Case Name: LOVING V. VIRGINIA 388 U.S. 1
NO. 395. ARGUED APRIL 10, 1967. - DECIDED JUNE 12, 1967. - 206 VA.
924, 147 S.E.2D 78, REVERSED.
VIRGINIA'S STATUTORY SCHEME TO PREVENT MARRIAGES BETWEEN PERSONS
SOLELY ON THE BASIS OF RACIAL CLASSIFICATIONS HELD TO VIOLATE THE EQUAL
PROTECTION AND DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT. PP. 4
12.
LOVING ET UX. V. VIRGINIA.
APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA.
MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT.
THIS CASE PRESENTS A CONSTITUTIONAL QUESTION NEVER ADDRESSED BY THIS
COURT: WHETHER A STATUTORY SCHEME ADOPTED BY THE STATE OF VIRGINIA TO
PREVENT MARRIAGES BETWEEN PERSONS SOLELY ON THE BASIS OF RACIAL
CLASSIFICATIONS VIOLATES THE EQUAL PROTECTION AND DUE PROCESS CLAUSES
OF THE FOURTEENTH AMENDMENT. (FN1) FOR REASONS WHICH SEEM TO US TO
REFLECT THE CENTRAL MEANING OF THOE CONSTITUTIONAL COMMANDS, WE
CONCLUDE THAT THESE STATUTES CANNOT STAND CONSISTENTLY WITH THE
FOURTEENTH AMENDMENT.
IN JUNE 1958, TWO RESIDENTS OF VIRGINIA, MILDRED JETER, A NEGRO
WOMAN, AND RICHARD LOVING, A WHITE MAN, WERE MARRIED IN THE DISTRICT OF
COLUMBIA PURSUANT TO ITS LAWS. SHORTLY AFTER THEIR MARRIAGE, THE
LOVINGS RETURNED TO VIRGINIA AND ESTABLISHED THEIR MARITAL ABODE IN
CAROLINE COUNTY. AT THE OCTOBER TERM, 1958, OF THE CIRCUIT COURT OF
CAROLINE COUNTY, A GRAND JURY ISSUED AN INDICTMENT CHARGING THE LOVINGS
WITH VIOLATING VIRGINIA'S BAN ON INTERRACIAL MARRIAGES. ON JANUARY 6,
1959, THE LOVINGS PLEADED GUILTY TO THE CHARGE AND WERE SENTENCED TO
ONE YEAR IN JAIL; HOWEVER, THE TRIAL JUDGE SUSPENDED THE SENTENCE FOR A
PERIOD OF 25 YEARS ON THE CONDITION THAT THE LOVINGS LEAVE THE STATE
AND NOT RETURN TO VIRGINIA TOGETHER FOR 25 YEARS. HE STATED IN AN
OPINION THAT:
"ALMIGHTY GOD CREATED THE RACES WHITE, BLACK, YELLOW, MALAY AND RED,
AND 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."
AFTER THEIR CONVICTIONS, THE LOVINGS TOOK UP RESIDENCE IN THE
DISTRICT OF COLUMBIA. ON NOVEMBER 6, 1963, THEY FILED A MOTION IN THE
STATE TRIAL COURT TO VACATE THE JUDGMENT AND SET ASIDE THE SENTENCE ON
THE GROUND THAT THE STATUTES WHICH THEY HAD VIOLATED WERE REPUGNANT TO
THE FOURTEENTH AMENDMENT. THE MOTION NOT HAVING BEEN DECIDED BY
OCTOBER 28, 1964, THE LOVINGS INSTITUTED A CLASS ACTION IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA REQUESTING
THAT A THREE-JUDGE COURT BE CONVENED TO DECLARE THE VIRGINIA
ANTIMISCEGENATION STATUTES UNCONSTITUTIONAL AND TO ENJOIN STATE
OFFICIALS FROM ENFORCING THEIR CONVICTIONS. ON JANUARY 22, 1965, THE
STATE TRIAL JUDGE DENIED THE MOTION TO VACATE THE SENTENCES, AND THE
LOVINGS PERFECTE AN APPEAL TO THE SUPREME COURT OF APPEALS OF
VIRGINIA. ON FEBRUARY 11, 1965, THE THREE-JUDGE DISTRICT COURT
CONTINUED THE CASE TO ALLOW THE LOVINGS TO PRESENT THEIR CONSTITUTIONAL
CLAIMS TO THE HIGHEST STATE COURT.
