Brief for Appellants — McLaughlin v. Florida

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—,

{ Ottice-Supreme Court, US.

“ FILED

a 1964

IN THE

Supreme Court uf the United ts

si Ocroser Term, 1964 5

No. ll

> =.

Dewey McLaveuniy, et al.,

Appellants,

—_vVi—

FLoripa. ’

ON APPEAL FROM THE SUPREME COURT OF THE ‘STATE OF FLORIDA

BRIEF FOR APPELLANTS

JACK GREENBERG

JaMrES M. Nasrit, III

Leroy D. CLARK

10 ‘Columbus Circle

New York, New York

Louis H. PornaK

127 Wall Street

New Haven, Connecticut. en

Wittiam T Coteman, Jr.

26535 Fidclity-Philadelphia -

Trust Bldg.

Philadelphia 9, Pennsylvania

G. KE. Graves, Jr.

802 N. W. Second Avenue

. Miaini, Florida.

aa ttorneys for Appellants.

— ——— _——

—

INDEX

| PAGE

Opinion Below ..........---- ts caubatediupmmentehersesorsneseiebentd Siro tetas

Jurisdiction ........0...-c--cc ceeees oe sora cesendvin BE Lied hg PSP

Constitutional and Statutory Provisions Involved — ~

Questions Presented... avian cabanas Haein

. . g .

heh cdc sa verenesrnecnecsenen msznestvenmvannenaereminMtentses san years

. - te 7

‘Summary of Argument... yy pees Fes aanece

ARGUMENT:

i].

Ill.

Appellants Were Convieted Ender a Law

- Whieh Makes Race an tlement of the Crime,

Punishing a Negro and a White Person for,

Acts Not Prohibited When Done by Persons

of the Same Race, and Thus Violates the Due

Process and Equal Protection Clauses of the

Fourteenth Amenament .....----\ er

Appellants Were Denied Rights Viider the

“Due Process and Bqual Protection Clauses of

: |

the Pourteenth Amendment by Florida's Mis

cegenation Laws Which Had the Effeet of

Requiring the Jury to Disregard Evidence of

a Common Law Marriage H It Decided That

One Appellant) Was White and That the

Other Was Negro... cert ee ee

Appellants Were Denied ‘Due Process Be-

cause Either There Was No Proof of Their

Race or Florida's Racial Definition Ix Vague

Coxchrsi0x ............. ices Se PRS econ Seen

> APPE NDIX:

States Repealing Miscegenation Laws in Recent

Sh RRMRNE LD PRAY ANS ARE aR PREG RCEC eler oRCAHe Soar. la

States Repealing Miscegenation Laws in Last Cen-

ys gaptaleane Ai irvere nites tree: AA ores Rieiceuruesea pias ake 2a .

States Never Enacting Statutes W hich Prohibit

Inte rracial Marriage .--........ Bis natertmsisnsealontorn iia kon 2a

Snien at Present Prohibiting Inte racial Mar- 3

riage ak cutee Os ANAL eR Bs LE TDs CoO 3a

TABLE OF Cases

Abington School District v. Sche ‘MpP, 374 U. S$. 2 203 a ee

Anderson v. i 379 U.S. 399 . SITS WN RD ORC ole 12, 26

| $d 822... 2%

B ae v. " Slearige: 347 U. ‘Ss. 497 “ ita ey i2

Brown v. Board of Education, 347 U.S: 483 ....12, 13, 14, 25

Buchanan v. Warley, 245 U.S. 60 02.000... 8, 12, 13, 14, 26

Burns v. State, 48 Ala. 195 (1872) Se OED eared 24, 26

Callen v. Florida, 94 So. 2d 603 (Fla. 1957) aaa aor 1

Campbell v. State, 92 Fla. 775, 109 So. 809 (1926) .. . 30

Chaachou vy. Chaachou, 73 So, 2d 830 (Fla. 1954). ...... _ 16

Cloud y. State, 64 Fla. 237, 60 So. 180 (1912) ...... orweren 1]

Connally v. General Construction Co., 269 U.S. 385... 930

Cooper y. Aaron, 358 T.. S. ; iidineseeayrastoreeeaes ee ree, 25

| Dorsey'v. State Athlete Coxpasinicn, 168 F. Supp. 149

= CE Bh ik, FR ee ee a voces, 13

Edwards v. California, 314 U.S. 160 2.0 ce ee. 13

iil

PAGE

Gayle v. Browder, 352 U.S. 908, affirming, 142 F. Supp.

po a Re ee es) oer Saar re Seater 13, 14, 26

“Gibson v. Mississippi, 162 U.S. 5607.00... 13

Goss v. Board of Education, 373 U.S. 689 ......13, 14, 25, 26

Green v. State, 58 Ala. 190 (1S¢7) .....2..2--- OEE fer 24

' Grice v. State, 76 Fla. 751, 78 So. 984 (DITA) 2. 12

Hamilton v. Alabama, 376 U.S. 600 0... divkcnby a sineeasines Ww

Hill v. United States ex rel. Weiner, 800 PLS. 105 0000. T4

“Virabayashi v. United States, 320 U.S. 81. 4 12

Holmes y. Atlanta, 350 U.S. 879, reversing 2 223 B 2d

93 (Sth Cir, W990) op Scpuiciebes yoiebsartianiou atelergniee . BR

Jackson vy. Alabama, 348-0. S. 888 20. Deenlncnnsstc, ane

Johnson v. Virginia, 373 U.S. G1 ob. le 18, 26

Korematsu vy. United States, 825 U.S. 6 ol te

- Langford y, State, 124 Fla. 428, 168 So, 628 (1986) 00000 71

Lanzetta v. New Jersey, 306 U.S. 451 Ks 30

Le Blane v. Yawn, 99 Fla. 467, 126 So. 789 (1950) i

Lewis v. State, 93 So, 2b 707, (Fla. WoT)... 18

— Lombard y, Louisiana, 303 U.S M.D... 13, 26

Lonas v. State, 00 Tenn. 287 (9874) ......... Rees . Ww

Luster v. State, 23 Fla. 889, 2 So. 60 (1SST) —...... pat 11

Malioy v. Hogan, aowcem S$, ——, 12 L. ed. 2d 6538 4)... 18

Meyer v. Nebraska, 262 U.S. 390 Sendo be ae

Missouri Pacifie Railway Co. vy. Nansas, 248 v. 2 Sy

Moore v . Missouri, 199 U.S; 673. ew nee,

‘Naim v. Naim, 390 0. S. mee distnissed am Tt.

eae Peckiittion ¢ “USCS, 253 U, S. deal) . mae a

Navarro, Ine. v. Baker, 54 So. 2d 59 (Fla. T951) .. ae ae

Orr v. State, 129 Pla. 308, t76 Mo. 50 (1987) ...............

| ; PAGE

Pace v. Alabama, 106 U. S. 583... sessssesTy & 13, 14, 18

Parramore v. State, 81 Fla. 621,88 So. 472 (1921): seateiah 16

_ Penton v. State, 42 Fla. 560, 28 So. 774 (1900) 2...0..2...... ~AT

Perez v. becca 32 Cal. 24711, 198 P.2d 17 (1948) 2% 21;

. 26

Peterson v. Greenville, i? 2) ee 8, 13, 14, 26 .

