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Darryl Paulson: Never mix love and government

In 1868, Florida passed a law making it illegal for a “Negro man and a white woman … who are not married to each other … to habitually live in and occupy in the nighttime the same room.”

Violation of the law was a second-degree misdemeanor punishable by up to 60 days in jail and a $500 fine.   Florida also made it illegal for such individuals to marry.

The intent was not so much to prevent illegal cohabitation, as it was to prevent interracial sex and marriage. A majority of states passed similar laws.

The law was seldom enforced over the last half century. In 1979, Florida suspended the liquor license of a company after a half-dozen employees were found to have violated the law.

Between 2007 and 2011, nearly 700 couples were punished for violating the law, although the 2010 census estimated that 550,000 unmarried Floridians were living together.

In 1963, a black man and a white woman from Florida were sentenced to 30 days in jail for violating the law. The Florida courts upheld the conviction and the case was appealed to the U.S. Supreme Court.

The attorney for the couple, William T. Coleman, Jr., a prominent civil rights activist and later Cabinet appointee of President Gerald Ford, argued that the law was based on racial classifications and thus violated the Equal Protection Clause of the U.S. Constitution.

James G. Mahorner, Florida’s Attorney General, argued that the prevention of “illegitimate offspring” was the legislative aim, not the “inferiority” of blacks. “There is discrimination,” said Mahorner, “but it is not invidious.”

Justice Potter Stewart asked Mahorner a hypothetical question. What if a white woman had a son by a Negro man. The boy would be half black. “Would the statute apply?”

“I suppose it would,” replied Mahorner.

In other words, a white woman with a black son could not take care of him at night without violating the Florida law.

Since the Florida law was based on racial classification, it violated the 14th Amendment and the conviction was overturned in McLaughlin v. Florida (1964).

After 148 years, the Florida Legislature repealed the illegal cohabitation law. The vote was unanimous in the Senate and passed 112-5 in the House. Gov. Rick Scott signed the bill into law last week, leaving only Michigan and Mississippi with illegal cohabitation laws on the books.

Florida’s senior population, many of whom live together for financial or companionship reasons, no longer have to fear being arrested. In my view, government has no business looking under the sheets, unless the KKK is involved.

The last vestige of discrimination in the area of interracial sex and marriage was striking down the anti-miscegenation laws banning interracial marriages. At one point, the vast majority of states, including Florida, banned interracial marriage.

Richard Loving, a white man, and Mildred Jeter, part black and Indian, traveled to the District of Columbia to marry. Their home state of Virginia banned such marriages. When they returned to Virginia, they were arrested and sentenced to one year in jail. The sentence was suspended on condition they leave Virginia for 25 years and never return together.

They returned to Virginia five years later to visit Mrs. Loving’s mother and were promptly arrested for violating the terms of their sentence. They were ordered to serve their jail sentence. All of the Virginia courts upheld the conviction, so the Lovings appealed to the U. S. Supreme Court.

A unanimous Supreme Court, in Loving v. Virginia (1966), perhaps the most appropriately named Supreme Court case ever, struck down Virginia’s and all other states anti-miscegenation laws as a violation of the Equal Protection Clause of the 14th Amendment.

Governments could no longer use race as a factor in determining whom you could live with or whom you could marry.

***

Darryl Paulson is Professor Emeritus of Government at USF St. Petersburg.

Written By

Darryl Paulson is Emeritus Professor of Government at USF St. Petersburg.

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