THE SUPREME COURT OF APPEALS UPHELD THE CONSTITUTIONALITY OF THE
ANTIMISCEGENATION STATUTES AND, AFTER MODIFYING THE SENTENCE, AFFIRMED
THE CONVICTIONS. (FN2) THE LOVINGS APPEALED THIS DECISION, AND WE
NOTED PROBABLE JURISDICTION ON DECEMBER 12, 1966, 385 U.S. 986.
THE TWO STATUTES UNDER WHICH APPELLANTS WERE CONVICTED AND SENTENCED
ARE PART OF A COMPREHENSIVE STATUTORY SCHEME AIMED AT PROHIBITING AND
PUNISHING INTERRACIAL MARRIAGES. THE LOVINGS WERE CONVICTED OF
VIOLATING SEC 20-58 OF THE VIRGINIA CODE:
"LEAVING STATE TO EVADE LAW. - IF ANY WHITE PERSON AND COLORED
PERSON SHALL GO OUT OF THIS STATE, FOR THE PURPOSE OF BEING MARRIED,
AND WITH THE INTENTION OF RETURNING, AND BE MARRIED OUT OF IT, AND
AFTERWARDS RETURN TO AND RESIDE IN IT, COHABITING AS MAN AND WIFE, THEY
SHALL BE PUNISHED AS PROVIDED IN SEC 20-59, AND THE MARRIAGE SHALL BE
GOVERNED BY THE SAME LAW AS IF IT HAD BEEN SOLEMNIZED IN THIS STATE.
THE FACT OF THEIR COHABITATION HERE AS MAN AND WIFE SHALL BE EVIDENCE
OF THEIR MARRIAGE."
"PUNISHMENT FOR MARRIAGE. - IF ANY WHITE PERSON INTERMARRY WITH A
COLORED PERSON, OR ANY COLORED PERSON INTERMARRY WITH A WHITE PERSON,
HE SHALL BE GUILTY OF A FELONY AND SHALL BE PUNISHED BY CONFINEMENT IN
THE PENITENTIARY FOR NOT LESS THAN ONE NOR MORE THAN FIVE YEARS."
OTHER CENTRAL PROVISIONS IN THE VIRGINIA STATUTORY SCHEME ARE SEC 20
57, WHICH AUTOMATICALLY VOIDS ALL MARRIAGES BETWEEN "A WHITE PERSON AND
A COLORED PERSON" WITHOUT ANY JUDICIAL PROCEEDING, (FN3) AND SECS 20-54
AND 1-14 WHICH, RESPECTIVELY, DEFINE "WHITE PERSONS" AND "COLORED
PERSONS AND INDIANS" FOR PURPOSES OF THE STATUTORY PROHIBITIONS. (FN4)
THE LOVINGS HAVE NEVER DISPUTED IN THE COURSE OF THIS LITIGATION THAT
MRS. LOVING IS A "COLORED PERSON" OR THAT MR. LOVING IS A "WHITE
PERSON" WITHIN THE MEANINGS GIVEN THOSE TERMS BY THE VIRGINIA
STATUTES.
VIRGINIA IS NOW ONE OF 16 STATES WHICH PROHIBIT AND PUNISH MARRIAGES
ON THE BASIS OF RACIAL CLASSIFICATIONS. (FN5) PENALTIES FOR
MISCEGENATION AROSE AS AN INCIDENT TO SLAVERY AND HAVE BEEN COMMON IN
VIRGINIA SINCE THE COLONIAL PERIOD. (FN6) THE PRESENT STATUTORY
SCHEME DATES FROM THE ADOPTION OF THE RACIAL INTEGRITY ACT OF 1924,
PASSED DURING THE PERIOD OF EXTREME NATIVISM WHICH FOLLOWED THE END OF
THE FIRST WORLD WAR. THE CENTRAL FEATURES OF THIS ACT, AND CURRENT
VIRGINIA LAW, ARE THE ABSOLUTE PROHIBITION OF A "WHITE PERSON" MARRYING
OTHER THAN ANOTHER "WHITE PERSON," (FN7) A PROHIBITION AGAINST ISSUING
MARRIAGE LICENSES UNTIL THE ISSUING OFFICIAL IS SATISFIED THAT THE
APPLICANTS' STATEMENTS AS TO THEIR RACE ARE CORRECT, (FN8) CERTIFICATES
OF "RACIAL COMPOSITION" TO BE KEPT BY BOTH LOCAL AND STATE REGISTRARS,
(FN9) AND THE CARRYING FORWARD OF EARLIER PROHIBITIONS AGAINST RACIAL
INTERMARRIAGE. (FN10)
I.
