This is Part 2 of a 7-part series entitled, “Alabama’s Anti-Miscegenation Statutes.” I posted Part 1, “A Short History of Anti-Miscegenation Statutes,” last week.
Setting Precedent (1868-1881)
In addition to a law disallowing marriage between whites and blacks, the Alabama Penal Code of 1866 adopted laws governing adultery. Whereas Alabama Code § 3598 outlined the repercussions of adultery offenses generally, Alabama Code § 3602 specifically addressed the penalties for adultery between white and black persons:
If any white person or negro, or the descendant of any negro, to the third generation inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery with each other, each of them must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county for not less than two nor more than seven years.
Ellis v. State
In 1868, Thornton Ellis (a black man) and Susan Bishop (a white woman) appealed to the Supreme Court of Alabama following their criminal convictions for having violated § 3602 of the Alabama Penal Code, for which each was assessed a fine of one hundred dollars. Under the code, however, there was no procedure for a monetary fine to be assessed for this crime, only imprisonment. The conviction was appealed on the grounds that the statute violated the Fourteenth Amendment. In the first decision of the Supreme Court of Alabama pertaining to anti-miscegenation statutes, the Court held that Alabama Penal Code § 3602 did not run counter to the Fourteenth Amendment:
“We think the court erred in the conclusion that § 3602 contravenes the act of Congress [the 14th Amendment]. That act requires that persons of ‘every race and color’ shall be subject to like ‘punishment, pains and penalties, and to none other.’ It prohibits a discrimination, on account of color or race, in the imposition of punishment. It does not prohibit the making of race and color a constituent of an offense, provided it does not lead to a discrimination in punishment. § 3602 creates an offense, of which a participation by persons of different race is an element. To constitute the offense, there must be not only criminal intercourse, but it must be by persons of different race. When the constituents of the offense are ascertained, no discrimination in punishment is made between the guilty white and black parties. The white man who lives in adultery with a black woman is punished in precisely the same manner, and to the same extent, with the black woman. So also the white woman is punishable in precisely the same manner with the black man with whom she may have maintained an adulterous connexion [sic]. Adultery between persons of different races is the same crime as to white persons and negroes, and subject to the same punishment.”
In its landmark decision, the Alabama Supreme Court did not address whether it was constitutional to have a law that disallowed intercourse between persons of differing races, but rather held that because the punishment for such an interaction was the same for either party, the statute was therefore not contrary to the Fourteenth Amendment. Moreover, the Court held that § 3602 was not unconstitutional because the Fourteenth Amendment did not disallow the use of race as an element or “constituent” of a crime.
Burns v. State
The Alabama Supreme Court next addressed Alabama Code § 3602 four years later in the matter of Burns v. State, in which the appellant Burns had been convicted and fined for having violated code § 3602. In its ruling in Burns, the Court in referring to its ruling in Ellis v. State, stated that “it was held that there is no conflict between this act [the 14th Amendment] and the sections of the Revised code referred to [Alabama Code § 3602]” but espoused a new interpretation:
Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other.
Rather than overturn code § 3602 as unconstitutional, the Court issued a narrow holding, reversing the decisions of the lower courts and ordering that Burns be discharged not because of any inequality inherent to the statute, but rather that the indictment failed “to charge any offense, and the facts set forth in it show that no prosecution can be sustained against the defendant.” The Court refused to address, in light of its recognition that the Fourteenth Amendment intended not only to create “an equality of the races in reference to each other” but also “to destroy the distinctions of race and color” in the eyes of the law, whether it further interpreted the constitutionality of using race as an element of a crime.
Green v. State
In December 1877, the Supreme Court of Alabama handed down two separate rulings addressing the state’s anti-miscegenation statutes. By this time the justices comprising the Alabama Supreme Court had changed and the tenor of their decisions had transformed markedly from the Court in 1868, resulting in much less tolerant rulings. In Green v. State, Aaron Green (a black male) and Julia Atkinson Green (a white female) were convicted of having married one another in Butler County, Alabama, on July 13, 1876, in violation of the Alabama Code of 1876 § 4189. The question before the Court was “whether or not the State may make the marriage of a white person with a person of the negro race, a punishable offense.” The Court in Green held that the view in Burns was “very narrow” and “illogical” in that the law was no more tolerant of any one race than another and “each of them is punishable for the offense prohibited, in precisely the same manner and to the same extent. There is no discrimination made in favor of the white person, either in the capacity to enter into such a relation, or in the penalty.” In considering the Alabama statute’s constitutionality in light of the Fourteenth Amendment, the Green Court held:
[A]s no mention was made in the act [Fourteenth Amendment], or in any other act of congress, of such intermarriages, the presumption is that it was not intended to secure to persons of the negro race any greater rights in those northern States, or consequently in any other, than they already enjoyed in them. It is apparent, therefore, that the statute of Alabama is not in conflict with the act congress….”
