Opposition Brief — Naim v. Naim

CITATIONS

Bolling v. Sharpe, 347 U.S. 497, 499

Buchanan v. Warley, 245 U.S. 60...

Hirabayashi v. United States, 320 U.S. 81, 100.

Jackson v. State, 260 Ala. 698, 72 So. 2d 116, cert. de-

nied 348 U. S. 888. ne

Korematsu v. United States, 323 U. S. 214, 217

Maynard v. Hill, 125 U.S. 190, 205

Meyer v. Nebraska, 262 U.S. 390

Oyama vy. California, 332 U. S. 633, 646

Pace v. Alabama, 106 U. 8S. 583.

Reynolds v. United States, 98 U.S. 145, 165 ae"

Rule 16(b) and (ce), Revised Rules of the Supreme

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Senate Bill 219, Senate Bills, Virginia Senate, 1924

Sherrer v. Sherrer, 334 U.S. 343, 354

Wood v. Commonwealth, 159 Va. 963, 965, 166 S. E.

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1955

No. 366

HAM SAY NAIM,

Appellant,

Us.

RUBY ELAINE NAIM,

Appellee

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA

BRIEF IN OPPOSITION TO APPELLEE’S MOTION TO

DISMISS OR AFFIRM

The questions posed by this appeal, the appellee says, are

so unsubstantial that they need no further argument before

this Court, and she has rested her motion to dismiss, or in

the alternative, to affirm the decree below, upon that sole

ground. (Rule 16(b) and (c), Revised Rules of the Su-

preme Court.)

Not without irony, the appellee relies, in part,' upon three

decisions of this Court which declare that marriage cre-

ates ‘‘the most important relation in life’’,? that it results

1 Appellee’s Statement, Page 5.

* Maynard vy. Hill, 125 U. S. 190, 205.

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in ‘‘social relations and social obligations and duties, with

which government is necessarily required to deal’’,* and

that it ‘‘involves the exercise by the States of powers of the

most vital importance’’.*

Moreover, the appellee concedes* that this Court has

never before passed upon the validity of the statutes which

seek to interfere with marriage because the spouses are

persons of different races.

Two reasons are given by the appellee in support of her

argument that the questions posed here are not substan-

tial. One is that ‘‘the unbroken line of cases beginning in

1869, the very year after the Fourteenth Amendment was

adopted, and continuing through 1954 clearly emasculate

the appellant’s contention’’ (that the statute is unconstitu-

tional on its face). (Appellee’s Statement, Page 10).

Whatever unbroken line of cases there may be were not

cited by the appellee. On the contrary, the six decisions

of this Court relied upon by the appellee, supra, indicate,

first, that the questions posed in this appeal have not been

decided by the United States Supreme Court, and second,

that the determination of the constitutional power of a state

to dissolve marriages does, in fact, pose a substantial fed-

eral question. In Maynard vy. Hill, the dissolution of the

marriage was tested against the constitutional prohibition

forbidding impairment of contracts. In Reynolds v. United

States, the issue was whether a polygamous marriage was

protected by the constitutional guaranty of religious

freedom. Sherrer v. Sherrer involved the effect of the full

faith and credit clause upon proceedings to determine

marital status.

3 Reynolds v. United States, 98 U. S. 145, 165.

4 Sherrer v. Sherrer, 334 U. S. 343, 354.

5 Appellee’s Statement, pp. 7, 8, citing Pace v. Alabama, 106 U. S. 583;

Buchanan v. Warley, 245 U. 8. 60, and Jackson vy. State, 260 Ala. 698, 72

So. 2d 116, cert. denied, 348 U. S. 886,

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For the first time in the constitutional history of the

United States, the present appeal poses the question

whether the equal protection and due process clauses of the

Fourteenth Amendment inhibit the power of a state to dis-

solve a marriage upon the sole ground of the races of the

spouses.

This Court has held that a state may not deny by rea-

son of race the rights of its residents to follow ordinary

occupations, to serve on petit or grand juries, to buy, sell,

or occupy real property, to vote in primary as well as een-

eral elections, or to attend public schools.

Whether a marriage, ‘‘the most important relation in

life’, can be dissolved by a state because one spouse is

Caucasian and the other is Chinese * manifestly poses a

question at least equal in substance to the foregoing issues.