IN UPHOLDING THE CONSTITUTIONALITY OF THESE PROVISIONS IN THE
DECISION BELOW, THE SUPREME COURT OF APPEALS OF VIRGINIA REFERRED TO
ITS 1955 DECISION IN NAIM V. NAIM, 197 VA. 80, 87 S.E.2D 749, AS
STATING THE REASONS SUPPORTING THE VALIDITY OF THESE LAWS. IN NAIM,
THE STATE COURT CONCLUDED THAT THE STATE'S LEGITIMATE PURPOSES WERE "TO
PRESERVE THE RACIAL INTEGRITY OF ITS CITIZENS," AND TO PREVENT "THE
CORRUPTION OF BLOOD," "A MONGREL BREED OF CITIZENS," AND "THE
OBLITERATION OF RACIAL PRIDE," OBVIOUSLY AN ENDORSEMENT OF THE DOCTRINE
OF WHITE SUPREMACY. ID., AT 90, 87 S.E.2D, AT 756. THE COURT ALSO
REASONED THAT MARRIAGE HAS TRADITIONALLY BEEN SUBJECT TO STATE
REGULATION WITHOUT FEDERAL INTERVENTION, AND, CONSEQUENTLY, THE
REGULATION OF MARRIAGE SHOULD BE LEFT TO EXCLUSIVE STATE CONTROL BY THE
TENTH AMENDMENT.
WHILE THE STATE COURT IS NO DOUBT CORRECT IN ASSERTING THAT MARRIAGE
IS A SOCIAL RELATION SUBJECT TO THE STATE'S POLICE POWER, MAYNARD V.
HILL, 125 U.S. 190 (1888), THE STATE DOES NOT CONTEND IN ITS ARGUMENT
BEFORE THIS COURT THAT ITS POWERS TO REGULATE MARRIAGE ARE UNLIMITED
NOTWITHSTANDING THE COMMANDS OF THE FOURTEENTH AMENDMENT. NOR COULD IT
DO SO IN LIGHT OF MEYER V. NEBRASKA, 262 U.S. 390 (1923), AND SKINNER
V. OKLAHOMA, 316 U.S. 535 (1942). INSTEAD, THE STATE ARGUES THAT THE
MEANING OF THE EQUAL PROTECTION CLAUSE, AS ILLUMINATED BY THE
STATEMENTS OF THE FRAMERS, IS ONLY THAT STATE PENAL LAWS CONTAINING AN
INTERRACIAL ELEMENT AS PART OF THE DEFINITION OF THE OFFENSE MUST APPLY
EQUALLY TO WHITES AND NEGROES IN THE SENSE THAT MEMBERS OF EACH RACE
ARE PUNISHED TO THE SAME DEGREE. THUS, THE STATE CONTENDS THAT,
BECAUSE ITS MISCEGENATION STATUTES PUNISH EQUALLY BOTH THE WHITE AND
THE NEGRO PARTICIPANTS IN AN INTERRACIAL MARRIAGE, THESE STATUTES,
DESPITE THEIR RELIANCE ON RACIAL CLASSIFICATIONS, DO NOT CONSTITUTE AN
INVIDIOUS DISCRIMINATION BASED UPON RACE. THE SECOND ARGUMENT ADVANCED
BY THE STATE ASSUMES THE VALIDITY OF ITS EQUAL APPLICATION THEORY. THE
ARGUMENT IS THAT, IF THE EQUAL PROTECTION CLAUSE DOES NOT OUTLAW
MISCEGENATION STATUTES BECAUSE OF THEIR RELIANCE ON RACIAL
CLASSIFICATIONS, THE QUESTION OF CONSTITUTIONALITY WOULD THUS BECOME
WHETHER THERE WAS ANY RATIONAL BASIS FOR A STATE TO TREAT INTERRACIAL
MARRIAGES DIFFERENTLY FROM OTHER MARRIAGES. ON THIS QUESTION, THE
STATE ARGUES, THE SCIENTIFIC EVIDENCE IS SUBSTANTIALLY IN DOUBT AND,
CONSEQUENTLY, THIS COURT SHOULD DEFER TO THE WISDOM OF THE STATE
LEGISLATURE IN ADOPTING ITS POLICY OF DISCOURAGING INTERRACIAL
MARRIAGES.