Pinson y. State, 28 Fla. 735, 9 So. 706 (1907) ................ ee

Plessy v. Ferguson, 163 U.S. 030... n Staderleicies deaone 13, 20

Scott v. Georgia, 39 (fa. 321 (1869) eect 2

Scott v. Sanford, 19 How. 393 —....000000.........-. AAR Rowe 24

Shelley v. Kraemer, 334 U.S. 1 We SRA LADO CA 14, 26

Skinner. v. Oklahoma, 316 U.S. 585 ...0.0..c cece 19

State v. Jackson, 80 Mo. 175 (1883) 20000... ele anaes 21

State v. Pass, 59 Ariz. Pie 121 F. 2d 882 (1942) Crate 20

Steele v. Louisville & N. R. Co:, 323 U.S. 192 200. 13

Thomas vy. State, 39 Fla. 437, 22 So. 725 (1897) -........... Ba.

Thompson v. Louisville, 362 U.S. 199 ............---.---.-+--. 28 -

‘Thompson's Estate, In re, 149 Fla. 42, 199 So. 392

(1940) eerie 17

Wall v. Altbello. 49 So. 2d 532 (Fla. TE ie lectcrmnevcnnnine 25

Watson v. Memphis, 373 U.S. ae Ga ttabets soa cs ceene 26

Whitehead v. State, 48 Fla. 64, 37 So. 302 (1904) _..... 11

- Wildman v. State, 157 Fla. 334, 25 So. 2d $08 (1946) ....10, 11

Williams v. Bruffy, oth oko ee ee eannten 2

Wright v. Georgia, 373 ELS. 284 ecteceresy Shr toes Ri neees 13, 26

SraTUTES

Ala. Code, 1940, $301(31e) _............. dicing tse ko 14

Fia.. Beet; Bam. TE, BOGR, Y9} yt, 2neaes ene cereeescsce spears Taaeen D5

F.S. A. Constitution; Deelaration of Rights, Wd ss bncucve ' 18

F. S. A. Constitution, et. 26, 96 5k... ite et 15

BLS! A. 331. eee Ween tire Gi Ai Mien Sharan net 20

F.S, A. £741 REL ERE COR Ene eR A

, PAGE

Me at Gas) eeatedenmenmeenpmnsentem ie were 3,8, 15

Fla, ici Dai SSBB GI oiecacsie cxoresscessen ove ecrooesnennvoretinres 16

Fla. Stat. Anno., \741.14 200... ERE en nets Fe oho a 16

Win. Stat. Asmo., S740 ED... 5-ccsccee etsy toeqeesemes OST sl -16

Fla. Stat. Anno., $741.16 100... te 16

Oe A SUMED iccietics ches Cee ee ee Se

F. S.A: §79601 _...-1..... SORES. Aen MM ee Pee ee

fe le Ge’. eAeeareeeaents ae Nite RN Toten ‘JR

Oe A III ooo ecnisvscasccsvcvrntasenstmomrsiinioenegmpeaics sn et a 11,13

vs A. STs... oe eh en Men le oa 11 :

B.S. AL §798.05 ines Fs Eee en

: 11, ages 13,27

S.C. Code, 1952, 5 5377 Late gunaenticec ieee De eviccnntaeirs win 14

28 U. 8. C. $2572) .......--: Sue Pek Eres RRA as hes ?

aU at, et... Eben Sebelet eae Rar ak eaene ie 26

OTHER AUTHORITIES

Beals and Hoijer, An Introduction to Anthropology

(1953) SAIN NI TY ee an aaa cia ennacereheepa cones 230

46 Cong. Globe, part 4, p.. 3042 (39th Cong., Ist Sess.) 2o

- Dohzhansky, “T he Raee Coneept in Biology,” The Sct-. .

: entific Monthly, L I (Fe b. 1941) .22.n.-neeereceenenccneqeenensenees an

Hankins, The Racial Basis of C iviliz sation (1926) !...... . 2

Kroeber, Anthropology CO cients Mt oF

Montague, An Introduction to Physte al Sickpnieleate

Li) | ere ES Sea Oe es Ne NR Oe ME Atos RON ek 8 BB

Montague, Man's Most Dangerous Myth: The Fallacy

of Race (4th vd. p ERE RISER etter eo 1.22.23. D

Note, 58 Yale L. J. 472 (1949)... 2 eee ert 23

Note, “Rights of Hlegitimates U nder Federal Stat-

utes,” 76 Harv. L. Rey, 337 (1962) Oi Se PR ae Latenas 2

. ae _ PAGE

Rand-MeNally, Cosmopolitan World Atlas ........... ae

UNESCO, “Statement on the Nature of Race and Race

.Differences—by Physical Anthropologists and Genet-

icists, September 1952” 2:....--.-------1----------eereeeeettereeeteeee 22

Weinburger, “A Reappraisal of the Constitutionality of

Miscegenation Statutes,” 42 Corneli L. Q. 208 (1907) 22:

Yerkes, “Psychological Examining in the U.S. Army”,

‘15 Mem. Nat. Acad. Sei. 705 (1921) -....... oy a ecaeisioks ae

”

IN THE

Supreme Court of the United States

OCTOBER Teas, 1964...

No. 11.

Dewry McLavGHLin, etal.,

ae a Appellants.

—Vi— \

FLORIDA.

-ON APPEAL FROM THE SUPREME COURT OF THE STATE OF FLORIDA

—<—

BRIEF FOR APPELLANTS

Opinion Below —

The Criminal Court of Reeord In and For Dade County.

Florida did not render an opinion, The opinion of the

Supreme Court of Florida is reported in 153. Se. 2d. 1

(1963) -(R. 99). .

Pe iy Jurisdiction

Appellants were convieted in the Crjminal Court of Ree

ord In and For Dade County, Florida, on June 24, 1962

of violating Florida Statutes Annotated £798.05. They ap

pealed to the Supreme Court of Florida, contending that

the convictions and the Florida laws involved violated the

equal protection and due process clauses of the Fourteenth

‘Amendment. On May 1, 1963, the Supreme Court of Florida

affirmed the convictions and decided in favor of the validity

of F. S. A. 6798.05 under the Constitution of the United

States (R. 99). Petition for rehearing in the Supreme

‘Court of Florida was denied May 30,1963 (R. 105). |

Appellants filed Notice of Appeal in the Supreme Court

of Florida on August 29, 1963 (R. 106), and a Jurisdic-

tional Statement in this Court, October 28, 1963. Probable

jurisdiction was noted April 27, 1964 (377 U.S. 974). Juris-

diction of this Court on appeal rests on 28 U.S. C. §1257(2).

Williams v. Bruffy. 96 U.S. 176, 182-184. Appellants, more-

over raised substantial questions as to the constitutionality

of their convictions under the Fourteenth Amendment.

