by Will Hogue
In the wake of the Kim Davis scandal, where Davis, a Rowen County, Kentucky clerk denied a marriage license to a same-sex couple on the grounds of religious freedom in 2015, Governor Mike Huckabee came to her defense. In a nationally broadcast interview with CNN’s Jake Tapper, Huckabee was asked how his and Davis’s stance, in the wake of the Supreme Court decision Obergefell v. Hodges which legalized gay marriage, could be justified in comparison with the court’s ruling in Loving v. Virginia which struck down bans on interracial marriages. Tapper inquired, “I know that you are a supporter of the Loving v. Virginia decision in 1967 which outlawed all bans on interracial marriage…. Even after the bans were struck down, even though there may have been Mormons or adherents to Bob Jones who, at the time, thought of blacks as inferior, as taught by their religion… you would have said [law clerks] have the right to defy the Supreme Court.” Huckabee, confidently retorted, “It’s not the same case. That was an interpretation of marriage, but it’s still man-woman marriage. This is a completely new, total redefinition of marriage. And, I think what’s important is we have a county clerk who is not accommodated for her faith.”1CNN, “Mike Huckabee Defends Kentucky Clerk Kim Davis,” YouTube (CNN, September 4, 2014), https://www.youtube.com/watch?v=X24TE0R_Ekc. This statement from Huckabee is one that many Americans likely agreed with, but the question for me was, is it not the same case?
In her groundbreaking book on miscegenation law, What Comes Naturally, historian Peggy Pascoe argued that the “bottom line of white supremacy” was the naturalizing of anti-miscegenation law.2Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York, New York: Oxford Univ. Press, 2011), 1. She argued that race-mixing was prohibited by the white male elite using “three animating fictions—one constitutional, one scientific, and one popular” which served to create a natural law basis for constitutional separation.3Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York, New York: Oxford Univ. Press, 2011), 6. Natural law, “a body of unchanging moral principles regarded as a basis for all human conduct,” is generally grounded in the cultural and religious prohibitions of a given society, and gives moral, natural credence to something as part of, or counter to human nature.4Oxford English Dictionary, 2nd ed. (Oxford: Oxford University Press, 2004), s.v. “Natural Law.” When we look to the legal arguments posed for anti-miscegenation law we find that even at the highest levels, the moral and scientific language of “human nature” was involved to maintain the social order. From the Western medieval period, sodomy laws prohibited any sex which was not productive—heterosexual, homosexual, and beastial.5Zeb Tortoricci, Sins Against Nature: Sex and Archives in Colonial New Spain (Durham, NC: Duke University Press, 2018). These miscegenation acts against nature, were often legally seen as sodomy because they were considered unprocreative or encouraging “deplorable results.”6Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 71. Under this umbrella of sodomy was beastiality, which according to Victorian race science after the antebellum property laws of the United States included the mixing of “negroid” and “caucasoid” human races. As Keith Sealing writes:
To the monogenists, slavery or anti-miscegenation laws based upon a theory of White superiority over a fellow descendent of Adam had to be justified by a theory of specific unity followed by racial degeneration…. Although the proponents of the second theory had an apparently more scientific justification for slavery and anti-miscegenation statutes, it was not well-received in the South because it conflicted with the Bible. The “polygenists” saw Blacks as a separate and inferior species descended from a different Adam, and, thus, saw slavery as qualitatively no different from the ownership of a horse, and miscegenation as approaching bestiality. But the polygenists had one major problem: species are generally defined as populations that cannot mate, or populations that if successfully mated produce sterile offspring, such as the mule [the word “mulatto” is often considered to derive from the Spanish for mule, although this is debated]. Every admitted child of master and slave stood as evidence against the polygenists’ separate species theory. Polygenists were forced to hold fast to the position that these mixed-race individuals were of diminished fertility, even though that was patently false, or else to redefine the term “species” to fit the obvious fact of vigorous infertility between Whites and Blacks.7Keith Sealing, “Blood Will Tell: Scientific Racism and the Legal Prohibition Against Miscegenation,” SSRN Electronic Journal, 2000, https://doi.org/10.2139/ssrn.1260015.