BECAUSE WE REJECT THE NOTION THAT THE MERE "EQUAL APPLICATION" OF A
STATUTE CONTAINING RACIAL CLASSIFICATIONS IS ENOUGH TO REMOVE THE
CLASSIFICATIONS FROM THE FOURTEENTH AMENDMENT'S PROSCRIPTION OF ALL
INVIDIOUS RACIAL DISCRIMINATIONS, WE DO NOT ACCEPT THE STATE'S
CONTENTION THAT THESE STATUTES SHOULD BE UPHELD IF THERE IS ANY
POSSIBLE BASIS FOR CONCLUDING THAT THEY SERVE A RATIONAL PURPOSE. THE
MERE FACT OF EQUAL APPLICATION DOES NOT MEAN THAT OUR ANALYSIS OF THESE
STATUTES SHOULD FOLLOW THE APPROACH WE HAVE TAKEN IN CASES INVOLVING NO
RACIAL DISCRIMINATION WHERE THE EQUAL PROTECTION CLAUSE HAS BEEN
ARRAYED AGAINST A STATUTE DISCRIMINATING BETWEEN THE KINDS OF
ADVERTISING WHICH MAY BE DISPLAYED ON TRUCKS IN NEW YORK CITY, RAILWAY
EXPRESS AGENCY, INC. V. NEW YORK, 336 U.S. 106 (1949), OR AN EXEMPTION
IN OHIO'S AD VALOREM TAX FOR MERCHANDISE OWNED BY A NON-RESIDENT IN A
STORAGE WAREHOUSE, ALLIED STORES OF OHIO, INC. V. BOWERS, 358 U.S. 522
(1959). IN THESE CASES, INVOLVING DISTINCTIONS NOT DRAWN ACCORDING TO
RACE, THE COURT HAS MERELY ASKED WHETHER THERE IS ANY RATIONAL
FOUNDATION FOR THE DISCRIMINATIONS, AND HAS DEFERRED TO THE WISDOM OF
THE STATE LEGISLATURES. IN THE CASE AT BAR, HOWEVER, WE DEAL WITH
STATUTES CONTAINING RACIAL CLASSIFICATIONS, AND THE FACT OF EQUAL
APPLICATION DOES NOT IMMUNIZE THE STATUTE FROM THE VERY HEAVY BURDEN OF
JUSTIFICATION WHICH THE FOURTEENTH AMENDMENT HAS TRADITIONALLY REQUIRED
OF STATE STATUTES DRAWN ACCORDING TO RACE.
THE STATE ARGUES THAT STATEMENTS IN THE THIRTY-NINTH CONGRESS ABOUT
THE TIME OF THE PASSAGE OF THE FOURTEENTH AMENDMENT INDICATE THAT THE
FRAMERS DID NOT INTEND THE AMENDMENT TO MAKE UNCONSTITUTIONAL STATE
MISCEGENATION LAWS. MANY OF THE STATEMENTS ALLUDED TO BY THE STATE
CONCERN THE DEBATES OVER THE FREEDMEN'S BUREAU BILL, WHICH PRESIDENT
JOHNSON VETOED, AND THE CIVIL RIGHTS ACT OF 1866, 14 STAT. 27, ENACTED
OVER THIS VETO. WHILE THESE STATEMENTS HAVE SOME RELEVANCE TO THE
INTENTION OF CONGRESS IN SUBMITTING THE FOURTEENTH AMENDMENT, IT MUST
BE UNDERSTOOD THAT THEY PERTAINED TO THE PASSAGE OF SPECIFIC STATUTES
AND NOT TO THE BROADER ORGANIC PURPOSE OF A CONSTITUTIONAL AMENDMENT.
AS FOR THE VARIOUS STATEMENTS DIRECTLY CONCERNING THE FOURTEENTH
AMENDMENT, WE HAVE SAID IN CONNECTION WITH A RELATED PROBLEM, THAT
ALTHOUGH THESE HISTORICAL SOURCES "CAST SOME LIGHT" THEY ARE NOT
SUFFICIENT TO RESOLVE THE PROBLEM; "AT BEST, THEY ARE INCONCLUSIVE.
THE MOST AVID PROPONENTS OF THE POST-WAR AMENDMENTS UNDOUBTEDLY
INTENDED THEM TO REMOVE ALL LEGAL DISTINCTIONS AMONG 'ALL PERSONS BORN
OR NATURALIZED IN THE UNITED STATES.' THEIR OPPONENTS, JUST AS
CERTAINLY, WERE ANTAGONISTIC TO BOTH THE LETTER AND THE SPIRIT OF THE
AMENDMENTS AND WISHED THEM TO HAVE THE MOST LIMITED EFFECT." BROWN V.
