Love Jihad: A Present Day Variant Of The Anti-Miscegenation Laws

"Miscegenation" is defined as the interbreeding of people considered to be of different racial types. One of the earliest works advocating prohibition of miscegenation was published in 1850 in Philadelphia by Robert Knox titled 'Races of Men'. He repudiated the idea of any amalgamation of races and declared that the mulatto was 'a monstrosity of nature'. Jean-Louis Rodolphe Agassize, an influential Harvard professor in 1863, deposed against miscegenation before the Lincoln government's Friedman Enquiry Commission:

'the production of half breeds is sin enough against nature, as incest in a civilised community is a sin against purity of character… No effort should be spared to check that which is important to our better nature, and to the progress of the higher civilisation and the purer morality.'

This pseudoscience, had many sophisticated academics justifying its spurious theories. This ultimately led to legislations in many parts of the world criminalizing interracial marriages and sex between members of different races. In North America laws were created to prevent inter-marriage, initially those between whites and negroids. These laws were amended to extend them to include Asian Indians, Chinese, Japanese, Koreans Filipinos, Mongolians and Malays, depending on patterns of immigration. Interracial marriage was made a punishable offence first in Virginia. In a century after the foundation of the United States, 38 states banned interracial marriages.

These laws were implemented with rigor and ferocity in the parts of present day South Africa's racist outposts of the Boer Republic of Transvaal (1897), Cape Colony (1902), Natal and Orange Free State (1903) and subsequently institutionalized under the apartheid regime.

HISTORY OF ANTI MISCENIGATION LAWS IN NAZI GERMANY

Europe, in particular Germany, had a history of untested intellectual justification against miscegenation. Essay 'On the Inequality of Human Races' was published by Arthur de Gobineau sometime in 1853. These scientifically unsubstantiated writings were paraded as 'scientific racism' and even 'racial hygiene' and had adherents as celebrated as the western classical composer Richard Wagner. The first of the works which called for the pogrom of the Jews was written by the German orientalist Paul de Lagarde in his 1887 essay "Jews and Indo-Germanics" which characterized Jews as 'trachinae and bacilli' and called for their 'annihilation' by means of 'surgical intervention and medication'. By 1899, the anti-Semitic German Social Reform Party now began to advocate to resolve the Jewish question, if necessary, by the 'annihilation of the Jewish people'.

NUREMBERG LAWS

In Germany which did not have a perceptible negroid population given the absence of any colonies, the prejudice was vented against Jews. A key part of Nazi ideology was the propagation of the myth that Germans were of the Aryan race and the Jews through inter-marriage and sexual relations posed a threat to the purity of the 'Aryan' race.

In September 1935 the Nuremberg Laws were signed by Hitler and several other Nazi officials which became the cornerstone of the legalized persecution of Jews in Germany. The first one called the 'Law For the Protection of German Blood and German Honour' which banned marriage between Jews and non-Jewish Germans. It also prohibited relations outside marriage between Jews and Germans. It even barred the Jews from employing German women under the age of 45 for housework.

The second enactment, 'The Reich Citizenship Law' defined that only individuals of German or kindred blood' could be citizens of Germany. The Jews, were defined not as a religion, but as a race. Since there was no scientifically valid basis to define Jews as a race, Nazi legislators looked to the family genealogy to define race. A Jew was anyone with 3 or more Jewish born grandparents, and included those who converted to Christianity.

This photograph is in the official SS report on the April-May 1943 German police arresting Jewish women and children in Warsaw.

The Nuremberg Laws barbarically affected the daily lives of all Jews in Germany and Nazi occupied territories at the most basic and intimate of levels. These laws were a crucial step in Nazi racial laws that led to the marginalization of and ultimately to their segregation, incarceration and the extermination of 6 million Jews across Europe.

US SUPREME COURT SRIKES DOWN ANTI MISCEGENATON LAW OF VIRGINIA

In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. At the time there were 16 states of the United States which had not repealed their anti-miscegenation laws The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's anti-miscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years). On appeal, the Supreme Court of Appeals of Virginia upheld the decision and ruled that the state had an interest in preserving the "racial integrity" of its constituents.

Legendary Earl Warren Court which unanimously struck down the Virginia anti-miscegenation law

Milred Loving wrote desperately to President John F.Kennedy who referred them to the American Civil Liberties Union. Bernard Cohen and Philip Hirschkop two young lawyers of the ACLU took up their case to the US Supreme Court. The United States Supreme Court headed by the legendary Chief Justice Earl Warren in a unanimous verdict, reversed the Virginia Appeal Court's ruling. It held that the Equal Protection Clause of the 14^th Amendment of the US Constitution required strict scrutiny to apply to all race-based classifications. Furthermore, the Court cited the Due Process Clause and concluded that the law was rooted in invidious racial discrimination. 'Under our Constitution', wrote Chief Justice Earl Warren, 'the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.' The Loving decision still stands as a significant milestone in the delegitimizing cruel racial laws. With the declaration of the Virginia's anti-miscegenation law as unconstitutional, the Supreme Court ended prohibitions on interracial marriage.

CONSTITUTIONALITY OF THE LOVE JIHAD LAWS

The spate of legislations being referred to as "love jihad" laws is nothing but an extension of the racist and faith-based discriminatory anti-miscegenation laws. These laws are built on a hybrid of religious prejudice couched in a politically expedient unproven conspiracy. As the Supreme Court of India waits to test these 'love jihad' laws many Indian multi-faith couples are being made to face the humiliating cruelty of our criminal administration system by their arrest and consequent incarceration in police and subsequently judicial custody, often destroying their ties with their families and society, their vocations, their educational pursuits, and in effect their lives.

In this dark and bleak age of this unresolved constitutional imbroglio, the Allahabad High Court consisting of a bench of Justice Pankaj Naqviand Justice Vivek Agarwal intervened in a habeas corpus petition reunited a 21 year old Hindu lady married to Muslim man on the rationale that she 'has a choice to live her life on her own terms'. The very same Bench stayed the arrest of a man booked under the Prohibition of Unlawful Conversion of Religion Ordinance 2020. This welcome judicial trajectory will be a marker that we are still living under a free Constitution and an independent judiciary, so unlike the German judiciary, which remained a mute spectator throughout the implementation of the racist anti-miscegenation laws of Nuremberg from 1933 till the end of the Nazi regime in May 1945.

Views are personal.

(Author is a Senior Advocate at the Supereme Court of India)