Constitutional and Statutory

Provisions Involved

1. Petitioners were convicted of violating 8. A.

§798.05 (Vol. 22, Title 44, p. 277) whieh provides:

8798. 05—Negro man and white woman or white man

and negro woman occupying same room.

“Any negro man and white Woman, or any w hite man

and negro woman, who are not married to each other,

who shall habitually live in and ‘oceupy in the night-

time. the same. room shall each be punished by im-

‘ prisonment not exceeding twelve months, or by fine

not exceeding five hundred dollars.

2. This ease also involves Fla. ‘Const., Art. 16, {24 (Vol

ume 26A, p. 450) +

§24—IJ nte rmarriage of white persons and ne grocs pro-

hibited. . %

All marriages between.a white person and @ negro, or

between a white person and a person of J egro descent

to the fourth generation, inclusive, are hereby forever

~ prohibited. hate }

3. FOS. A. STALL Vol ALA, Title 42, p. 5s):

Q74l. 11... Rarvieets ‘Acton uw rhile and negro pe rsons

prohibited. ‘

It is unlawful for any white male person residing or

heing in this State to intermarry with any negro fernale

person; and it is in like manner law ful for anv white

female person residing or being in this state to inter

marry with any negro male person ; and every marriage

formed or solemnized-in- contravention of the -provi-

sions of this section shall be utterly null and void, and

‘the issue, if any, of such surreptitious ‘marriage shall

be regarded as bastard and incapable of having or re

“eeiving any estate, real, personal or mixed, by inheri-

tance.

4. FS. A. Q74L.d2 (Vol. 214, Title 42, p. 59):

<741.12—Penalty tor intermarriage of white and negro

“persons,

If any white man sha!l intermarry with’ a negro, or if

any white woman’ shall intermarry with a negro, either

or both parties to such marriage shall be punished by

‘imprisonment in the state prison not exce eding ten

vears, or by fine not exceeding one thousand dollars. .

5 BLS. A. §h01 (Vol 1, Title Lop. 14):

y1 01—Definitions.

? (6) The words “negro”, “colored”, “colored per

sons”, “mulatto” or “persons of color”, when applied °

to persons, include every person having one-eighth or

more of African or negro blood.

6. This case also involves Seetion | of the Fourteenth

Amendment to the Constitution of the United States.

Questions Presented

W hether the conviction of appellants violates the equal

protection and due process elausts -of the Pourteenth

Amendment to the United States Constitution, where :

(1) The State has created an offense, F. S. A. $798.05,

expressly defined in terms of. race which: punishes inter-

racial couples for engaging in certain conduct while not. -

punishing such conduct by two persons of the same race?

(2) Appellants ‘were denied a full jury consideration of

’ an ingredient of the, crime, i.e. the absence of a common

law marriage, by jury westeaetions based on Florida’s laws

prohibiting Negroes and whites from marrying?

(3) There was either no evidence to satisfy Florida’s

racial definition in F. S. A. 41 rein gy essential part of

_the crime created by F. S.A. §798.05—or the definition is

so vague and indefinite as to establish no stendard of erimi-

nality?

: Statement — -

Appellants were arrested February 28, 1962 and charged

with having, violated F. S.A. $798.05 in that “the said

‘Dewey McLaughlin, a: a Negro man, and the said Con-

nie Hoffman, also known as Connie Gonzalez, being a white

_ woman, who were not married to each other, did Mabitualy

live in and occupy in the nighttime the same room” (R. 3).

Appellants. were convict ted by a jury and each was sentenced

to thirty days in the County Jail at hard labor and fined

$150.00, plys costs, and in default of such payment to an

additional 30 day term (R. 7-9).

In April 1961, eppeiient Connie Hoffman een residing

in an “efficiency” apartment at 732 Second Street, Miami

Beach, Florida (R. 22). The landlady testified that. ae

_ . hal

first saw appellant Dewey “McLaughlin in either December,

1961 or February, 1962 (R. 23, 25). She que stioned Connie

Hoffman about the identity cof Mr. McLaughlin and was

told he was her husband (R. 3). Appellant Hoffman then —

“signed in” Mr. McLaughlin as her husband (R. 23). Mr.

McLaughlin, born in Honduras, but ‘apparently an Ameri-

ean citizen, was then employed by a Miami Beach hotel

(R. 82). :

The’ landlady claimed that appellants there ‘upon began

living together for a period of ten or twelve days (R. 24,

26). She stated that slie observed McLaughlin showering

in the bathroom one evening, heard him talking’.to appel-

lant Hoffman at 10:00 at night, and noticed his clothing

hanging in the apartment (R. 29, 30, 26). Moreover, she saw

him going in and out of the apartment during this period

(R. 29). Although she claimed to see McLaughlin enter the

apartment every ‘evening, she was not ‘certain that zh in

fact remained there through the night (R. 26, 29, 30).

though she saw McLaughlin leave appellant is aes

apartment at least twice early in the morning, She asserted

that she did not know if he lived there every ‘day during

this period (R. 26, 29, 30). Disturbed by the presence of

a colored man in her apartments, she reported the situation

to the police (R. 23). |

Detectives Stanley Marens and Nicolas Valeriana of

the Miami Beach Police’ Department went to Hoffman's

apartment at 7:15 p.m., February 23, 1962, to investigate a

charge of. neglect of her minor son (R. 35, 44). They

knocked at the door and a man’s voice answere id, “Connie,

come in,” but the door was not opened (R. 51).. Valeriana

went to the back of the apartment and found MecLaughlm

‘leaving through the rear door (R. 70). In the questioning

which followed, McLaughlin admitted that he had been liv-

ing there with Hoffman (R. 46) and that on one, oce: ision.

he had had sexual relations with her (R. 47). The detec-

~*~

tives also observed a few pieces of MgLaughlin’s wearing

apparel in the room (R. 45). Appellant Hoffman came to

the police station where McLaughlin was being held and

while there stated that she was living with him but thought ©

that this was not -unlawful (R. 48). At trial Detective

Valeriana identified her as a white woman, using his “many

personal observations and experiences” as a standard (R.

59). On the basis of ‘his “factual contacts, experiences and

observations,” he characterized Dewey McLaughlin as a

Negro (R. 58, 69).

Joseph DeCesare, a secretary in the City Manager's

Office, testified that while securing a civilian registration

card, McLaughlin stated in January 1961: that he “was

separated and that his wife’s name was Willie McLaughlin”

(R. 74, 75). Dorothy Kaabe,'a child welfare worker in

the Florida State Department of Public Welfare, testified

that in an interview on March 5, 1962,.appellant Hoffman

stated that she began living with McLaughlin as her com-

mon law husband in Septembér or October 1961 (R. 83, 84).

March 1; 1963, an information was filed against appel-

lants charging them with violating F. S. A. $798.05 (R. 3).

Motion to quash the information on grounds that it was

vague and deprived them of \due process and equal pro-

tection of the laws was denied (R. 5, 6). Motions for a

directed verdict arguing that F. S. A. §1.01(6) (defining |

the term “Negro” as-used in F.S. A. $798.05) was tague

(R. 61) and that race remained-unproven were made and

denied (R. 88-89).