BOARD OF EDUCATION, 347 U.S. 483, 489 (1954). SEE ALSO STRAUDER V.
WEST VIRGINIA, 100 U.S. 303, 310 (1880). WE HAVE REJECTED THE
PROPOSITION THAT THE DEBATES IN THE THIRTY-NINTH CONGRESS OR IN THE
STATE LEGISLATURES WHICH RATIFIED THE FOURTEENTH AMENDMENT SUPPORTED
THE THEORY ADVANCED BY THE STATE, THAT THE REQUIREMENT OF EQUAL
PROTECTION OF THE LAWS IS SATISFIED BY PENAL LAWS DEFINING OFFENSES
BASED ON RACIAL CLASSIFICATIONS SO LONG AS WHITE AND NEGRO PARTICIPANTS
IN THE OFFENSE WERE SIMILARLY PUNISHED. MCLAUGHLIN V. FLORIDA, 379
U.S. 184 (1964).
THE STATE FINDS SUPPORT FOR ITS "EQUAL APPLICATION" THEORY IN THE
DECISION OF THE COURT IN PACE V. ALABAMA, 106 U.S. 583 (1883). IN THAT
CASE, THE COURT UPHELD A CONVICTION UNDER AN ALABAMA STATUTE FORBIDDING
ADULTERY OR FORNICATION BETWEEN A WHITE PERSON AND A NEGRO WHICH
IMPOSED A GREATER PENALTY THAN THAT OF A STATUTE PROSCRIBING SIMILAR
CONDUCT BY MEMBERS OF THE SAME RACE. THE COURT REASONED THAT THE
STATUTE COULD NOT BE SAID TO DISCRIMINATE AGAINST NEGROES BECAUSE THE
PUNISHMENT FOR EACH PARTICIPANT IN THE OFFENSE WAS THE SAME. HOWEVER,
AS RECENTLY AS THE 1964 TERM, IN REJECTING THE REASONING OF THAT CASE,
WE STATED "PACE REPRESENTS A LIMITED VIEW OF THE EQUAL PROTECTION
CLAUSE WHICH HAS NOT WITHSTOOD ANALYSIS IN THE SUBSEQUENT DECISIONS OF
THIS COURT." MCLAUGHLIN V. FLORIDA, SUPRA, AT 188. AS WE THERE
DEMONSTRATED, THE EQUAL PROTECTION CLAUSE REQUIRES THE CONSIDERATION OF
WHETHER THE CLASSIFICATIONS DRAWN BY ANY STATUTE CONSTITUTE AN
ARBITRARY AND INVIDIOUS DISCRIMINATION. THE CLEAR AND CENTRAL PURPOSE
OF THE FOURTEENTH AMENDMENT WAS TO ELIMINATE ALL OFFICIAL STATE SOURCES
OF INVIDIOUS RACIAL DISCRIMINATION IN THE STATES. SLAUGHTER-HOUSE
CASES, 16 WALL. 36, 71 (1873); STRAUDER V. WEST VIRGINIA, 100 U.S.
303, 307-308 (1880); EX PARTE VIRGINIA, 100 U.S. 339, 344-345 (1880);
SHELLEY V. KRAEMER, 334 U.S. 1 (1948); BURTON V. WILMINGTON PARKING
AUTHORITY, 365 U.S. 715 (1961).
THERE CAN BE NO QUESTION BUT THAT VIRGINIA'S MISCEGENATION STATUTES
REST SOLELY UPON DISTINCTIONS DRAWN ACCORDING TO RACE. THE STATUTES
PROSCRIBE GENERALLY ACCEPTED CONDUCT IF ENGAGED IN BY MEMBERS OF
DIFFERENT RACES. OVER THE YEARS, THIS COURT HAS CONSISTENTLY
REPUDIATED "DISTINCTIONS BETWEEN CITIZENS SOLELY BECAUSE OF THEIR
ANCESTRY" AS BEING "ODIOUS TO A FREE PEOPLE WHOSE INSTITUTIONS ARE
FOUNDED UPON THE DOCTRINE OF EQUALITY." HIRABAYASHI V. UNITED STATES,
320 U.S. 81, 100 (1943). AT THE VERY LEAST, THE EQUAL PROTECTION
CLAUSE DEMANDS THAT RACIAL CLASSIFICATIONS, ESPECIALLY SUSPECT IN
CRIMINAL STATUTES, BE SUBJECTED TO THE "MOST RIGID SCRUTINY," KOREMATSU
V. UNITED STATES, 323 U.S. 214, 216 (1944), AND, IF THEY ARE EVER TO BE
UPHELD, THEY MUST BE SHOWN TO BE NECESSARY TO THE ACCOMPLISHMENT OF
SOME PERMISSIBLE STATE OBJECTIVE, INDEPENDENT OF THE RACIAL
DISCRIMINATION WHICH IT WAS THE OBJECT OF THE FOURTEENTH AMENDMENT TO
ELIMINATE. INDEED, TWO MEMBERS OF THIS COURT HAVE ALREADY STATED THAT
THEY "CANNOT CONCEIVE OF A VALID LEGISLATIVE PURPOSE ... WHICH MAKES
THE COLOR OF A PERSON'S SKIN THE TEST OF WHETHER HIS CONDUCT IS A
CRIMINAL OFFENSE." MCLAUGHLIN V. FLORIDA, SUPRA, AT 198 (STEWART, J.,
JOINED BY DOUGLAS, J., CONCURRING).
