Pace v. Alabama, 106 U.S. 583 (1883), was a case in which the United States Supreme Court affirmed that Alabama's anti-miscegenation statute was constitutional. This ruling was overturned by the Supreme Court in 1964 in McLaughlin v. Florida and in 1967 in Loving v. Virginia.
The plaintiff, Tony Pace, an African-American man, and Mary Cox, a white woman, were residents of the state of Alabama, who had been arrested in 1881 because their sexual relationship violated the state's anti-miscegenation statute. They were charged with living together "in a state of adultery or fornication" and both sentenced to two years imprisonment in the state penitentiary in 1882. Because "miscegenation," that is marriage, cohabitation and sexual relations between whites and "negroes," was prohibited by Alabama's anti-miscegenation statute (Ala. code 4189), it would have been illegal for the couple to marry in Alabama. Because of the criminalization of interracial relationships, they were penalized more severely for their extramarital relationship than a white or a black couple would have been.
Little is known about Pace and Cox. In Alabama, they were charged with "adultery or fornication," not with marriage or attempted marriage. Both Pace and Cox appealed their conviction. They both claimed the anti-miscegenation statute violated the United States Constitution. On appeal, the Alabama Supreme Court affirmed their conviction, ruling that the statute did not violate the equal protection clause of the Fourteenth Amendment because it did not constitute discrimination for or against either race to prohibit interracial sexual relations. While focusing on the crime of "adultery or fornication" and not mentioning the state statute's prohibition of interracial marriage directly, the court did go on to condemn all sexual relations between whites and blacks, whether extramarital or marital, because of the interracial offspring in which they could result: "The evil tendency of the crime [of adultery or fornication] is greater when committed between persons of the two races ... Its result may be the amalgamation of the two races, producing a mongrel population and a degraded civilization, the prevention of which is dictated by a sound policy affecting the highest interests of society and government." (Pace & Cox v. State, 69 Ala 231, 233 (1882)
Tony Pace's attorney, John Tompkins, appealed the ruling against his client to the Supreme Court. Apart from the Fourteenth Amendment, there was little legal precedent at the federal level for the Supreme Court to base its decision on.
The Supreme Court based its decision on Alabama's state law and on a "separate but equal" interpretation of the Fourteenth Amendment that prefigured a similar interpretation in Plessy v. Ferguson in 1896. Plessy as "Passing": Judicial Responses to Ambiguously Raced Bodies in Plessy v. Ferguson | Law & Society Review | Find Articles at BNET.com
In the Antebellum era, "miscegenation" was criminalized in Alabama as a misdemeanor.
After the civil war, the reconstituted Alabama legislature passed a new anti-miscegenation measure in 1866 which made interracial marriage and interracial sex a felony that resulted in a prison sentence of two to seven years. Anyone attempting to officiate an interracial marriage could be fined up to one thousand dollars and could be imprisoned for up to six months.
Alabama's 1866 anti-miscegenation statute and similar anti-miscegenation laws in other states of the former Confederacy began to be challenged after Radical Reconstruction began in 1867. Federal oversight by Radical Republicans in Congress, enforced by federal troops, lead to more political power and social freedom for the Freedmen, the emancipated slaves.
The electorate, which for the first time included a large percentage of black voters, selected three white Republicans, to constitute a new state supreme court. The new court ruled in 1872 in Burns v. State, 48 Ala. 196 that Alabama's anti-miscegenation law violated the equal protection clause of the Fourteenth Amendment.
In 1874, as part of the process of Redemption, the Democrats again took control of the state government and the state supreme court and set out to restrict the political and social rights of the Freedmen and to re-establish white supremacy.
In Green v. State, the new judges in the Alabama Supreme Court challenged the interpretation in Burns of the history and scope of the Fourteenth Amendment. The court pointed out that many northern states prohibited miscegenation, and had done so at the time of the passage of the Fourteenth Amendment. The court also argued that the Fourteenth Amendment did not refer to miscegenation specifically. Therefore the freedom of states to prohibit whites and blacks from marrying each other could not be infringed.
The court argued that it was the duty of the state to protect marriage as a public institution. The state needed to protect married couples "against disturbances from without." By such "disturbances" the court meant interracial relationships. Intimate relationships between whites and blacks, "elements so heterogeneous that they must naturally cause discord, shame, disruption of family circles, and estrangement," were incompatible with the white family life that the state needed to protect, the court argued. Therefore such relationships had to be prohibited, and interracial couples had to be broken up.
In Green v. State, the Alabama Supreme court challenged the view that marriage was a contractual relationship protected by the freedom of contract. In the case of interracial marriage, this could not be the case. In a subsequent case, Hoover v. State, the court declared that all interracial marriages were "absolutely void."Pace v
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