The trial judge instructed the jury that in Florida a

- Negro and a white person could not have been lawfully

married, either by common law or formal ceremony (R..4).

{ irs

Appellants were convicted by a jury and sentenced to

30 day jail terms and fines of $150 (R. 7-9).

A motion -for new trial was filed alleging error in the

_court’s failure to quash the information as a violation of

Fourteenth Amendment rights (R. 10, 11) and was denied

(R. 11). .

On appeal to the Supreme Court of Florida appellants

assigned errors relying on the due, proeess and egual pro-

tection clauses of the Fourteenth Amendment (KR. 12).

The Court, in affirming the conviction, discussed only

F. S. A. $798.05 which it found constitutional in light of

Pace v. Alabama, 106 U. S. 588. (R. 99-102). Its jurisdic-

tion derived from the trial court's passing on the validity |

of a state statute (R. 99): |

In the Florida Supreme Court, appellant’s brief also

argued, that the instruction to the jury on Florida*s mis-

cegenation law contravened the Fourteenth Amendment

(Tr. of Record (on file in this Court) 180-183). The State

urged that miscegenation laws were constitutional and that

the instruction could only be harmless error (Tr. of Record |

195-199). Appellants sought rehearing, attempting to se-

cure the Florida Supreme. Court's discussion of this issue

(R. 102-103), but rehearing was denied without opinion

(R. 105). ae by —

Summary of Argtiment

LL:

Appellants were convicted of a crime under an explicitly

racial Florida law, which punishes an interracial couple

for acts which are not: prohibited if committed by persons

of the same race. No other Florida statute, incliding the °

lewdness law (F..S. A. $798.02), contains the identical ele-

ments of the crime defined in F. S.A. ‘798.05 used to con-

vict- petitioners. Florida‘has advanced no justification for

the racial distinctions made by this law. The racial clas-

sification ix unreasonable, and-this Court should strike it

down as it has every other segregation law from Buchanan

vy. Warley, 245 U. S. 60 to Peterson v. Greenville, 373 U.S.

244. This case is different from Pace v. Alabama, 106 U. S.-

583, but if the reasoning of Pace extends to cover this case.

Pace. should be overruled as: inconsistent with many sub-

sequent decisions in this Court.

‘ II.

The trial court's jury instructions based on Florida's law=

prohibiting interracial marriages (F.S.-A. Const., Art. 16

$24;-F. S. A. §$741.11, 741.12) prevented. the jury from

considering appellants’ possiblé common law marriage. The

“jury instruction was not harmless since Florida recognizes

common law marriage, there was sufficient evidence to go

to the jury on the question, and the state had the burden

of proving that appellants were not married to each other.

The states have power to control many aspects of mar- -

riage, but no power to prohibit marriage on the basis of

irrational discriminations. Florida has advanced no reason .

to support this racial distinction. Arguments advanced by

other states fly-in the face of all scientific knowledge which

rejects the theories of “pure races,” and Negro inferiority.

The miscegenation laws are relies of slavery based on race

‘prejudice. State enforcement of these laws violates the

- Fourteenth Amendment for the same reasons that all segre-

gation.laws have been invalidated. :

ITT.

To convict under F. S. A..4798.05 Florida had to prove

that. McLaughlin was a “Negro” (as defined in F. S. A.

°1.01(6)), and that Hoffman was “white” (nowhere defined

in Florida law). The state made no effort t6 prove race by

reference to the Florida Statutory definition (decreeing |

»* —-

that a Negro is a person Avith “one-eighth or more of Afr

can or Negro blood”), The definition is meaninglessly cir

cular and based on assumptions contrary to scientific fact.

If the definition is taken literally the conviction violates

due process, being based on ‘no evidence of-an element of

the offense, But. Florida: relied on an “appearance” test,

-.sanetioned by the trial judge, using opinion testimony by a.

policeman to prove race. The appearance test Femoves any

pretense of statutory clarity and depends entirely on vary?

‘ing individual perceptions. This standard is far too vague

. to support criminal convictions.. The vagueness of legal

definitions of race vitiates crimes depending upon a per

son’s race. ‘

ARGUMENT

Appellants Were Convicted Under a Law Which Makes

Race an Element of the Crime, Punishing a Negro and

a White Person for Acts Not Prohibited When Done by

- Persons of the Same Race, and Thus Violates the Due

Process and Equal Protection Clauses of the Fourteenth

Amendment.

. " ¢

The statute under which the appellants were prosecuted

: a ‘ aul is : , ra

- and convicted, F. $..A. §798.05, proseribes, the: Habitual

occupaney of a room by an interracial couple.'” As an osten-

sible effort to restrain illicit sexual relations, the statute

might ‘seem to fall within the. state’s traditional power to

1798.05 Negro man and) white woman or white man and Negro

woman occupying same room :

Any negro man and white woman, or any white man and

negro woman, who are not married to each other, who shall

habitually live in and occupy in the nighttime the same room

shat! each be punished by. imprisonment not exceedpg twelve

months, or by fine not exceeding five hundred dollars.”

10 °

punish acts whith affront public morality. Yet, the means

by which Florida purports to serve this goal violate the

Fourteenth Amendment by introducing a racial distinction

into the State's criminal laws, by a statute in which sexual

relations are not even an element of the crime.

Section 798.05 defines a crime that can be committed

only by two persons uf opposite sex, when one is Negro and

the other is white. Appellants submit that no Florida. stat-

ute punishes similar conduct by persons of the same race.

‘But Florida has argued that F. S. A. §798.05 covers the

same act which is punished irrespective of race by F. 8. A.

£798.02 which prohibits (and provides:a greater penalty

for) lewd and lascivious association and cohabitation.* The

relevant Florida decisions, ‘though, leave little room for

such an interpre tation.

There are three elements of the. offense created by

7TYS.00: 1) there must be a habitual: oecupaney of and

living in a room in the nighttime, 2) the offenders must be

a Negro man and white woman or white man and Negro -

woman, and 3) they must be persons who are not married

to each other. Parramore v. State, 81 Fla. 621, 88 So. 472

(1921); Wildman v. State, 157 Fla. 334, 25 So. 2d 808

(146) ; and see charge to jury at R. 93. Sexual relations

between the parties are not a necessary element of the

crime created by. (798.05. Parramore v. State, supra.

On the other hand, it is well established that to convict

‘Tor Jewd and lascivious association and = eohabitation

“FUS.A. §798.02. Lewd poe lascivious behavi ior.

If any man and woman, not. being: married to cach other,

lewdly and lasciviously associate and cohabit together, or if

any man or woman, married or unmarried, is guilty of open.

“and gross lewdness and lasvi ivious behavior, they shall be pun-

ished by imprisonment in the state prison not exceeding two

years, or in the county jail not exceeding one year, or by fine

not exceeding three hundred dollars.”

11.

(4798.02), the state must prove “both a lewd and lascivious

intercourse and a living. together as in the conjugal rela-

tion between husband and wife.” Wildman vy. State, supra, -

25 So. 2d at 808; Pinson v. State, 28 Fla. 735, 9-So. 706

(1891); Whitehead v. State, 48 Fla. 64, 37 So. 302 (1904) ;.