THERE IS PATENTLY NO LEGITIMATE OVERRIDING PURPOSE INDEPENDENT OF
INVIDIOUS RACIAL DISCRIMINATION WHICH JUSTIFIES THIS CLASSIFICATION.
THE FACT THAT VIRGINIA PROHIBITS ONLY INTERRACIAL MARRIAGES INVOLVING
WHITE PERSONS DEMONSTRATES THAT THE RACIAL CLASSIFICATIONS MUST STAND
ON THEIR OWN JUSTIFICATION AS MEASURES DESIGNED TO MAINTAIN WHITE
SUPREMACY. (FN11) WE HAVE CONSISTENTLY DENIED THE CONSTITUTIONALITY
OF MEASURES WHICH RESTRICT THE RIGHTS OF CITIZENS ON ACCOUNT OF RACE.
THERE CAN BE NO DOUBT THAT RESTRICTING THE FREEDOM TO MARRY SOLELY
BECAUSE OF RACIAL CLASSIFICATIONS VIOLATES THE CENTRAL MEANING OF THE
EQUAL PROTECTION CLAUSE.
II.
THESE STATUTES ALSO DEPRIVE THE LOVINGS OF LIBERTY WITHOUT DUE
PROCESS OF LAW IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT. THE FREEDOM TO MARRY HAS LONG BEEN RECOGNIZED AS ONE OF THE
VITAL PERSONAL RIGHTS ESSENTIAL TO THE ORDERLY PURSUIT OF HAPPINESS BY
FREE MEN.
MARRIAGE IS ONE OF THE "BASIC CIVIL RIGHTS OF MAN," FUNDAMENTAL TO
OUR VERY EXISTENCE AND SURVIVAL. SKINNER V. OKLAHOMA, 316 U.S. 535,
541 (1942). SEE ALSO MAYNARD V. HILL, 125 U.S. 190 (1888). TO DENY
THIS FUNDAMENTAL FREEDOM ON SO UNSUPPORTABLE A BASIS AS THE RACIAL
CLASSIFICATIONS EMBODIED IN THESE STATUTES, CLASSIFICATIONS SO DIRECTLY
SUBVERSIVE OF THE PRINCIPLE OF EQUALITY AT THE HEART OF THE FOURTEENTH
AMENDMENT, IS SURELY TO DEPRIVE ALL THE STATE'S CITIZENS OF LIBERTY
WITHOUT DUE PROCESS OF LAW. THE FOURTEENTH AMENDMENT REQUIRES THAT THE
FREEDOM OF CHOICE TO MARRY NOT BE RESTRICTED BY INVIDIOUS RACIAL
DISCRIMINATIONS. UNDER OUR CONSTITUTION, THE FREEDOM TO MARRY, OR NOT
MARRY, A PERSON OF ANOTHER RACE RESIDES WITH THE INDIVIDUAL AND CANNOT
BE INFRINGED BY THE STATE.
THESE CONVICTIONS MUST BE REVERSED. IT IS SO ORDERED.
FN1 SECTION 1 OF THE FOURTEENTH AMENDMENT PROVIDES:
"ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES AND SUBJECT TO
THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE
STATE WHEREIN THEY RESIDE. NO STATE SHALL MAKE OR ENFORCE ANY LAW
WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE
UNITED STATES; NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN
ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS."
FN2 206 VA. 924, 147 S.E.2D 78 (1966).
