"'They Call it Marriage': the Interracial Louisiana Family and the Making of American Legitimacy"
"They Call it Marriage" examines interracial marriage between black women and white men in nineteenth-century Louisiana. It explores how broad political and social struggles affected the ways white men and black women related to each other. And it considers why mid-nineteenth-century Louisiana was such an important setting for national struggles over race, gender, legitimacy, and power.
After the Civil War, Louisiana authorities repealed the interracial marriage prohibition and permitted retroactive legitimation of "private religious" marriages. In doing so, they exposed an obscure past in which many had refused to submit to the law as authoritatively given. Some people laid claim to the language of legitimate matrimony in defiance of state law, demanding justice on their own terms and with a keen awareness of competing regional, religious, and civil jurisdictions. In highlighting the perspective of those outside the legal profession, I focus on law as a terrain of struggle rather than a fixed set of rules.
The use of interracial marriage laws to regulate the inheritance of both property and social status dated back to Louisiana's earliest French colonial government. Mandating that mixed-race children inherit the status of their (black) mother only, these regulations established the parameters of enslaved and racialized populations. Because legal kinship affected titles to household property in Louisiana, these laws encouraged distant kin and creditors to monitor interracial families' internal affairs.
Black women and white men, whose relationships were thus both outside the law and subjected to constant scrutiny, often went to great lengths to attain, preserve, and escape marriage to each other. Situating these struggles amidst questions over whether American society was to be organized along lines of status or contract, "They Call it Marriage" explores the dialectic between marriage as a gendered form of bondage and as a symbol of the exercise of free will and individual autonomy.
The disputed illegitimate past of Louisiana interracial families had significance beyond the state's borders. This manuscript traces the rhetoric of interracial genealogy and racial indeterminacy in antecedents of Plessy v. Ferguson. Louisiana authorities' persistence in invoking racial fluidity well into the 1890s complicates historians' efforts to locate a transition point at which the region exchanged a fluid Latin racial system for a strictly binary American one. In this regard, "They Call it Marriage" explores the gendered history of private life in order to offer a means of reconsidering the nature of Jim Crow segregation.
1. Licensing Marriage in Early Louisiana
This chapter covers Louisiana's French, Spanish, and early American periods of rule. I situate the regulation of interracial marriage in early Louisiana among debates over the problem of defining a valid union. After the Louisiana Purchase, the nature of state power changed from absolutism to republicanism, inhibiting efforts to police marriage. Previously, several different legal entities—parents, notaries, church, state, and community—had claimed this regulatory authority, complicating any effort at restrictions. As the state increasingly appropriated the authority to license, witness, or (dis)approve of marriage, American couples developed a sense of entitlement to privacy in marriage that led them to resist outside interference.
2. "Religion Law" vs. Civil Law
This chapter focuses on jurisdictional conflicts between ecclesiastical and state authorities resulting from a schism among New Orleans Catholics in the 1840s. During this schism, Black Creoles argued that the state should end its unjust prohibition on interracial marriage because women of color needed legal protection in their relationships with white men. Their experience as ultramontane Catholics equally subordinate to papal authority enabled them to argue that the nation's republican rhetoric of consent and contract sustained unequal relations between white men and others.
3. Quadroon Balls, Plaçage, and Consensus Narratives
This chapter focuses on published antebellum accounts of interracial courtship and concubinage. These accounts contributed to a consensus view with two elements: first, that Louisiana women of color sought to elevate their social, racial, and economic status through sexual relationships with white men, and second, that race mixing was a national anomaly and an element of Louisiana's exotic appeal. In fact, the political economy of race and gender gave white men unfettered access to black women's bodies through slavery, domestic servitude, prostitution, and concubinage. By raising questions of agency and coercion, I interrogate the ways these sources invoked black women's consent.
4. Concubinage and Legal Narratives
To further interrogate the narratives discussed in Chapter Three, this chapter investigates legal accounts of interracial relationships between black women and white men, focusing on the regulation of concubinage in Louisiana civil law. It begins by examining litigation over the validity of an interracial Louisiana couple's Mississippi marriage. It then explores a broad range of litigation concerning property transfers from white men to their domestic servants. Though courts presumed that white wives were legitimate and white domestics deserved protection from sexual harassment on the job, they often classed a black woman in comparable circumstances as a concubine, subjecting her to economic penalties.
5. Forced Heirs and Family Drama
This chapter focuses on the social and legal construction of legitimate kinship through an analysis of conflicts in probate courts concerning wills and paternity. Post-Revolutionary Anglo-American laws protected the freedom to pass on property as one wished—even if doing so might favor illegitimate children. But Louisiana courts drew on older European principles that privileged legitimate kinship and penalized illegitimacy, thus empowering judges to annul testators' wishes. Anticipating that their wishes would be thwarted, white fathers strategically avoided expressing them in their wills or publicly acknowledging their paternity. This forced petitioners with designs on their property to offer anecdotes about fatherly affection in a mercenary effort to overturn those bequests. The result was a body of misleading narratives and counter-claims that deserve skeptical analysis.
6. Interracial Marriage and the Law in Post-emancipation Louisiana
This chapter focuses on a paradox in postwar Louisiana: interracial marriage was a hugely controversial rhetorical device in the context of debates over black emancipation and citizenship, but once legalized in the 1860s, it rarely elicited significant public attention apart from literary sources. While some couples took advantage of the change in the law to formalize their unions, many remained closeted. Indeed many white men continued to demand extramarital sex from black women. Meanwhile, a new cluster of novels by white southern women helped change the political climate, leading the Louisiana legislature to reinstate the ban in 1894. These novels re-told miscegenation plots with a new twist: instead of concerning themselves with the clichéd plight of the tragic mulatto, they focused on the threat such women posed to white women.
7. "Bastards Begat by their Masters"
Questions of illegitimacy informed the post-emancipation debate over civil rights and segregation. This chapter connects the history of interracial marriage in Louisiana to the more familiar political narrative of Reconstruction and the New South by discussing local Reconstruction-era antecedents of the 1896 U.S. Supreme Court case Plessy v. Ferguson. I argue that opponents of civil rights bolstered Jim Crow segregation by invoking a genealogical narrative of black illegitimacy. Designed to recover the orderly vision of legal authority disrupted by war, this narrative rebuilt a national consensus concerning the logic of racial distinctions.