Luster vy. State, 23 Fla. 339, 2 So. 690 (1887); Cloud v.

State, 64 Fla. 237, 60 So. 180 (1912); Langford v. State,

124 Fla. 428, 168 So. 528 (1936). Sexual intercourse, is

very definitely an element of this crime, and single or

occasional acts of incontinence will not sustain. a con-

‘viction under (798.02. Wildman v. State, supra; Penton

‘'y. State, 42 Fla. 560, 28 So. 774 (1900); Thomas vy. State.

39 Fla. 437, 22 So. 725 (1897).

Clearly, §798.05 (living in the same room) and $798.02

(lewdness) are distinct both on their face and as anter-

preted. Florida, in fact, has simultaneously prosecuted

persons under both statutes, and in reversing both eonvic-

tions the Florida Supreme Court gave no indication that

it regarded the laws as identical.’ Wildman v. State, 157

Fla. 334, 25 So. 2d 808 (1946). It is notable that in reversing

the convictions. under both statutes in Wildman, supra,

the case was remanded for new trial without the slightest

intimation that the state could not again proceed on both

charges. Wildman is apparently still good law; it was fol-

jowed in Callen vy. Florida, 94 So. 2d 603 (1957).

Florida, thus, has created a specific crime, relating ex

clusively to interracial couples. Mere proof that an un-

married man and woman of the same race habitually ocgu-

ingless gesture of duplication. It has not done so. Surely the

legislature had some difference in mind when it set different pun-

ishments in §798.02, and §798.05. Compare §798.03 (fornication

generaily: 3) months} imprisonment and #30 fine) with §798.04

(white person and Negro living “in adultery or fornication” : 12

months imprisonment and $1,000 fine), ;

pied a room in the-nighttime would not establish a crime

under Florida law.‘

By labeling “criminal” conduct that might be otherwise

. innocent, merely because the parties are of different races,

Florida has violated its duty to afford to all persons the

equal protection of the laws. “Distinctions between citi-

zens solely because. of their ancestry are “by their very

nature odious to a free people whose institutions are

founded upon the doctrine of equality.” Hirabayashi v.

United States, 320 U. S. 81, 100. And see, Norematsu v.

United States, 323'U. 8. 214, 216; Brown v. Board of Edu-

cation, 347 U.S. 483; Hamilton v. Alabama, 376 U.S. 600;

Anderson v. Martin, 379 U.S. 399.

Florida, however, has not advanced (and cannot advance)

any constitutionally acceptable ‘basis for making the con-

duct described by ¢798.05 a crime only when persons of dif-

ferent races are involved. Surely, there is no justification

for eliminating solely on a racial basis the ‘requirements

of proof that the state must meet in other crimes against

public morality. The racial classification is unreasonable,

is not clearly related to any legitimate governniental ob-

jective, and violates the due. process and equal protection

clauses of the Fourteenth Amendment. Cf. Buchanan v.

Warley, 243 U.S. 60; Bolling v. Sharpe, 347 UV. S. 497.

“4Cf. Grice v. State, 76 Fla. 751, 78 So. 984 (1914), where de-

fendants were acquitted of adultery (F.S. A. $798.02) since there

was no showing of sexual relations though there was evidence they

frequently slept in the same room along with others. Such conduct

would seem covered by a charge under F.S. A. $798.05 if persons -

of different races engaged in it. The Court said that the “mere

. living together of two persons of opposite sexes, either of whom

is married to a third person, does not constitute the offense of

’ living in‘ah open state of adultery, but there must be acts of sexual

_intercourse between them to constitute adultery..." The adul-

tery law (§798.01) is the ‘analogue of the lewdness law ‘( $798.02)

for persons married to others.

; we

As early as 1896, this Court said that criminal -justice

must be administered “without re ference to consideration

based on race,” Gibson v. Mississippi, 162 U. S. 565, 591.

From Buchanan v. Warley, 245.U.S. 60, to Peterson v.

Greenville, 373 U. S. 244, the Court has repeatedly struck

down laws attempting to require separation of the races

by imposing ‘criminal iyi x. - See e.g. Dorsey vy. State?

Athletic Commission, 359 U.S. 933, affirming 168 F. Supp.

"149 (BE. D. La. 1958) stlacienaiial boxing a crime; held,

unconstitutional); Holmes v. Atlanta, 350 U. S. 879, re-

versing 223 F. 2d 983 (Sth Cir. 1959) (desegregated golf

‘matches. criminal; held unconstitutional); Brown v. Board.

of Education, 347 U.S. 483; Gayle v. Browder, 352 U.S.

903, affirming 142 F. _— 707 (M. D. Ala. 1956); John--

son V. V irginia, 873 U.S. 612 Lombard v. Louisiana, 373

U.S. 267; Ww right Vv. ae 373 U. 8. 4

-In short, “race is a an irrelevance” (Ed-

wards vy. California, 314 U. S. 160, 185), and“... dis- °

criminations based on, rac bap ne are obviously irreley yr

and invidious.” Steele y. Louisville # WM. B. Co,, HB.

192, 203; ef. Abington School District v. Schempp, 374 U. S:

203. (Justice Stewart dissenting) ; Goss v. Board of Educa-

‘tion, 373 U. S. 683, 687-688. In the words of the first .Jus-

tice Harlan, the Constitution ix “color blind,” Plessy v.

Ferquson, 163 U. S. 587, 508 (dissenting opinion). The

decision below is in the teeth: of this Court's repeated hold-

ings that racial ‘segregation laws. are invalid. ;

hang case is somewhat different from Pace vy. ‘Alabama,

106 U. S. 583, where the conduct Alleged was criminal irre-

spective of the race of the parti#s, although greater penal-

ties were proscribed when the offenders were not of the

same race, Here no penalties are provided for men and

women of the same race who commit the acts mentioned in

F.S. A. §798.05. eso S oe penalties are inflicted

under the fornication law—F. A. $798.03.) But appel-

lants have no hesitancy in urging that Pace should be over-

ruled if its reasoning is thought to extend to this case, and _

to support the distinction made here. The Pace decision

rested on thée.notion that the state can treat an act differ-

ently when committed by persons of different races, and

punish it as a “different” crime. The silent premise is that

the states can segregate the races. Pace standg as an iso-

lated vestige of the “separate but equal” era inconsistent

with the entire development of the law of equal protection

since Brown.v. Board of Education, 347 U. 5. 483, or per-

haps even since Buchanan vy. Warley, 245 U.S. 60. This

Court has cited Pace only two times in the eighty- two

years since it w as decided and race disc rimination was not

an issue in either of those cases.’ It ought to be overruled.

Probably no segregation law would ever have been invali-

dated if this Court. followed the reasoning of Pace that

equality is assured merely because Negro and white cq-

defendants are liable to the same punishment. Indeed, most

segregation laws struck: down in recent years have been

indiscriminately applicable to both Negro and white vio-

lators of the segregation commands,’ but have neverthe-

‘Jess been invalidated on the ground that states serve no

legitimate governmental functions by segregating the races.

