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Peter Wallenstein

Excerpted from:  Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860's - 1960's,  70 Chi.-Kent L. Rev. 371- 437, 387-389 (1994).


 . . . .[Among] the cases appealed from trial courts in late-nineteenth century Alabama, one went on to the U.S. Supreme Court.  The nation's high court demonstrated no difficulty in accepting the main lines of argument that supporters of the Alabama antimiscegenation laws had developed from Ellis in 1868 to Hoover in 1878. Only the aberration of Burns remained as an exception and thus a reminder that the course of judicial history on miscegenation was not entirely inevitable.


  In November 1881, a Clarke County jury convicted a black man, Tony Pace, and a white woman, Mary Jane Cox, under section 4189 on charges of "liv[ing] together in a state of adultery or fornication."  Each received the shortest sentence that the law permitted, two years in the state penitentiary. When they appealed, the Alabama Supreme Court upheld the convictions.  Each defendant's punishment, the court observed, "white and black," was "precisely the same."  The differential punishment for interracial cohabitation was directed not "against the person of any particular color or race, but against the offense, the nature of which is determined by the opposite color of the cohabiting parties," an offense whose "evil tendency" was greater than if both parties were of the same race, as it might lead to "a mongrel population and a degraded civilization."


  Pace appealed to the U.S. Supreme Court.

Writing for a unanimous court, Justice Stephen J. Field rejected the argument that the Fourteenth Amendment's Equal Protection Clause offered a shield.  Rather, he adopted the Alabama court's line of reasoning.  Viewing the two sections of the Alabama law, Justice Field found them "entirely consistent" and in no way racially discriminatory.  Each, he insisted in all earnestness, dealt with a different offense.  Section 4189, he wrote,



  prescribes a punishment for an offense which can only be committed where the two sexes are of different races.  There is in neither section any discrimination against either race.  Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race.   The decision was understood, from that time to the 1960s, as reflecting a validation of state antimiscegenation laws.  But the Supreme Court had not confronted the question of whether, given that Pace and Cox could not become husband and wife, they would inevitably be liable to prosecution for "adultery or fornication" if they lived as such.  Only by implication had the ban against interracial marriage been addressed.  Moreover, only by indirection did the Court address the question of whether, since it was a first offense, the sentence should have been for no more than six months.  In any event, the Court had upheld the Alabama laws, and no southern state, for the next eight decades, displayed any inclination to repeal such laws.  Certainly Alabama did not.  The Supreme Court's decision in Pace v. Alabama would prove to have an even more durable career in the American law of interracial sex and, by extension, marriage than Plessy v. Ferguson would have on segregated transportation and, by extension, education.