of marriage. This innovative argument suggested that due to its sacramental nature, the rightful jurisdiction over the regulation of marriage rested with the Church and not the state. By so arguing, he placed the Church’s canon law in direct confrontation with the state legislative code. In essence, Marshall’s position argued that canon law took precedent over the California statute. Daniel Marshall’s argument in the Perez case was more than “an end-run strategy,” as historian Peggy Pascoe has referred to it.4 Rather, Marshall’s appeal to the Church’s jurisdiction over the marriage contract was an attempt to bring an alternative, highly articulated, system of law into direct confrontation with a civil legal code that bolstered Anglo-Protestant hegemony. As a complex and structured system that wielded both an ideology and force of coercion of its own, canon law provided Marshall with a way to resist racialist structures because the Church’s code makes no distinction between individuals based on race. Rather, the key emphasis falls on religion. While Marshall made his argument midway through the twentieth century, a concern over marriage and intrusion of the state’s power had been a recurring issue for Catholics to consider for much of the previous thirty years. Though this argument about free exercise has been traditionally overlooked by scholars, an examination of the Perez case and its antecedents provides one way to take up historian John McGreevy’s call for scholars to analyze “how theological traditions help believers interpret their...