Dragging Alabama to the altar

Old habits - and laws, such as on interracial marriage - die hard in this Deep South state, writes Andrew Marshall

IN THE Deep South of the United States, things move more slowly. It has something to do with the heat, and something to do with history; there is little of the frenetic desire for change that characterises the North-East or the West. Sometimes it feels like a different country. Had the Civil War gone differently, it might have been, and some white Southerners like to think it still is.

Thus, a mere 22 years after the US Supreme Court decided that it was illegal to ban interracial marriages, the state of Alabama (motto: "We Defend Our Rights") will follow suit. At some point in the next two years, its constitution will finally be amended to remove a clause that forbids black and white to marry; probably.

The provision has not been enforceable since 12 June 1967 when Chief Justice Earl Warren delivered the Supreme Court's judgment in the fittingly titled case of Loving vs Virginia. Richard Loving had skipped over to the District of Columbia in June 1958 to marry his sweetheart, Mildred Jeter. She was black and he was white. When they returned, they were arrested and sentenced to a year's jail, as Virginia banned interracial marriage. The trial judge was lenient: if they left Virginia and did not return for 25 years, they they would not serve time.

His reasoning did not seem obtuse in the Virginia of the 1950s. "Almighty God created the races white, black, yellow, malay and red," the judge said. "He placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

Virginia was then one of 16 states that banned interracial marriage; now there is only one. The clause has been inoperative, unenforceable and illegal since 1967, but it remains there none the less, a ghost of a racist past in cold print. After 24 years in the state legislature, Alvin Holmes managed to get a bill passed to repeal the measure this year. Strangely, it emerged last week that legal technicalities will prevent its being implemented immediately. The state will not now vote on it in a referendum until November 2000, when it is expected to pass.

Though the law is not enforced, mixed-race couples still confront obstacles in rural areas. For example, Mr Holmes says: "A couple will go to the probate judge and he will say, we don't have any marriage licences."

Why has it taken this long to get rid of the law? "In a nutshell, it's racism," says Mr Holmes. It was in Alabama, after all, in Montgomery, the state capital, that Rosa Parks refused to give up her seat on the bus to a white person, triggering the end of segregation on the buses. In 1963 police turned dogs on Martin Luther King in Birmingham. Only two years before the court judgment on Loving, King led a march from Selma to Montgomery to protest against violent repression of a black voter registration drive. But things move slowly. Selma, which is 60 per cent black, got its first black police chief only two years ago.

Interracial sex is an obsession of racist movements the world over. South Africa had rigid laws forbidding "miscegenation". In the US it is a hugely controversial issue on both sides of the entrenched racial divide. Many black leaders see it as a betrayal, while right-wing whites regard it as the ultimate racial crime. It is unclear quite how widespread mixed marriages have become, although one recent US study found that marriages between blacks and whites had tripled from 1.7 per cent of all marriages in 1960 to 6 per cent in 1990. In 1993, an estimated 8.9 percent of black men who married in the US married whites, while 3.9 percent of black women married whites. In Britain, by contrast, a study by the Policy Studies Institute found that almost 50 per cent black men of Caribbean descent were married to or living as married with white women.

The right to marry across racial lines was hard fought in the US, and it relied, like many civil right advances, on a change of legal philosophy in Washington. The Warren court was willing to use the Constitution to break down state laws that were overtly racist, starting with its landmark 1954 decision that segregated schools were unconstitutional. This "judicial activism" was not popular then and it is not now. In the South, the federal government is still often viewed as an interfering, illegitimate dictatorship enforcing its liberal ideas, and the refusal to adapt the Constitution is in part a deliberate flouting of its authority. Mr Holmes had to fight to get Martin Luther King Day made a holiday in the state, which does not recognise federal holidays.

There is a thriving "states' rights" movement in the South which wants to reclaim the law from Washington. The current Supreme Court is on its side. A series of judgments last week exposed bitter divisions within the court. States "are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty," said Justice Anthony M Kennedy. "The principle that `no man is above the law' - which applies to the President ... as well as the lowliest public servant - should apply equally to the states," shot back Justice John Paul Stevens.

Still, there is progress of sorts. In 2000, when Americans complete their census forms, they will be allowed to tick more than one box to assert a multiracial identity. Who knows, perhaps Mr Holmes will even persuade Alabama to remove the measure that bans mixed-race schools, just 45 years late.

THE STATES THEY'RE IN: WHAT YOU CAN AND CAN'T GET AWAY WITH

THE BYWAYS of the US legal system contain some bizarre measures, but the most controversial are the laws that outlaw sodomy. These affect the homosexual community in particular, and they vary from state to state. In some states, oral and anal sex are a misdemeanour; in others they are a felony, while in most they are legal.

The Constitution would not permit the federal government to get involved in such matters as sexual legislation, while the states are free to do whatever they want as long as it is Constitutional. The Supreme Court has changed its mind over the years as to what the Constitution means. Until last year, for example, all forms of sodomy were illegal in Georgia. This included private, consensual oral or anal sex between heterosexuals or homosexuals. The Georgia Supreme Court finally struck down the law last year. "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity," said the state's Chief Justice.

The US Supreme Court had supported the 165-year-old law as recently as 1986. It ruled then that the US Constitution contained no defence of privacy for homosexuals. Although it outlawed heterosexual as well as homosexual sodomy, the law was used almost exclusively against the gay community.

Bans on private, consensual oral and anal sex still exist in 18 states. The US's homosexual community has also tried to use the case of Loving vs Virginia, which outlawed bans on interracial marriage, to support gay marriages. The Supreme Court argued at the time that the ban was contrary to the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution; homosexual activists argue that these should apply to them as well. The Supreme Court also said that marriage was one of the "basic civil rights of man".

The age of consent is also decided by states, not federally, so it varies in the US between 13 (in New Mexico) and 18 (in most states).

ANDREW MARSHALL