Cf. Peterson vy. Greenville, 373 U.S. 244: and see Goss v.

Board of Education, 373 U. S. 683, 687-688; Shelley v.

Kraemer, 334 U.S. 1, 22.

* See, e.g., Moore v. Missourn, 159 U. S. 673, 67% (1895) ; Hill v.

United Statcs ex rel. Weiner, 300 U.S. 105, 109 (1937).

-* See, for example, the segregation laws iereaieaae in Brown v.

Board of Educaiton (Briggs v. Elliott), 347 U.S. 483 (5. C. Code

1952. §5377). and Gayle v. Browder, 352 U.S. “oon. affirming 142

F. Supp. 707, 710 (M.D. Ala. 1956) (Ala. Code 1940, §301 (3Je) ).

| | a. i. a ee

Appellants Were Denied Rights Under the Due Proc-

ess and Equal Protection Clauses of the Fourteenth -

Amendment by Florida’s Miscegenation Laws Which

Had the Effect of Requiring the Jury to Disregard Evi-

dence of a Common Law Marriage If It Decided That

One Appellant Was White and That the Other Was

Negro. _ Rg Nae AS . 2 :

The trial court’s instructions to the jury based on Flor-

‘ida’s miscegenation laws deprived appellants of the possi-

bility of acquittal on the ground of common law marriage

because of race. As the language of the statute..makes

clear, marriage of the parties absolutely vitiates any prose-

cution based upon F. S. A. $798.05. The trial court, how-

ever, instructed the jury so, as-to effectively prohibit it

from finding that appellants were married if. it found that

one was white and the other was Negro.’ This instruction

was required by Florida Constitution, Art. 16, $24," and by

F. S. A. §§741.11° and 741.12," which prohibit and penalize

marriages between white and Negro persons.’"

‘In charging the jury the judge said (R. 94):

“I further instruct you that in the State of Florida it is

unlawful for any white female person residing or being in

this state to intermarry with any Negro male person and every

marriage performed or solemnized in contravertion of the

above provision shall be utterly null and void.”

*“94 Intermarriage of white persons and negroes prohibited

Sec, 24. All marriages between a white person and a negro,

or between a white person and a person of negro descent to

the fourth generation, inclusive, are hereby forever prohibited.”

"©741.11 Marriages between white and negra persons prohibited

It is unlawful for any white .male person residing or being

in this state to intermarry with any negro female person ; and

it is in like manner unlawful for any white female person

residing or being in this state to intermarry with any. negro

male person; and every marriage formed or solemnized in

bak

Before dealing with the constitutionality of the muis¢e-

genation laws, we shall treat the state’s argument that the

jury instruction was harmless even if erroneous ‘and that

the validity of the -miscegenation laws may not be decided

in this case. The error was harmful, and several factors

lead to the conclusion that the binding jury instrnetion may

have deprived appellants of an’ opportunity for acquittal.

First, Florida-gives full recognition to common law mar-

riage and accords it the same legal incidents as a formal

marriage. Chaachow Vv. Chaachou, 73 So. 2d 830 (Fla.

1954); Navarro Inc. v. Baker, 54 So. 2d 59 (Fla. 1951).

Indeed, in this case the trial judge instructed the jury as

to Florida law on common law marriage (R. 94). This

implies that he deemed the marriage issue sufficiently in-

_ volved to require the jury to ‘decide it, if it found that ap-

pellants: were of the same race. i |

Secondly, the evidence taken in its most favorable light

-tends to establish that appellants had contracted a common

~ contravention of the provisions of this section shall be utterly

null and void, and the issue, if any, of sueh surreptitious

marriage shall be regarded as bastard and incapable of: having

or receiving any estate, real. personal or mixed, by inherit-

ance.

“741.12. Penalty for intermarriage of white and negro. persons

“If any white man shall intermarry with a negro, or if any

white woman shall intermarry with a negro, either or both

parties to such marriage shall be punished by imprisonment in’

-the state’ prison not exceeding ten years, or by fine not ex-

ceeding one thousand dollars.” 2

‘1 In addition, Florida prohibits county’ judges from issuing mar-

riage licenses to Negro-and white ¢ouples (F. S. A. §741.13), and

ministers and other persons from petforming a ceremony of mar-

riage for an interracial couple, (F..S. A. $741.15). The penalties

‘for violations are respectively 2 years imprisonment and $1,000

fine (F.S. A. §741.14) and one year and $1,000 (F.S. A. §741.16).

17°

‘law marriage. There was enough evidence elicited from

the State's witnesses to create an inference of common-law

marriage so as'to constitute a jury question.

Although there was testimony that McLaughlin had in

-January 1961 made a statement that he’ was “separated”

from Willie’ May McLaughlin (whose last address he did

not know) (R. 74), there was no explanatory or corroborat-

ing evidence hefore the jury indicating a prior legal mar-

riage, or that a.prior wife was still alive, or that there

-had been no divorce during the intervening year before this

charge was brought. Appellant Hoffman held herself out

in conversations with her landlady and in “signing in” at

the apartment as being married to McLaughlin (R. 23).

She did the same thing in conversation with a welfare

worker who testified that appellant said that “she -began

‘living with Mr. MeLaughlin.as her common-law husband”

(R. 84). Whatever the effect of the other statements men-

tioned by the welfare worker—who seemingly did not «is-

tinguish between a “ceremonial” marriage and a “legal”

one—any conflicts or inconsistencies should have been re-

solved by the jury. All of these matters might have been

weighed by the jury in appraising. the evidence if the

instruction had been different.

Statements by the parties to cach other of present and

binding intention to be married effect a common law mar-

riage in Florida. LeBlanc v. Yawn, 99 Fla. 467, 126 So.

789 (1930): In re Thompson's Estate, 145 Fla. 42, 199 So.

352 (Fla. 1940). The testimony of the parties that they

uttered to each other words of present intention provides

the best-evidence of common.law marriage. But, where the

best evidence cannot be obtained, reputation and cohabita-

tion will raise and support a presu nption of common law

marriage, Le Blanc v. Yawn, supra. Appellants did-not tes-

tify and could riot be required to, as they enjoyed constitu:

tional privileges against self incrimination in this criminal

ae =

Is Mier

proceeding. F. S. A. Const., Declaration of Rights, $12; see

also Malloy v. Hogan, —— U. 5. , 12 L. ed. 2d 633.

Since their own testimony—the best evidence—was there-

-fore not available, testimony as to reputation and cohabita-

tion could have sufficed to satisfy a jury.

Thirdly, the burden was on the State: to demonstrate

beyond a reasonable doubt that appellants were not mar-

_ ried. Although the attorney general has argued that Florida

cannot be forced to prove a negative and that marriage

constitutes an affirmative defense to be proved by the

defendants, Florida law seems to be otherwise. In his

charge the trial judge listed non-marriage as one of the

elements to be proved (R. 93). In Orr v. State, 129 Fla:

398, 176 So. 510, 511 (1937), where defendants were prose-

cuted under a law punishing “twJlhoever, not standing in

the relation of husband or wife . . . maintains or assists the

principal or accessory before the fact or gives the offender

any other aid, knowing that he has committed a felony

_..", the court held that the burden of proving the non-

existence of common law marriage rested upon the state.