As Kathleen Belew showed in her work on 20th century white supremacists, the idea of preserving the “naturally ordained” hierarchies of racism and sexism were beholden to an understanding of compulsory heterosexuality and procreative intercourse. This logic, in the neo-fascist’s eyes would see homosexuality as a crisis to bring the demise of Western White Civilization.8Kathleen Belew, Bring the War Home the White Power Movement and Paramilitary America (Cambridge, MA: Harvard University press, 2019). Fundamentally, these laws existed to keep two groups as distinct castes—women and African Americans. The creation of these illicit castes made natural and inferior African American sex, and the supposedly “passive” women.9Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as Sex Discrimination,” The Yale Law Journal 98, no. 1 (1988): p. 145, https://doi.org/10.2307/796648., 147. This passivity is a pejorative stereotype applied to women, blacks, and homosexuals which serves to preserve the white propertied male as the hierarchical head. In all of this, there is a concern for the property rights of white men and, as one judge put it, the “highest advancement of our cherished Southern civilization.”10Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 71. In the end, the preservation of this social order depended on officials at the local level—county clerks—who Pascoe referred to as the “gatekeepers of white supremacy.”11Pascoe, What Comes Naturally, 4. It seems that this “white supremacy” is protected, both in anti-miscegenation and anti-gay marriage law through the tripartite rationale Pascoe explicates. A tiny section of What Comes Naturally is dedicated to the connection activists drew between Loving and the fight for gay marriage; however, revisiting the topic in our current political climate with a resurgence of white nationalism and homophobia seems both timely and necessary.
American laws prohibiting intermarriage between whites and people of color date back to the colonial era. However, the rights extended to black people in the Reconstruction amendments created a newfound panic around interracial sex and the slippery slope to race-mixing. “Scientific” arguments, based on miscegenation as sodomy, were offered to defend this bias. James Trosino cites the 1883 State v. Jackson case which claimed, “It is stated as a well authenticated fact that if the issue of a black man and a white woman, and a white man and a black woman, intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites.”12Issac West, “Analogizing Interracial and Same-Sex Marriage,” Philosophy & Rhetoric 48, no. 4 (2015): https://doi.org/10.5325/philrhet.48.4.0561, 4. There were also scientific studies to defend the argument for bestiality that suggested “mulattoes” could not bear children past the third generation, and that those who were born would be “sickly” and “effeminate.”13Pascoe, What Comes Naturally, 7. Psychologists and eugenicists had also similarly classified people of African descent and homosexuals as mentally inferior and mentally disordered, respectfully. These pseudo-scientific rationales not only rest on racism and homophobia, but on the understanding that marriage is an institution which only exists for procreation. Of course, scientific studies were not employed to ban women from marrying after menopause, and the question of adoption does not figure into these late nineteenth century arguments as a way of having children; rather, these studies were employed within a system with preconceived ideas about race and sexuality.
The removal of homosexuality from the American Psychiatric Association’s list of disorders in 1973, supported by the widespread existence of same-sex attraction as reported by Alfred Kinsey among others, sparked the decriminalization of gay sex state by state, to be held up by the Supreme Court in the 2003 case Lawrence vs. Texas.14Neel Burton MD., “When Homosexuality Stopped Being a Mental Disorder,” Psychology Today, Spt. 18, 2015. https://www.psychologytoday.com/us/blog/hide-and-seek/201509/when-homosexuality-stopped-being-mental-disorder. Similarly, as Phoebe C. Godfrey argued, the equality that blacks obtained through Brown vs. Board, which was justified, in part, due to a psychiatric belief in the inferiority of black mental faculties, mirrors Lawrence, and was likewise grounded in a fear of the possibility of illicit sexual behavior.15Phoebe C. Godfrey, “Eschatological Sexuality: Miscegenation and the ‘Homosexual Agenda’ From Brown v. Board of Education (1954) to Lawrence v. Texas (2003),” Race, Gender, and Class, Vol. 19, 3-4 (2012), 143-160. When these pseudo-scientific arguments eventually fell flat, the argument rested on the same Christian morality which served to make this sex taboo. As Trosino writes, “the heterosexual supremacist’s fear that legalized gay marriage will taint traditional heterosexual marriage also is closely analogous to the white supremacist’s fear that miscegenation would harm white womanhood… something sacrosanct.’”16James Trosino, “American Wedding: Same Sex Marriage and the Miscegenation Analogy,” Boston University Law Review 73 (1993), 110. These arguments, and most of the arguments against miscegenation and gay marriage, rely on a moralization grounded in white Christian traditions.
