Well, one of the counter-arguments sometimes used to "prove" the miscegenation analogy invalid is to say that anti-miscegenation laws weren't present in as many states as bans on gay marriage. This is probably true, but what does that really mean? That gay marriage is even more unpopular than interracial marriage (and therefore banning it this time around is somehow acceptable)? Or is it that in their zeal to dismiss the miscegenation analogy, they ignore one of the crucial differences between sexual orientation and race?
That is, race is visible. The population of different groups of peoples can be counted in the census, and races have generally been restricted to geographical regions. Certain states never needed to pass anti-miscegenation laws, because they knew that there was no-one in their state to whom the laws would apply.
Homosexuals, on the other hand, are like Communists: they're invisible, and they're everywhere. Thus, every patriotic legislature feels the need to pass legislation against them.
These were my initial thoughts on the matter; especially since, on page 219 of Interracial Intimacies: Sex, Marriage, Identity, and Adoption, Professor Randall Kennedy writes:
Every state whose black population reached or exceeded 5 percent of the total eventually drafted and enacted antimiscegenation laws.
Emphasis in the original.
However, I'm not sure where Kennedy gets this information. The document he cites says nothing of the sort. So, not one to let such assertions go unchecked, I began looking through historical censuses myself.
Such broad categories as "states that passed anti-miscegenation laws" and "those that didn't" are fairly meaningless, so I divided the states into five categories:
- those that never had anti-miscegenation laws
- those that had such a law, but repealed it before they appeared on the census
- those that had such a law, but repealed it before Perez v. Sharp was decided in 1948
- those that had such a law, but repealed it between 1948 and 1967
- those who still had such a law when Loving v. Virginia was decided in 1967
Perez v. Sharp was a case decided by the California Supreme Court which ruled its anti-miscegenation law unconstitutional under the 14th Amendment. Between 1948 and 1967, when the Supreme Court struck down Virginia's statute, 13 states repealed their laws--all but two of them after Brown v. Board had been decided. These categories then represent: states that never had such legislation; states that had such legislation but repealed it on their own; states that had such legislation, but repealed it after it was clear the statutes were unconstitutional; and those that stubbornly clung to their laws until forced to abandon them by the Supreme Court.
I mostly considered the populations up to 1940 for two reasons: because by 1950 the writing was on the wall, so to speak; and because for many states there was a sudden surge in the relative size of the black population, so such data would be statistical outliers.
States that never had anti-miscegenation laws
As I stated above, these were Alaska, Connecticut, Hawaii, Minnesota, New Hampshire, New Jersey, New York, Vermont and Wisconsin. Both Alaska and Hawaii joined the Union in 1959, several years after Brown v. Board, which reversed the interpretation of the 14th amendment that made anti-miscegenation laws constitutional. So they couldn't realistically have passed such laws anyways.
Of the other states, Minnesota, New Hampshire, and Vermont never had a black population greater than 1% of the total; most of the time it was around 0.3%, give or take one or two tenths of a percent. Of these three, only Minnesota had something of a Native American population, at around half a percent of the total from 1900 to 1970. None of them had any Asian population. (Note that when I say a state didn't have any people of a particular race, most of the time this is just shorthand for saying that their population was small enough to round to 0% of the total).
Wisconsin's black population never exceeded two percent of the total until 1970, and it had about 0.4% Native Americans from 1900-1970. Connecticut never exceeded three percent until 1960, and for the period 1860-1940 it was below two percent.
New York had a large (comparatively speaking) black population during slavery: 7.6% in 1790, 5.3% in 1800. However, if you don't count slaves as part of the population, then these numbers both drop below five percent. Afterwards, it didn't have much of a black population--from 1850 through 1920 less than two percent of New York was black. Afterwards it grew fairly quickly, reaching 6.2% of the total in 1950, and 8.4% in 1960. So if you discount slaves and any census past 1950, then New York's black population didn't exceed five percent of the total. It had a scant Native American and Asian population, at only 0.1% consistently from 1890 on.
Even with such tweaking, though, such is not true of New Jersey. Its free population was 5.75% black in 1830, and with slaves it was from 5-8 percent throughout slavery. Afterwards it dropped below four percent until 1930, when New Jersey's black population was 5.2% of the total--thus putting the lie to Dr. Kennedy's statement.
States that had anti-miscegenation laws, but repealed them before they appeared on the census
Kansas had an anti-miscegenation law from 1855-1859, but didn't appear on the census until 1860. At that time, however, it only had a 0.6% black population. Afterwards, its black population was somewhat larger--between three and four percent from 1890 to 1950. It didn't exceed four percent until 1960, and five percent until 1980. It, too, had a barely-noticeable proportion of Native Americans, at 0.1% of the total from 1880-1950.
Pennsylvania also had an anti-miscegenation law, one of the early adopters, but was also the first to repeal, back in 1780. By 1790, it only had 2.4% black population, and 36.4% of that were slaves. Pennsylvania's black population remained below 3% of the total until 1920, and below 5% until 1950.
States that had anti-miscegenation laws, but repealed them pre-Perez
These states include: Illinois (repealed in 1874), Iowa (1851), Maine (1883), Massachusetts (1843), Michigan (1883), New Mexico (1866), Ohio (1866), Rhode Island (1881), and Washington (1868).
Of these states, Iowa, Maine, and Washington had less than 1% black population; Maine was always less than half a percent. Iowa had no Native Americans or Asians; Maine no Asians, but 0.1-0.2% Native Americans. Washington actually had a statistically noticeable population of both--meaning that it was larger than 0.1%, but after 1890 neither rose above 2% of the total.