Well-settled rules of Florida practice, moreover, require

the state to prove each and every element of the offense

- and the allegations in the information.- See, Campbell v.

State, 92 Fla. 775, 109 So. 809 (Fla. 1926) ; Lewis v. State,

53 So. 2d 707 (Fla. 1951). The information filed against

appellants charged them with “not being married” (R. 3)...

Thus the constitutionality of the miscegenation law is

involved. This Court has never ruled on the issue. Pace

y. Alabama, supra, did‘not involve a marriage. Although

the statute in Pace forbade intermarriage (as well as

adultery and fornication) no charge of intermarriage was

- made. No decision on the merits of this issue was rendered

in either Naim v. Naim, 350 U. 5. 891, app. dismissed 350.

U. S.985, or Jackson v. Alabama,.348 U. S. 888 (denial of :

certiorar) ).

| 19

¢ ’ :

The states have traditionally exercised a great degree of

control over the institution and inci idents of marriage. Yet,

in this matter, as in others, the state’s power is not: un-

trammelled, but must yield to the constitutional strictures

of due process and. equal protection. Cf. Meyer v. Ne-

braska, 262 U..S. 390. The right to marry is a protected

liberty under the Fourteenth Amendment; it is one of the

“basic civil rights of man.” Skinner v. Oklahonia, 316 U.S

935, 541. In Meyer v. Nebraska, supra, the Court declared

(262 U. S. 390, 399) : |

While this Court has not attempted to define with

exactness. the liberty thus guaranteed {by the Four-

teenth Amendment], the term has: received muc h econ-

sideration, and some of the included things have been

definitely stated. Without doubt, it denotes not merely

freedom from bodily restraint, but also the right of

the individual to... marry, establish a home and bring

up children. . . | |

The right to choose one’s own husband or wile is clearly

# right going to thy very heart ‘of personal liberty and

freedom. A government that interferes with personal

choice.in marriage is regulating one of the most vital areas

of its citizens’ lives. The due process and equal protection

clauses surely prevent the states from engaging in irra-

tional discriminations in this vital area of personal

liberty.’ pte

Thervfore, it is not enough for Florida to insist that it

can, Without lim*s, abridge the liberty of persons to marry

under the guise of the police power. Who would doubt, for

'2C¢, Perez v. Lippold, 32 Cal. 2d 711, 198 P. 2d 17, 19 (1948):

“Marriage is thus something more than a civil contract subject

‘to regulation by the state; it is a fundamental right of

free men. There ean be no prohibition of marriage except for

an important social objective and by reasonable means.”

am.

example, that Florida could not validly ban marriages -be-

tween Republicans and Democrats, or between redheads

and brunettes. The states:cannot prohibit marriage on any

irrational basis they choose. In prohibiting marriage on

a racial basis, Florida has advanc ‘ed no rational justifica-

tion for the discrimination effec ted.

' But while it hax advanced no reasons, those which it

might be expected to bring forth in an effort to validate.

-its miscegenation laws are plainly suspect. On their face,

these racial laws run counter to the “eolor-blindness” of:

\ the Constitution... Plessy v. Ferguson, 163 U, 8. 537, 908

“(dissenting opinion); cf. Aorematsu v. United States, 323

US. 214.

Some courts. have upheld miscegenation statutes, predi-

cating their reasonableness on beliefs in the value. of

“racial purity.” It has been said that a — is pre-

venting the mixing of “bloods.” State v. Pass, 59 Ariz.

16, 121 P. 2d 882 (1942). In Lonas v. Stele. 50 Tenn. 310,

311 (1871), tye Court stated: ‘

The laws of civilization demand that the races be kept

apart’ in this country. The progress of either does

not depend on/an- admixture of blood.

| Intermarriage would be] a calamity full of the sad-

dest and gloomiest portent... .- .

A Ge orga court announced that:

: Such {moral and social] equality does not exist and

never can.. The God of nature made it otherwise, and

.. no ‘human law can produce it and no human tribunal

“an enforce it... . From ‘the tallest, archangel in

Heaven, down to the meanest reptile on earth, moral

and social inequalities exist and must continue to exist

through all eternity. (Scott vi Georgia, 39 Ga. 321, 326,

(1869).)

Some courts have found a justification for these laws in

the state's power to-preserve and ensure the health of their

citizens, as Missouri's court did in 1883" and as a Georgia

court did in 1869.

Clearly all of these grounds for miscegenation’’ laws

rest on theories long deemed nonsensical throughout the

’ world’s community of natural scientists. The idea of “pure

races” has long been abandoned by science. The distin.

guished American geneticist: Theodosius Dobzhansky has

said:

The idea of a pure race is not even a legitimate ab-

straction; it is a subterfuge used to cloak one’s igno

rance of the phenomenon of racial variation. (Dob-

zhansky, “The Race Concept in Biology,” The Scientific

Monthly, LIL (Feb. 1941), pp. 161-165.).

“It is stated as a well authenticated fact that if, the issue of

a black man and a white woman and a white man and a black

woman intermarry, they cannot possibly have any progeny, and

such a fact sufficiently justifies those laws which forbid the inter-

marriage of blacks and whites... Stete v. Jackson, 80 Mo. 175,

179 (1883).

‘The amalgamation of the races is not only unnatural, but is

always productive of deplorable results. Our daity observations

show us, that the offspring of these unnatural connections are gen-

erally sick and effeminate, and that they are inferior in physical

development and strength to the full-blood of either race. :

Such connections never elevate the inferior race to the position

of superior, but they bring down the ‘superior to that of the inferwor.

They are productive of evil, and evil only, without any correspond.

ing good.” (Emphasis added.) Scott v. Georgia, 39 Ga. 321, 323

(1869). .

15 Even the word “miscegenation,” to refer to intermarriage, was

reportedly invented as a hoax in an 1864 political pamphlet con-

nectéd with a presidential campaign. See discussion ia Montagne,

Man’s Most Dangerous Myth: The Fallacy of Race, 400 (Ath ed.

1964).

22 °

And see the many scientific authorities rejecting the “pure

race” idea collected in Weinberger, “A Reappraisal of the

Constitutionality of Miscegenation Statutes,” 42 Cornell .

L.-Q. 208, 217, n. 68."".

The 1952 UNESCO Statement On The Nature of Race,”

prepared by distinguished natural scientists from around

the world, concludes:

There is no evidence for the existence. of so-called

“pure” races. Skeletal remains provide the basis of

our limited knowledge about earlier races. In, regard

to race’ mixture, the. evidence points to the fact that

human hybridization has been going on for an indefi-

nite but considerable time. Indeed, one of the processes

of race formation and race extinction or absorption is

by means of hybridization between races. As there is

no reliable evidence that disadvantageous effects are

produced thereby, no biological justification exists for

prohibiting intermarriage between persons Of different

races.

