Power & Market

A Study in Decentralization: Colorado’s Two Sets of Marriage Laws

My social media feed tells me today is “Loving Day,” which is the anniversary of the day the US Supreme Court invalidated state laws against against interracial marriage. Specifically, the name “Loving Day” refers to the case of Loving v. Virginia (1967), in which the Warren Court struck down the criminal convictions of Richard and Mildred Loving, two people found guilty of breaking the state’s prohibition on interracial marriage. This was, at the time, a criminal act under state law. Many states during the twentieth century began to repeal a variety of restrictions on marriage long before the Loving decision, but sixteen states retained these restrictions, which the decision rendered unenforcable.

Marriage Laws Had Been Decentralized

The court’s move to invalidate state laws on the matter was part of a growing trend to federalize what had been state and local matters. This included, for example, both abortion and immigration.

Among the states with restrictions on interracial marriage was Colorado, at least until these laws were repealed in 1957. Colorado appears to have been a special case, however, in that marriage laws were not uniform within the state during the days of the interracial marriage prohibition. Although it appears that all other states had uniform laws in this respect, Colorado had two different sets of laws coexisting side by side. 

Colorado’s Two Sets of Marriage Laws: An Odd Case Study

Specifically, the northern part of the state restricted interracial marriage, while there was no such probitition further south. 

Specifically, the statute read:

Also all marriages between Negroes and mulattoes, of either sex, and white persons, are declared to be absolutely void.

Penalties for breaking this statute included fines ranging from $50 to $500 ”or imprisonment of not less than three months nor more than two years.”1

But Colorado alone had an odd addition to this. It reads:

The provisions of this statute are not to be so construed as to prevent the people living in that portion of the State acquired from Mexico from marrying according to the custom of that country.2

This exception stems from the fact that the US border once stopped at the Arkansas River in southern Colorado. After the Mexican War (1846–48) the US annexed much of the northern half of Mexico, including the portions of modern-day Colorado south of the river. These portions were acquired with the promise that the US would not violate the established legal customs of the indigenous Mexican population. This was a feature of the Treaty of Guadalupe Hidalgo.

Thus, when Colorado adopted its anti-mixed-marriage statutes in the late nineteenth century, it had been less than twenty years since the signing of the treaty. It is likely that state representatives and senators from the southern part of the state insisted on an exemption for the part of the state that had formerly been Mexico, and where laws governing race relations were quite different.

(The formerly Mexican portion of the state was not without political influence, as we can extrapolate from the fact that a third of the framers of the Colorado Constitution were Spanish speakers and from the fact that the original state constitution stipulated that all new laws be promulgated in Spanish as well as English.)

Interracial Marriage Was Viewed Differently in Southern Colorado

The social structure of New Mexico (and Mexico overall) was more fluid in terms of race than was the case in the Anglo-dominated portions of the United States. According to historian Richard White in his history of the American West, residents of New Mexico (the northern portion of which would eventually be absorbed by Colorado) did indeed group themselves into whites, mestizos, and Indians. Whites were at the top of the social ladder and Indians at the bottom.

But there was a catch. White writes:

The elites of New Mexico and California, who were more often mestizo than Spanish, created a myth of pure Spanish descent to validate their state and ensure their rule over people who, in fact, shared a similar descent. They imposed fictitious racial categories to buttress a social order already in place.

In a sense, racial categories were invented after the fact to solidify a certain social order. But by then it was difficult to distinguish different social classes based on physical appearance or perceived race. Because the Catholic Church was generally laissez-faire on marriage between two baptized persons of any race, intermarriage (mostly with members of Indian tribes) had significantly blurred racial lines in New Mexico and other areas that were formerly part of Mexico.

Thus, had legislators in Denver attempted to impose race-based regulations on southern Colorado, this would have been nonsensical from the perspective of a Mexican-American who viewed race quite differently from an Americans of more Anglo-dominated regions. For the Mexican-Americans of New Mexico and southern Colorado, “race” was code denoting socio-economic class.  Things were quite different further north in the state. Moreover, such a mandate against intermarriage could easily have been construed as a violation of the Treaty of Guadalupe Hidalgo, at least in spirit.

Marriage Regulations Violate Private Property Rights

In this case of marriage laws, it was the formerly Mexican portion of the state that was closer to having it right. Marriage was mostly regulated by the private sector (i.e., the church) or essentially unregulated altogether, as was the de facto situation in many parts of the American West and Southwest.

Morally speaking, of course, governments cannot legitimately restrict the ability of private parties to enter into a marriage contract, and from the state’s perspective, all marriage should be is a contract.

Certainly, there are religious and moral aspects to marriage, but these are all rightly regarded as well beyond the authority and expertise of government officials. Just as governments have no legitimate authority when it comes to regulating baptisms or bar mitzvahs, the same is true of marriages. Moreover, the regulation of marriage by civil governments is a modern innovation—mostly gaining added prominence with the rise of strong postmedieval states in Europe—and hardly fundamental to the maintenance of stable human societies. A consistent respect for property rights would lead to human beings forming their own households as they saw fit. No state action is needed.

Indeed, marriage laws were of minor importance in the United States until decades after the Revolution. Writing in the New York Times, historian Stephanie Coontz has noted that marriage restrictions were novel in the nineteenth century and that it was only in the second half of the century that governments “began to nullify common-law marriages and exert more control over who was allowed to marry.” Many of these nullified marriages were between individuals of varying ethnic and racial groups. Over time, other regulations were added, such as requirements that couples submit to a blood test before a marriage could be legal. All of these regulations have been illegitimate from a human rights/property rights perspective.

Freedom to Contract or Equal Protection?

But even when the Supreme Court got the sentiment right, it botched the legal ruling. As with so many other legal issues, the Supreme Court’s reasoning missed the central problem with government regulation of marriage. The court ruled that the state law was not valid because it violated the Equal Protection Clause. Earlier court decisions had ruled that the concept of equal protection was not violated because enforcement applied equally to all parties of all races involved in these illegal unions. The Warren Court thus invented new lines of reasoning to justify why the older court decisions had been wrong.

A much more straightforward line of reasoning would have been this: human beings have a natural human right to freely contract, and a government cannot restrict this. This sort of ruling should not have been beyond the comprehension of the court. After all, ruling in favor of contract rights was standard operating procedure during the court’s Lochner era. At that time, the court often ruled against government restrictions on private agreements precisely because those restrictions violated private contract rights.

However, the Warren Court had little interest in protecting property rights and so had to find some other rationale to rule against interracial marriage. The court apparently settled on a due process argument. Had the court gone with a reasoning that upheld free association and contract rights, of course, this would have invalidated any number of federal laws from drug prohibitions to public accommodation requirements. Obviously, the court wasn’t going to allow that to happen.

And then there is the issue of “incorporation,” the problem with the notion that federal courts ought to be in the business of declaring state and local laws invalid.

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