Massachusetts and New Mexico had a black population of less than two percent throughout the lifetime of anti-miscegenation laws. Both had a few Asians, and New Mexico a substantial population of Native Americans, over five percent for every census except 1870.
Illinois had a somewhat large black population early on, but discounting slaves it barely reached 5% in 1810; after that, it was less than 1% for most of the rest of the antebellum period, and between 1 and 2% from 1870-1910. It didn't break 5% until 1950. Michigan had a similar experience: a little over 3% in 1800-1810, then less than or equal to 1% from 1830-1910. It, too, didn't break 5% until 1950. Rhode Island was similar, with the first two censuses showing a black population about 5%, though removing slaves and it only barely reaches 5%. Afterwards its black population shrank in relation to the total, so that by the time it repealed its anti-miscegenation statute it had only 2.3% blacks, a number which continued to drop.
Ohio's black population was historically very small, but consistently growing--it started out at 0.5% in 1800, and finally broke 5% in 1950, like Illinois and Michigan (though it came close at 4.9% in 1940).
States that repealed their laws post-Perez and pre-Loving
These states include: Arizona (1962), California (1948), Colorado (1957), Idaho (1959), Indiana (1965), Maryland (1967), Montana (1953), Nebraska (1963), Nevada (1959), North Dakota (1955), Oregon (1951), South Dakota (1957), Utah (1963), and Wyoming (1965).
Of these states Idaho, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, and Utah all had less than 1% black population for most, if not all, of the lifetime of anti-miscegenation statutes. Some of them had significant populations of other races, though: Idaho had significant numbers of Asians 1870-1880, which quickly dropped off; Montana had around 3-4% Native American population most of its life; Nevada had a large Native American population 1880-1940, and of Asians 1870-1890, though that quickly dropped; Oregon had around 3% Asians from 1870-1900; and South Dakota around 3% Native Americans from 1910-1960. Note, however, that most of these states with a semi-significant percentage of Native Americans didn't have anti-miscegenation laws that prevented marriage of whites and Native Americans; and even if the percentage of Native Americans was higher than that of Asians (or even blacks), there may have been a prohibition against marrying Asians but not Native Americans.
Arizona, California, Colorado, Indiana, and Wyoming all had a fairly low black population; they never exceeded five percent until 1950 or 1960. Arizona, however, had a large Native American population--larger, and in most instances much larger, than both black and Asian population. Yet Native Americans were once again excluded from the law while blacks and Asians were targeted. Also, California had a substantial Asian population, for a long while around 3 times as large as its black population, and its anti-miscegenation law definitely targeted them.
The last of these states, Maryland, was the last state to voluntarily repeal its legislation, and only barely before Loving v. Virginia was decided. Historically a Southern state, and the first state to pass anti-miscegenation legislation, it historically had a very large black population. In the antebellum period, its black population generally ranged from 30-35% of the total, though the majority were slaves. That number did begin to shrink, but it never dropped below 16%, around twice as much as that of any of the previous states' highest percentages.
States that kept their anti-miscegenation laws until Loving
These states constitute a solid geographical block: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia.
These states naturally had some of the largest black populations, with percentages that dwarf any of the other states (besides Maryland); but their populations also dropped a lot over time. Alabama never dropped below 25%, and most of the time was above 30% and even 40%; Arkansas only dropped below 20% in 1970, and for most of the rest of the time was above 25%; Delaware had a large population in slavery, around 20-25% (most of them free after 1790), but in the post-bellum period it generally teetered between 13-17%; Florida had a large number of slaves, but after abolition its black population dropped, though never below 15%, and most of the time over 20%.
Georgia, like Alabama, never dropped below 25%, and was above 33% most of the time; Louisiana never dropped below 30%, and for most of the time was higher; Mississippi never dropped below 40%, and was for a long while above 50% black. North Carolina was always at least 1/5 black, and for the vast majority of the time, 1/4. South Carolina eventually dropped to 30% in 1970, but historically was 40% black or higher. Texas was over 10% the entire time, and for most of it over 15%; for Tennessee, it was over 15% the entire time and for most of that over 20%. Virginia only dropped below 20% in 1970.
Then there were some states that didn't have black populations that much larger than some of the other states. Kentucky's was, historically, fairly high--it was always above 13% from 1790-1910, and its lowest is 6.9%, larger than most of the other states that repealed, or never had, anti-miscegenation laws. Oklahoma was pretty consistently at 7% black population, but also with around 3% Native American (though it, too, did not prohibit whites from marrying Native Americans). Missouri had a large number of slaves in the antebellum period, but afterwards was around 5-7% for 1870-1950, give or take. West Virginia had the smallest black population of the southern states, which hovered around 4-7% for most of the time, and reached a height of 12% during slavery... though 90% of them were slaves.
I'm gonna stop talking soon, I swear
So, what can we conclude? Honestly, not much. Clearly, the states that kept their laws the longest generally had the largest black populations, and were part of a solid geographical bloc. But there's no demographic reason I can see why Maryland decided at the last minute to give up its laws and not a state with a smaller population, like Kentucky. Also, a number of states that passed anti-miscegenation statutes had insignificant percentages of blacks, while some that never passed such legislation had relatively high numbers of blacks (compared to the other states). It seems evident that demographic information, alone, can't tell us that much. And my initial hypothesis doesn't seem to be supported by the evidence.
Census information taken from here, tables 15-65.
Dates of the repeal of anti-miscegenation laws was taken from here.
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