Also, as Darwinism forced polygenists to rethink their arguments about multiple human races or deny evolution entirely, the existence of homosexuality in nearly all mammal species, particularly in great apes, eroded the argument of homosexuality as against nature.17W. Byne, “Biological Exuberance: Animal Homosexuality and Natural Diversity,” JAMA: The Journal of the American Medical Association 283, no. 16 (2000): pp. 2170-2170, https://doi.org/10.1001/jama.283.16.2170. A lesser studied aspect of the religious debate over the theory of evolution is its connection to upholding the racist order. Indeed, Darwinism opened up the possibility of denying the existence of multiple human races for the one “Out of Africa” human race, and the “naturalized” prohibitions against sodomy could be contextualized with other species of Great Apes. Until Darwin, the polygenetic idea of Co-Adamism, as supported by Giordano Bruno, Charles White, and others argued that Africans were a separate race, and that, like mules and other hybrid animals, they would be impaired due to the bestiality involved in their reproduction.18David N. Livingstone, Adam’s Ancestors: Race, Religion, and the Politics of Human Origins (Baltimore, MD: Johns Hopkins Univ Press, 2011), 15. These arguments about the naturalness of anti-miscegenation and strict heterosexuality fell flat with the general acceptance of On the Origin of Species, however the cultural and religious afterlife of these beliefs can still be felt in our social and legal structures.
Christian ideology on sodomy and bestiality is probably the most influential and lasting source both for supporting anti-miscegenation and opposing same-sex marriage laws. While Pascoe does not focus on Christianity specifically, ideas surrounding “Christian Civilization” are overwhelmingly present in the book. She argues that the ideas of “illicit sex” and legitimate marriage served to preserve “white purity” by ensuring any sex outside of marriage was illicit. This made all sex between members of the same sex, and interracial sex illicit.19Pascoe, What Comes Naturally, 12. However, as becomes clear in the book, what was considered moral and immoral was largely dictated at the state and local level by the Protestant dominant ideology. At Indiana’s founding in 1866, State Supreme Court Justice Buskirk noted that:
Marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself, it is recognized in all Christian and civilized nations… the right, in states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution… cannot be surrendered.20Pascoe, What Comes Naturally, 56.
This was one of the justifications for Indiana’s anti-miscegenation law. Likewise, Trosino quotes the 1877 Green v. State case defending anti-miscegenation which claimed that God had “made the two races distinct.”21James Trosino, “American Wedding: Same Sex Marriage and the Miscegenation Analogy,” Boston University Law Review 73 (1993), 103. These religiously inspired condemnations of interracial marriage were not confined to the 19th century, however. Indeed, the trial judge in Loving wrote:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.22“U.S. Reports: Loving v. Virginia, 388 U.S. 1 (1967).,” The Library of Congress, accessed December 11, 2019, https://www.loc.gov/item/usrep388001/.
This line of thinking is consistent with the “popular animating fiction” Pascoe discusses which was present in many white Christians’ worldviews. When the courts and legislatures had finally reached a place where they could no longer defend white supremacy scientifically, or by way of God’s Natural Law, they relied on the First Amendment right to religious liberty. Religious groups which were inspired by polygenism often relied on an ancient argument that the African race is descended from Noah’s dark-skinned a cursed son Ham. Thus, in this view, Hamites (Africans) were doomed to serve light-skinned (Caucasians) for all time.23Michael F. Robinson, The Lost White Tribe: Explorers, Scientists, and the Theory that Changed a Continent (New York: Oxford University Press, 2016), 85-94. Famously, Mormons prohibited interracial dating, and the evangelical Bob Jones University was taken to the Supreme Court over its ban on interracial dating which made it lose its tax-exempt status, but the ban remained in place citing the First Amendment. (Bob Jones did not lift the ban until the year 2000).24“Bob Jones Univ. v. United States,” Legal Information Institute (Cornell Law), accessed December 23, 2019, https://www.law.cornell.edu/supremecourt/text/461/574.
