16 June 2012

Barriers

'Crimes of Passion: The Regulation of Interracial Sex in Washington, 1855-1950' by Jason Gillmer in 47(2) Gonzaga Law Review (2012) 393-428 explores -
the regulation of interracial sex and marriage in the state of Washington from its time as a territory through the first half of the twentieth century. Drawing on local records rather than canonical cases, the Article's main thesis is that, although the criminal bans on the practice were short-lived, Washingtonians used legal mechanisms to discourage and penalize interracial families in much the same way. The result of these efforts may not have been prison time; but, lawyers and judges regularly used the law to ensure that wealth and property remained in the hands of whites rather than racial minorities. In doing so, the legal system became an effective deterrent to interracial relationships, perpetuating existing notions of race that privileged whiteness over other racial groups.
Gillmer concludes -
Sadly, the result in these cases was the rule not the exception. In an early case with strikingly similar facts to Irene’s, Charles Kelley sought to establish that he was the legitimate heir of Michael Kelley, a white man from Kitsap County who died in 1870. Charles’s mother was Julia, a Native American woman, and Charles was tasked with proving that Michael and Julia were husband and wife. The evidence suggested that Michael and Julia were married according to the custom outlined by Chief Wilson, Irene’s witness, and lived together for five years. But the court in 1893 was no more predisposed to recognize marriages between whites and Indians than it was forty years later. Derisively dismissing the money offered during the ceremony - “Michael Kelley obtained this woman by paying two or three dollars in silver to her sisters” - the court ruled that “[a]ll of the testimony in relation to these parties agreeing to live together” should never have been considered. “Such arrangements,” it held, “could hardly amount to marriages under any law.” 
Other cases reached similar results, with immediate family members - most often wives and children - from mixed marriages passed over by the courts, ensuring that property remained in the hands of the ever-important and ubiquitously-present white stakeholders.248 Perhaps more discouraging than the results, however, was the method by which courts assured racial dominance, drawing on notions that privileged whiteness over other racial groups. For example, the court labeled Susan Enos an “adventuress” for laying claim to her white husband’s estate, a designation that surely would never have been used to describe a white woman who lived with a man for nine years and had three children by him. Or consider the dispute over John Wilbur’s estate - possibly the only case where the court actually found that a marriage ceremony between a white man and a Native American woman had taken place. Still, it conveniently found that the ceremony, done according to Indian custom, occurred in 1867 while the criminal bans against interracial marriage were in effect. This allowed the court to conclude that the marriage was never valid. A subsequent effort to fix the date in 1868, coupled with evidence that the couple lived together for nine years, did nothing to nudge the court into recognizing the marriage. “They lived together, and had children born to them, and that was all,” it concluded with an air of mockery. Like Irene York, John’s wife and two children - all classed as Indians - took nothing, while his second wife, a white woman, inherited everything. 
Notably, the implications from these cases have snaked their way into more recent times. Indeed, following the decision in Harvey Creasman’s case, the court found itself in a troubling position. It was one thing to evict Harvey, a black man, from his home and deprive him of the many possessions purchased with his paychecks but in his wife’s name. It was quite another to turn away white persons who, after many years of living in “meretricious” relationships, unwittingly found themselves in Harvey’s position. Rather than deprive them of the property acquired during the relationship, the court spent the next four decades carving out carefully crafted exceptions to the “Creasman Presumption” to allow these white spouses and children to inherit what Harvey and Irene never did. 
In 1984, the court finally closed out this sad chapter in its history. In that year, the court overruled the Creasman decision, holding that courts should examine each “meretricious” relationship and disburse property as the court finds “just and equitable.” While this decision should appropriately be remembered as a positive step in the right direction, it is important to remember that for Irene York, Harvey Creasman, and countless others who courageously crossed the color line, the damage had already been done.