Whereas the Court in Ellis had held that the Fourteenth Amendment did not disallow the use of race as an element of a crime as pertains to adultery, the Green Court extended that same interpretation to marriage.
In keeping with its broader interpretation, the Court reflected on marriage as an institution, thereby perpetuating its true concerns of preserving the races distinctly apart from one another and revealing its paternal perspective of its role as the protector of society against society itself.
“Marriage is not treated as a mere contract between the parties…. But it is treated as a civil institution, the most interesting and important in its nature, of any in society.”
This belief allowed the Court to justify its position that because God created the races distinct and dissimilar from one another, the natural law therefore “forbids their intermarriage and that amalgamation which leads to a corruption of races, as is clearly divine as that which imparted to them different natures.” The Green Court further held that anti-miscegenation statutes should exist “for the peace and happiness of the black race, as well as of the white race…. And surely there can not be any tyranny or injustice in requiring both alike to form this union [marriage] with those of their own race only, whom God hath joined together by indelible peculiarities, which declare that He has made the two races distinct.”
Hoover v. State
In the same term as it decided Green, the Supreme Court of Alabama heard and decided Hoover v. State, in which Hoover (a black man) and Litsey (a white woman) had been living together as a married couple for three years. The Court held that Alabama Code § 4189 voided the purported marriage between the parties, as a result of which Hoover and Litsey “must be treated as unmarried persons, and their sexual cohabitation as fornication within the statute.” The Hoover decision was significant in that it set the precedent of nullifying a marriage between persons of differing races, which consequently resulted in the couple being in violation of statutes forbidding adultery and fornication.
- Part 1, “A Short History of Anti-Miscegenation Statutes“
- Part 2, “Nullifying Black-White Marriage in Alabama“
- Part 3, “Pace v. Alabama: Upholding Racial Classification at the Supreme Court“
- Part 4, “Repeat Offender: The Saga of Jesse Williams“
- Part 5, “Courts Move against Racial Classification and toward Interracial Marriage“
- Part 6, “Loving v. Virginia: An End to Interracial Marriage Bans“
- Part 7, “2001, A Race Odyssey: Alabama’s Anti-Miscegenation Statute is Repealed“
 Alabama Penal Code of 1866 § 3602. Alabama Penal Code of 1866 § 3598, governing adultery between two persons of the same race, ascribes the penalty for that crime as follows:
“If any man and woman live together in adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months; on the second conviction for the offense with the same person, the offender must be fined not less than three hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county for not more than twelve months; and on a third or any subsequent conviction with the same person, must be imprisoned in the penitentiary, or sentenced to hard labor for the county for two years.”
 Ellis v. State, 42 Ala. 525, 526-27 (1868) (emphasis added).
 Burns v. State, 48 Ala. 195 (1872).
 Burns at 197.
 Id. at 199-200.
 Green, 58 Ala 190, 191 (1877).
 Id. at 192.
 Id. at 193.
 Green at 193 (citing Judge Story, Confl. of Laws, § 200); Id. at 194 (citing Phila. & W. Chester R.R. Co. v. Miles, 2 Amer. Law Rev. 358).
 Id. at 195. The Court upheld the convictions of Aaron Green and Julia Atkinson Green for having been married in violation of the statute, stating not a little facetiously:”[W]e trust that the Executive of the State will find just reasons in this case, why appellant should receive a pardon.” Id. at 197.
 Hoover, 59 Ala. 57, 60 (1877). In Hoover as well, the Court upheld the convictions of the defendants, referring again to the possibility of “executive clemency” as the only avenue of relief available to Hoover and Litsey for their “very gross offence against morals and decorum.” Id.
This article first appeared in The Alabama Review, Vol 68, No. 4 (October 2015).