This first amendment argument on the basis of individual religious freedom continues to be the predominant avenue through which people oppose same-sex marriage. When Mike Huckabee referred to same-sex marriage as a “total redefinition,” we must keep in mind how closely related race mixing was to sodomy and bestiality in American law and consciousness. Indeed, Christianity has done much to naturalize compulsory heterosexuality and anti-miscegenation from antiquity to the present, but they have always existed, just as same-sex marriage and civil unions existed in various cultures.25For references to Homosexuality in the Middle Ages and Ancient Europe, see: John Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century (Chicago: The University of Chicago Press, 2015). For references to Homosexuality and Same-Sex marriage in Asia see: Bret Hinsch, Passions of the Cut Sleeve: the Male Homosexual Tradition in China (Berkeley, Calif: University of California Press, 1992)., and Gregory M. Pflugfelder, Cartographies of Desire: Male-Male Sexuality in Japanese Discourse, 1600-1950 (Berkeley: University of California Press, 2007). This may seem superfluous, but given the ancient moral roots of Christianity and aspects of American law, these prejudices shaped the creation of the entire legal tradition. Brown, Loving, Lawrence, and Obergefell all created a backlash in which conservative Christians sought to maintain the previous system in the name of their individual first amendment rights. Not only could law clerks, like Kim Davis, make it difficult for same-sex couples to gain marriage licenses, but as the 2019 case Masterpiece Cake Shop v. Colorado Civil Rights Commission shows, discrimination based on religious freedom will be federally upheld where it stands for LGBT people, whereas the religious freedom to discriminate by race in public services was shot down in Newman v. Piggie Park in 1968 via a definition of the Civil Rights Act.26Jared Ham and Amanda Wong, “Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission,” Legal Information Institute (Cornell Law), accessed December 13, 2019, https://www.law.cornell.edu/supct/cert/16-111, and “Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941 (D.S.C. 1966),” Justia Law, accessed December 12, 2019, https://law.justia.com/cases/federal/district-courts/FSupp/256/941/2349546/. While the Civil Rights Act of 1964 gave workplace protections and legal access to public services to African Americans, there are no workplace protections against religious freedom bias for LGBT people in a majority of U.S. states.27“Non-Discrimination Laws,” Movement Advancement Project, accessed December 13, 2019, https://www.lgbtmap.org/equality-maps/non_discrimination_laws. The Supreme Court will decide whether Title VII of the 1964 Civil Rights Act includes sexuality and gender identity, or not, in 2020. The court is projected to make a narrow decision on the issue, and it seems they may not rule in favor of LGBT rights.28Adam Liptak and Jeremy W. Peters, “Supreme Court Considers Whether Civil Rights Act Protects L.G.B.T. Workers,” The New York Times (The New York Times, October 8, 2019), https://www.nytimes.com/2019/10/08/us/politics/supreme-court-gay-transgender.html.https://www.chicagotribune.com/business/ct-biz-cb-lgbt-workplace-discrimination-case-20191007-5q2lvkrco5eqnmk4y3kztv6l7a-story.html. So while county clerks, the traditional “gatekeepers of white supremacy,” have lost much of their ability to prevent the illicit behaviors of mixed-race and same-sex marriage to support the white patriarchy, the private sector in a majority of states still has the first amendment right to discriminate legally against LGBT employees and users of public space, and African Americans are continually denied access or removed from public space, sometimes though violence.
Interestingly, the first amendment religious freedom argument which preserved this racist line of thinking also helped to bring it down. The Los Angeles Catholic Interracial Council, a coalition of interracial Catholics who sought to end anti-miscegenation laws worked to support the marriage of a white Latina Catholic and a black Catholic man. Since the Catholic Church had banned the belief in polygenism and anti-miscegenation in Pius XII’s 1950 encyclical Humani Generis, the group stated that anti-miscegenation defied their religious freedom. While the Catholic hierarchy distanced itself from the group, the case went to trial and struck down the anti-miscegenation laws in the state of California.29Pascoe, What Comes Naturally, 223. While religious freedom was part of the fight against miscegenation as well as for it, same-sex marriage has taken to employ the language of human rights instead. In both cases it was essential to break down the tradition of natural law which used was created with a European patriarchal bias to establish laws around sex and marriage. Sodomy law, rather than just miscegenation law specifically, to expand Pascoe’s thesis, seems to be the “bottom line of white supremacy.”30Pascoe, What Comes Naturally, 1.
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