It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [59]
Why is the government involved at all with the institution of marriage? The government should not be in the business of determining who receives the contractual benefits of marriage, such as medical visitation and decision-making rights, inheritance rights, property co-ownership, and so on. You and your soon-to-be partner should determine who shares in the benefits of that marriage. Marriage should not be an institution of the state, but rather a contract recognized by the contracting parties and solemnized by either a cultural or a religious procedure or no procedure at all. When you buy a house, who solemnizes the contract?
Despite the relatively simple concept of excluding the government from your most personal affairs, our government’s history includes frequent meddling with this tradition. Before the Founders signed the Constitution, before colonial leaders signed the Declaration of Independence, they sought to prohibit interracial marriages. The first documented interracial marriage in our nation’s history was that of Pocahontas to John Rolfe. The story of these two individuals was passed down for ages and culminated in a Disney movie dramatizing the love between these two. While they were fortunate enough to marry almost forty-five years before the first anti-miscegenation law passed in 1661, the fairy tale was not happy for many other individuals. The anti-miscegenation laws prohibited mixed-race marriages in Virginia and numerous other states for more than three hundred years until the U.S. Supreme Court heard the case of Loving v. Virginia in 1967.13 Unfortunately, the period between 1661 and 1967 was fraught with additional government intrusions on the natural right to privacy.
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At first, the laws were not so restrictive. For example, in the early years, the colonial governments required colonists formally to register their marriages, but it soon became common practice to accept cohabitation as a form of registration. Yet, by the late nineteenth century, state governments began to nullify common-law marriages and exert more control over who could marry whom.14 By the early 1920s, thirty-eight states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians” “Malays,” or Filipinos.15 And, as if things couldn’t get worse, in 1924, Virginia passed a law prohibiting whites from marrying any individual with a “single drop of Negro Blood.”16 The Virginia legislature went as far as to prohibit marriages between a white individual and another individual who was 99-plus percent “white” and one drop “Negro.” Perhaps even more astounding is that this occurred within the last century. The government clearly felt no shame in meddling in the most intimate of affairs.
Congress, which has the power under the Fourteenth Amendment to nullify state laws that take life, liberty, or property away without due process, did nothing about these horrific laws. Congress allowed one law after another to pass without exerting any effort to protect natural rights. Fortunately, the Founders were wise beyond their years and created a government of checks and balances. In this case, the Supreme Court provided the “check.”
In the case of Loving v. Virginia (1967), the Supreme Court found Virginia’s anti-miscegenation laws unconstitutional and recognized our natural right of privacy. The case involved Perry Loving, a white man, who married his African American and Native American wife, Mildred Jeter. The couple married in Washington, D.C., which had no racial restrictions on marriage. After their ceremony, they returned to Virginia in the hopes of living in matrimonial bliss; yet, the bliss quickly faded. One morning, police officers broke into their home and barged into their bedroom to ask them what they were doing in bed together. Mr. Loving pointed to the marriage certificate on the wall, which the officers