FN3 SECTION 20-57 OF THE VIRGINIA CODE PROVIDES:
"MARRIAGES VOID WITHOUT DECREE. - ALL MARRIAGES BETWEEN A WHITE
PERSON AND A COLORED PERSON SHALL BE ABSOLUTELY VOID WITHOUT ANY DECREE
OF DIVORCE OR OTHER LEGAL PROCESS." VA. CODE ANN. SEC 20-57 (1960
REPL. VOL.).
FN4 SECTION 20-54 OF THE VIRGINIA CODE PROVIDES:
"INTERMARRIAGE PROHIBITED; MEANING OF TERM 'WHITE PERSONS.' - IT
SHALL HEREAFTER BE UNLAWFUL FOR ANY WHITE PERSON IN THIS STATE TO MARRY
ANY SAVE A WHITE PERSON, OR A PERSON WITH NO OTHER ADMIXTURE OF BLOOD
THAN WHITE AND AMERICAN INDIAN. FOR THE PURPOSE OF THIS CHAPTER, THE
TERM 'WHITE PERSON' SHALL APPLY ONLY TO SUCH PERSON AS HAS NO TRACE
WHATEVER OF ANY BLOOD OTHER THAN CAUCASIAN; BUT PERSONS WHO HAVE ONE
SIXTEENTH OR LESS OF THE BLOOD OF THE AMERICAN INDIAN AND HAVE NO OTHER
NON-CAUCASIC BLOOD SHALL BE DEEMED TO BE WHITE PERSONS. ALL LAWS
HERETOFORE PASSED AND NOW IN EFFECT REGARDING THE INTERMARRIAGE OF
WHITE AND COLORED PERSONS SHALL APPLY TO MARRIAGES PROHIBITED BY THIS
CHAPTER." VA. CODE ANN. SEC 20-54 (1960 REPL. VOL.).
THE EXCEPTION FOR PERSONS WITH LESS THAN ONE-SIXTEENTH "OF THE BLOOD
OF THE AMERICAN INDIAN" IS APPARENTLY ACCOUNTED FOR, IN THE WORDS OF A
TRACT ISSUED BY THE REGISTRAR OF THE STATE BUREAU OF VITAL STATISTICS,
BY "THE DESIRE OF ALL TO RECOGNIZE AS AN INTEGRAL AND HONORED PART OF
THE WHITE RACE THE DESCENDANTS OF JOHN ROLFE AND POCAHONTAS ... ."
PLECKER, THE NEW FAMILY AND RACE IMPROVEMENT, 17 VA. HEALTH BULL.,
EXTRA NO. 12, AT 25-26 (NEW FAMILY SERIES NO. 5, 1925), CITED IN
WADLINGTON, THE LOVING CASE: VIRGINIA'S ANTI-MISCEGENATION STATUTE IN
HISTORICAL PERSPECTIVE, 52 VA. L. REV. 1189, 1202, N. 93 (1966).
"COLORED PERSONS AND INDIANS DEFINED. - EVERY PERSON IN WHOM THERE
IS ASCERTAINABLE ANY NEGRO BLOOD SHALL BE DEEMED AND TAKEN TO BE A
COLORED PERSON, AND EVERY PERSON NOT A COLORED PERSON HAVING ONE FOURTH
OR MORE OF AMERICAN INDIAN BLOOD SHALL BE DEEMED AN AMERICAN INDIAN;
EXCEPT THAT MEMBERS OF INDIAN TRIBES EXISTING IN THIS COMMONWEALTH
HAVING ONE FOURTH OR MORE OF INDIAN BLOOD AND LESS THAN ONE-SIXTEENTH
OF NEGRO BLOOD SHALL BE DEEMED TRIBAL INDIANS." VA. CODE ANN. SEC 1-14
(1960 REPL. VOL.).
FN5 AFTER THE INITIATION OF THIS LITIGATION, MARYLAND REPEALED ITS
PROHIBITIONS AGAINST INTERRACIAL MARRIAGE, MD. LAWS 1967, C. 6, LEAVING
VIRGINIA AND 15 OTHER STATES WITH STATUTES OUTLAWING INTERRACIAL
MARRIAGE: ALABAMA, ALA. CONST., ART. 4, SEC 102, ALA. CODE, TIT. 14,
SEC 360 (1958); ARKANSAS, ARK. STAT. ANN. SEC 55-104 (1947); DELAWARE,
DEL. CODE ANN., TIT. 13, SEC 101 (1953); FLORIDA, FLA. CONST., ART.