Similarly, other pseudoscientifie props for racism, includ-

ing the notions of biological disadvantages of race mixtures

and the assumption that cultural levels depend on racial

factors, are completely undermined by modern. scientific

knowledge. For exainple, the’ 1952 ENESCO Statement,

supra, concludes by saying:

16 Sew also Note, 58 Yale L. J. 472. (1949 5.

The full title ise “Statement on the Nature of Race and Race

Differences—by Physical Anthropologists and Genticists, Septem-

ber 1952," published by UNESCO. The statement, published in

numerous publications by UNESCO. (as well as & similar 1950

UNESCO statement of social scientists) is conveniently available

-in Appendix A of Montague, op. cit., 361 et seq. a

“™ The importance of environmental factors in determining cul-

tural levels was noted by the court in Perez v. Lippold,.32 Cal. 2d

TIL, 198 P. 2d 17, 24-25 (194%). Major contemporary research

9) .

- 23 P o

9 We have thought it worth while to set out in a

formal manner what is at present scientifically estab-

lished concerning individual and group differences.

(1) In matters of race, the only characteristies which

anthropologists have so far been able to use effectively

as a basis for classification are physical (anatomical

and physiological).

(2) Available scientific knowledge provides no. basis

for believing that the groups of mankind differ) in their

innate capacity for intellectual and emotional develop.

ment. a :

(3) Some : biological , differences between human .

beings within a single race may be as great or greater

than the same biological differences between races,

(4) Vast social changes have oc ‘curred that have not

been connected in any way with changes in racial type.

Historical and sociological studies thus Support the

View that genetic differences are of little signifjcance

in determining the social and cultural differences be

tween different groups of men.

(5) There is no evidence that race mixture produces

disadvantageous results froma biological point. of

view. The social: results of race mixture whether for —

good or ill, can generally be traced to social factors. 7

And see, generally, Montague, Man's Most Danqerous

Myth: The Fallacy of Race (4th ed. 1964), for.a noted

anthropologist’s full discussion of the most Tycent seien |

tific evidence and research on race.

demonstrating the absence of any ‘relation between race and cul-

‘tural achievement is found in Beals and Hoijer, An sie voekagerd

to Anthropology 195-198 (19535 ; -Hankins, The Racial Basis of

Civilization 367-371 (1926) Kroeber, Anthropology 190-192

(1948); Ashley Montague, An Introduction to P’husical Anthro

pology 352. 381 (1951); Yerkes, “Psychological Examining in the

U.S. Army,” 15 Mem. wat Acad. Sei. 705-742 (1921).

Actually, the miscegenation laws never really rested on

any firm ‘scientific foundation nor were they intended to

serve a seientifie purpose. Miscegenation laws grew out

of the system of slavery and were based on racé prejudices

and notions of Negre inferiority ‘used to justify slavery.

and later segregation.

. Chief Justice Taney said in Scott v. Santord, 19 How.

393, 409 (1857):

(The miscegenation laws} show that a perpep®&l and

impassable barrier was intended to be erected between

the white race and the one which they had reduced to

slavery, and governed as subjects with absolute. and

despotic pawer, and which they then looked upon as so

far below them jn the scale of created beings, that in-

termarriages between white persons and negroes or

mulattoes were regarded as unnatural and immoral.

and punished as crimes, not only in the parties, but in

the persons who: joined them in marirage. . . . This

stiqma, of the decpest deqradation, was fired upon the

whole race. (emphasis added).

As an earlier Alabama court, which found a miscegena-

tion statute unconstitutional, announced in Burns v. State,

48 Ala. 195, 197 (1572) 2° :

It cannot be supposed that this diserimination was

otherwise than. against the negro, on account of his

<ervile condition, because no state would be*so unwise

as to impose disabilitics in so important a matter as

marriage on its most favored citizens, without con-

sideration of their advantage.

The fact that the niiscegenation doctrine relates ta the

easte system, rather than to any design to protect race

1% Burns was overruled in Green v. State, 58 Ala. 190 (1877).

x»

~*)

“purity”, is confirmed by the harsh treatment of the chil-

dren of such marriages.”

These are laws with a “purely racial character and-pur-—

pose,” like the regulations in Goss y. Board of Education,

373 U. S. 683, 688. “Miscegenation laws are “relies of slav-

ery”? and their enforcement by the states violates the

Fourteenth Amendment.” This Court has struck down

numerous segregation laws rejecting all manner of state

claims of Negro inferiority, and claims of the legitimacy

of governmentally required and encouraged racism. Brown

y. Board of Education, 347 U. S. 483; Cooper v. Aaron, 358

racial marriages “shall he regarded as bastards.” It, in addition,

renders them “incapable of having or receiving any estate, real,

personal or mixed by inheritance.” Florida, where the parents are

of one race, has modified the rigors of the common law dealing

with bastardy. F. S. A. §731.29. This latter class of. illegitimate

children can inherit ‘property from the mother. Through acknowl-

edgment by the father they are enabled to inherit through him.

Wall v. Altbello,-49 So. 2d 532 (1950). Yet, issue of interracial

marriages cannot be legitimized and can never inherit property.

Children can ordinarily be legitimized by the subsequent marriage

of the parents. Where, however, the parents are of different races,

F. S. A. §741.11 prevents them from legitimizing their children

in this manner. See also, Note, “Rights of Mlegitimates Under

Federal Statutes,” 76 Harv. L. Rev. 337 1962), for the possible

impact of Florida miscegenation laws on federally created, rights.

Cf. Bell v. Maryland, U. 8S. ——. 12 L. ed. 2d 822, 871,

877 (separate opinion of Justice Douglas). F. S.A. $741.11 is

derived from Fla. Act. Jan. 23, 1832, §§1,.2. Miscegenation laws

now remain in éffect in only nineteen statés; see appendix, infra.

_.*24 Plorida’s belated argument that the Fourteenth Amendment

_is not binding on it because improperly proposed in the Senate is

frivolous. But responsive to Florida’s argument concerning the

vote needed to propose a constitutional amendment, see National

Prohibition Cases, 253 U.S. 350, 386 (two-thirds of those present) ;

ef. Missouri Pacific Railway Co. v. Kansas, 248 U.S. 276. On June

8, 1866, the Senate had a quorum; 44 members wer¢ present; 33

of those present (far more than two-thirds) voted in favor of the

proposed amendment. 46th Cong. Globe, part 4. p. 3042 (39th

Cong., Ist Sess. ).

U.S. 1: Goss v. Board of Education, 373 U.S. 683; John-

son y. Virginia, 373 U. 8. 61; Peterson v. Greenville, 373

U.S. 244; Lombard vy. Loursiana, 373 U. S. 267; Wright

v. Georgia, 373'U. S. 284; Watson v. Memphis, 373 U. S:

526: Anderson v. Martin, 379 U.S. 399: Shelley v. Kraemer,

339 U. S. 1: Buchanan v. Warley, 245 U. S. 60; Gayle v>

- Browder, 352 U. S. 903.% The logic of those cases compels

the same result here. <

The issue is whether under our Constitution Negroes .

will have the same personal liberties and the same status

as citizens given to white Americans. There can be but

one answer if the purposes of the Fourtéenth Amendment

are to be realized in our law. -.

230¢) Perez vy. