State v. Bell and Changes to Marriage

Bob Herbert’s New York Times column cites to an 1872 Tennessee case that upheld a law prohibiting interracial marriage. See State v. Bell, 66 Tenn. 9. The Tennessee Court wrote that:

Extending the rule to the width asked for by the defendant, and we might have in Tennessee the father living with his daughter, the son with the mother, the brother with the sister, in lawful wedlock, because they had formed such relations in a State or country where they were not prohibited. The Turk or Mohammedan, with his numerous wives, may establish his harem at the doors of the capitol, and we are without remedy.

The Court, of course, was wrong. Interracial marriage statutes were held unconstitutional in Loving v. Virginia in 1967, and none of the parade-of-horribles scenarios has come to pass in the forty years since. The difference between the threatened result in that case and the actual result when Loving was decided is instructive.

The court believed that removal of one boundary line in a social institution would necessarily result in the removal of all boundary lines — any change would “open the floodgates” for awful scenarios. In fact, however, the parade of horribles never came to pass. Society was perfectly capable of drawing and maintaining new boundary lines, even after removal of interracial marriage prohibitions. That capability means that the results of changes to social institutions may be much less catastrophic than detractors predict.

17 comments for “State v. Bell and Changes to Marriage

  1. Ady Hahn
    March 5, 2004 at 10:32 pm

    Funny how none of the “awful scenarios” includes homosexual marriage. I guess back then, folks couldn’t even conceive of such a thing.

  2. March 5, 2004 at 11:05 pm

    One more comment. I’m not sure if you’re implying that fears of the majority of Americans regarding legalization of gay marriage are analogous to those society had regarding interracial marriage. Is that what you’re implying? If so, your analogy is faulty because interracial marriage had been practiced for thousands of years before this case and it still involved union of a man and a woman. Legalizing gay marriage involves changing the whole traditional, religious, and cultural definition of marriage. It’s never been practiced by any society before, so I disagree that tinkering with the definition to include same-sex marriage won’t have dramatic consequences in the future.

  3. Matt Evans
    March 6, 2004 at 12:59 am

    Nice comments, Ady, I think you’re right.

    Ted Kennedy voted against the 1991 Persian Gulf war because he feared all kinds of terrible consequences would follow. By Herbert’s thinking Ted’s statements should have been an arrow in the administration’s quiver in 2003 against every argument that said the risks of going to war against Iraq are too great and uncertain. It makes sense to use such comments to challenge the reliability of the person who made them, but not as an argument that there is no slippery slope.

  4. March 6, 2004 at 1:42 am

    I’m inclined to agree with Ady on this. Race is a social construct, something that, biologically speaking, has limited use. Sex, on the other hand, is a perfectly valid differentiator (sic?).
    At one time, the Irish were considered a seperate ‘race’ in the U.S. That’s no longer the case. I’m confident that as more children of multi-racial couples are born, the importance of those differences will fade away.

  5. Kaimi
    March 6, 2004 at 1:53 am


    1. Of course this relates to the gay marriage debate. However, I’m trying to keep the scope of this post narrow. In Bell, the Court said “you can’t tinker with marriage boundaries or next thing you know, we’ll have to allow legal incest.” Boundaries were tinkered with, and the feared result did not occur. This data point may have some bearing on whether such arguments are considered more or less persuasive in the gay marriage context. It may make certain objections — “if we allow gay marriage, we’ll have to allow group marriage too!” — look less convincing.

    2. There may also be reasons, as Ady points out, why this data point should not be viewed as indicative of likely results of legalizing gay marriage. However, I’m not particularly convinced of Ady’s point as stated — I think that the modern concept of marriage is a creature of the past few centuries only, and has only a superficial resemblence to early, tribal conceptions of marriage.

  6. Kaimi
    March 6, 2004 at 1:59 am


    I think that it is one piece of evidence that the slope isn’t as slippery as people sometimes seem to believe it is. Society moved just fine from Position A (no interracial marriage) to Position B (interracial marriage allowed) without tumbling headlong into the scenarios envisioned by the Tennessee judges.

    At the very least, it’s pretty firm evidence of an important truth: Not all slopes are slippery.

  7. lyle
    March 6, 2004 at 3:22 am


    ok…so it’s narrow, and the fear didn’t prove itself true last time. that doesn’t mean it won’t this time…

    also, so much for lawrence not applying to this issue, eh? SCOTUS tried to limit it, even as it ltd Bush v. Gore…to NO effect.

  8. Matt Evans
    March 6, 2004 at 9:18 am


    Your use of Loving v Virginia as precedence for gay marriage vindicates the slippery slope argument. The Tennessee judges weren’t wrong in predicting the slippery slope, just its direction. If they had included gay marriage in their parade of horribles, Herbert wouldn’t have put the quote in his column. It’s another example of cherry-picking. (Note that I oppose laws against interracial marriage, and am speaking only to the slippery slope argument).