16, SEC 24, FLA. STAT. SEC 741.11 (1965); GEORGIA, GA. CODE ANN. SEC 53
106 (1961); KENTUCKY, KY. REV. STAT. ANN. SEC 402.020 (SUPP. 1966);
LOUISIANA, LA. REV. STAT. SEC 14:79 (1950); MISSISSIPPI, MISS. CONST.,
ART. 14, SEC 263, MISS. CODE ANN. SEC 459 (1956); MISSOURI, MO. REV.
STAT. SEC 451.020 (SUPP. 1966); NORTH CAROLINA, N.C. CONST., ART. XIV,
SEC 8, N.C. GEN. STAT. SEC 14-181 (1953); OKLAHOMA, OKLA. STAT., TIT.
43, SEC 12 (SUPP. 1965); SOUTH CAROLINA, S.C. CONST., ART. 3, SEC 33,
S.C. CODE ANN. SEC 20-7 (1962); TENNESSEE, TENN. CONST., ART. 11, SEC
14, TENN. CODE ANN. SEC 36-402 (1955); TEXAS, TEX. PEN. CODE, ART. 492
(1952); WEST VIRGINIA, W. VA. CODE ANN. SEC 4697 (1961).
OVER THE PAST 15 YEARS, 14 STATES HAVE REPEALED LAWS OUTLAWING
INTERRACIAL MARRIAGES: ARIZONA, CALIFORNIA, COLORADO, IDAHO, INDIANA,
MARYLAND, MONTANA, NEBRASKA, NEVADA, NORTH DAKOTA, OREGON, SOUTH
DAKOTA, UTAH, AND WYOMING.
THE FIRST STATE COURT TO RECOGNIZE THAT MISCEGENATION STATUTES
VIOLATE THE EQUAL PROTECTION CLAUSE WAS THE SUPREME COURT OF
CALIFORNIA. PEREZ V. SHARP, 32 CAL. 2D 711, 198 P.2D 17 (1948).
FN6 FOR A HISTORICAL DISCUSSION OF VIRGINIA'S MISCEGENATION
STATUTES, SEE WADLINGTON, SUPRA, N. 4.
FN7 VA. CODE ANN. SEC 20-54 (1960 REPL. VOL.).
FN8 VA. CODE ANN. SEC 20-53 (1960 REPL. VOL.).
FN9 VA. CODE ANN. SEC 20-50 (1960 REPL. VOL.).
FN10 VA. CODE ANN. SEC 20-54 (1960 REPL. VOL.).
FN11 APPELLANTS POINT OUT THAT THE STATE'S CONCERN IN THESE
STATUTES, AS EXPRESSED IN THE WORDS OF THE 1924 ACT'S TITLE, "AN ACT TO
PRESERVE RACIAL INTEGRITY," EXTENDS ONLY TO THE INTEGRITY OF THE WHITE
RACE. WHILE VIRGINIA PROHIBITS WHITES FROM MARRYING ANY NONWHITE
(SUBJECT TO THE EXCEPTION FOR THE DESCENDANTS OF POCOHONTAS), NEGROES,
ORIENTALS, AND ANY OTHER RACIAL CLASS MAY INTERMARRY WITHOUT STATUTORY
INTERFERENCE. APPELLANTS CONTEND THAT THIS DISTINCTION RENDERS
VIRGINIA'S MISCEGENATION STATUTES ARBITRARY AND UNREASONABLE EVEN
ASSUMING THE CONSTITUTIONAL VALIDITY OF AN OFFICIAL PURPOSE TO PRESERVE
"RACIAL INTEGRITY." WE NEED NOT REACH THIS CONTENTION BECAUSE WE FIND
THE RACIAL CLASSIFICATIONS IN THESE STATUTES REPUGNANT TO THE
FOURTEENTH AMENDMENT, EVEN ASSUMING AN EVEN-HANDED STATE PURPOSE TO
PROTECT THE "INTEGRITY" OF ALL RACES.
MR. JUSTICE STEWART, CONCURRING.
I HAVE PREVIOUSLY EXPRESSED THE BELIEF THAT "IT IS SIMPLY NOT
POSSIBLE FOR A STATE LAW TO BE VALID UNDER OUR CONSTITUTION WHICH MAKES
THE CRIMINALITY OF AN ACT DEPEND UPON THE RACE OF THE ACTOR."
MCLAUGHLIN V. FLORIDA, 379 U.S. 184, 198 (CONCURRING OPINION). BECAUSE
I ADHERE TO THAT BELIEF, I CONCUR IN THE JUDGMENT OF THE COURT.
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