In the context of these decisions by the Supreme Court,

it denies reality to say that the question raised in this

appeal is unsubstantial.

The second reason relied upon by the appellee is that in

this appeal *‘the critical issue is the reasonableness of the

legislative classification and the necessity for regulation”,

and that in the absence of evidence or facts within the judi-

cial notice of the Court to challenge the classification. this

Court should not ‘intervene in the present ease’’, (Par. 4.

Appellee’s Statement).

The basic flaw in the appellee’s argument is that it has

by-passed the question of the state’s power to act at all in

the field of preserving the racial integrity of the white race,

The question is not whether the classifications adopted

within the ‘Act to Preserve Racial Integrity’? are arbi-

*It should be noted that the purpose of the statute requiring such dis-

solutions is to “preserve the integrity of the white race”, (See Senate Bill

219, Senate Bills, Virginia Senate, 1924: Wood v. Commonwealth, 159

Va. 963, 965, 166 S. E. 477) and “to regulate the marriage relation so

that it (the State) shall not have a mongrel breed of citizens”. (See

Opinion below, Statement as to Jurisdiction, Page 24.)

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trary or without a reasonable relation to the purpose of the

statute. The question rather is whether the purpose js

within the competency of the state to effect. Meyer y,

Nebraska, 262 U.S. 390, 399. The appellee’s reasoning pre-

supposes the validity of the purpose of the statute. Oyama

v. California, 332 U. S. 633, 646.

The Court below did not fail to treat both issues. It

explicitly upheld the validity of the purpose of the statute:

‘If the prevention of miscegenetic marriages is a

proper governmental objective, and within the com-

petency of the state to effect, which we hold it to be,

then Section 20-54 of the Code, supra, under attack,

is a valid enactment unless classification made by the

statute is arbitrary and without reasonable relation to

the purpose intended to be effected’? (Statement as to

Jurisdiction, Page 23).

The critical issue in this appeal, therefore, is whether the

Court below is correct in holding that the ‘‘ prevention of

miscegenetic marriages is a proper governmental objective

and within the competency of the state to effect”’.

Nor is the appellee correct in her assumption that the

burden is upon the appellant to show that the racial classif-

cations adopted by the statute are unreasonable. The

decisions of this Court in Hirabayashi v. United States,

320 U.S. 81, 100, 101; Korematsu v. United States, 323

U.S. 214, 217; Oyama v. California, supra, and Bolling vy.

Sharpe, 947 U.S. 497, 499, have declared that racial dis-

tinctions are irrelevant, unjustified, inexcusable, odious,

and constitutionally suspect, and that a pressing public

necessity or exceptional cireumstances must be shown to

justify them. Obviously, the burden of showing such a

necessity is upon those who seek to justify the racial

distinctions.

_—

Inasmuch as that burden has not been met by the appellee,

her motion to dismiss the appeal or, in the alternative, to

aflirm the decree below, should be denied.

Respectfully submitted,

Davin CarLIner,

Attorney for Appellant.

Hersert Monte Levy,

American Civil Liberties Union;

Witt Masvow,

American Jewish Congress;

Artuur Lazarus AND Ricnarp ScHIFTER,

Association on American Indian Affairs;

Jack WASSERMAN,

Association of Immigration and Nationality

Lawyers;

Frank CuuM_N and Epwarp Ennis,

Japanese-American Citizens League;

Anprew REINER,

Frep T. Srant, Jr.,

Atay S. Mirman,

Of Counsel.

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Proof of Service

I, David Carliner, attorney for Ham Say Naim, appel-

lant herein, and a member of the Bar of the Supreme Court

of the United States, hereby certify that on the 17th day

of October, 1955, I served a copy of the foregoing Brief

in Opposition to Appellee’s Motion to Dismiss or Affirm

on Ruby Elaine Naim, appellee herein, as follows:

By mailing a copy, in a duly addressed envelope, with

postage paid to A. A. Bangel, Esq., her attorney of record,

at his office at Law Building, Portsmouth, Virginia.

Davip CARLINER,

Attorney for Appellant,

902 Warner Building,

Washington 4, D.C.

(4633-4)