  9. March 6, 2004 at 10:40 am

    Kaimi, let me first say again that I don’t understand why you are continually defending the pro-same-sex marriage position. That said, I agree with Ady that the analogy is not proper because interracial marriage does not change the nature of marriage, marriage being the union of man and woman. Also, I think it irrelevant whether the slippery slope ever does come to fruition. The fact is that based on the SSM proponents arguments, many other groups could make a claim for marriage rights–and they could not be denied with any rational consistency. We don’t need an alternate parade of horribles when the horrible we oppose is same-sex marriage. The slippery slope exists because of the unique arguments being put forward by SSM proponents which changes the fundamental meaning and purpose of marriage.

  10. Kaimi
    March 6, 2004 at 12:01 pm

    Brent, Matt, et al

    Some articles have relied strongly on slippery slope. Probably the most reliant is Stanley Kurtz’s Weekly Standard piece. To quote:

    “Among the likeliest effects of gay marriage is to take us down a slippery slope to legalized polygamy and “polyamory” (group marriage). Marriage will be transformed into a variety of relationship contracts, linking two, three, or more individuals (however weakly and temporarily) in every conceivable combination of male and female.”



    The operation of a slippery slope from Loving to Goodridge is far from clear. Goodridge certainly relies on prior cases, including Loving v. Virginia. However, Goodridge relies on a completely different authority in finding the right it does (the state constitution). No federal court (or state court, I believe) has said “Loving v. Virginia struck down interracial marriage laws under the U.S. Constitution, and so gay marriage must be allowed under the U.S. Constitution.”

  11. March 6, 2004 at 12:32 pm

    Modern marriage differs in many ways from earlier incarnations. In particular, modern marriage is conceived as monogamous. Further, there have been societies where homosexuality was deeply institutionalized and considered an appropriate means of interaction. That’s not to say that this makes homosexuality normal or natural, but let’s not fall into the nostalgic trap that this is the first time “marriage” has ever deviated from some universal standard or that homosexuality has ever existed on a large-scale.

    For an interesting commentary similar to Kaimi’s see Kieran’s comparison of the legalization of divorce in Ireland.

  12. March 8, 2004 at 10:19 pm

    If the criteria for marriage becomes simply about who you choose to enter into this relationship with (for love or money or whatever), then it most certainly is a slippery slope if gay marriage is approved. You can bet there’s people in southern Utah watching this debate very closely.

    Gay marriage wipes out all criteria except commitmnet. Ergo, any commitment is valid.

  13. Adam Greenwood
    March 9, 2004 at 11:17 am

    This would be a lot more comforting if your or any other gay marriage advocate could justify gay marriage in a way that didn’t justify the rest of the slippery slope. I agree with Geoff that race is peripheral and sex isn’t. You and other GMA’s seem to be saying that sexual orientation is also inherent the way sex is and deserves equivalent legal recognition. So what makes incest, polygamy, pedophilia, etc., not sexual orientations?

    Your argument makes no sense. Ady points out that no society anywhere has ever treated homosexual relations as the equivalent of a marriage. You respond that these societies didn’t have our exact same marriage structure and that they didn’t always *scorn* homosexuality. So what? Neither weakens Ady’s point. In a way, they both strengthen it. Historical experience shows a variety of marriage arrangments–none of them have included gay marriage. Historical experience shows a number of cultures that embraced homosexuality in one way or another–none of these cultures even were willing to treat homosexual unions as marriages.

  14. March 11, 2004 at 11:20 pm

    While I am not really in favor of gay marriages, I heard a point made on NPR today that was interesting. The discussion was about whether or not it was likely that a constitution amendment could get passed defining marriage as between a man and a woman. The commentator’s final thought was that if it did come to pass, it would be ironic that a monogamous commitment between 2 people of any gender could be illegal but sleeping indiscriminently with anyone would be perfectly legal.

  15. Steve Evans
    March 11, 2004 at 11:34 pm

    Renee, I don’t think anyone here is talking about making gay marriage legal – rather, it’s about creating an institution. Gay marriage isn’t currently ILLEGAL, it just doesn’t exist as of yet in the eyes of the state. What’s illegal are local authorities performing ceremonies to forge institutions that don’t yet exist.

  16. Moe Levine
    March 12, 2004 at 1:24 am

    my 2 cents is that gays/lesbians would not be so bold about such a self-centered agenda, but for Rush and the rest of the vast right wing conspiracy that preaches greed and selfishness, 24/7

    before Rush, there was a pretty universal understanding that traditional families with children needed the protection (incentives, etc.) of the state

    mostly, I believe, the current waive of gay/lesbian marriages is no more or less than an attempt to take advantage of recent changes in the tax laws eliminating the marriage penalty, etc.

    regardless, GWB is not going to permit any reall discussion of the issue. He’s down the tubes, politically, w/o a culture war, so rather than common sense discussion we are going to have moral posturing.

  17. Ady Hahn
    March 13, 2004 at 4:40 pm


    You’re blaming this whole mess on Rush and the VRWC? Incredible. Consevatives are usually the ones that speak out for traditional moral values. Before Rush, the divorce rate had already peaked at 50%. You’re right about greed being the source of this problem. It’s greed and selfishness that causes people to demands rights and priviledges without thinking of the ramifications on the rest of society.

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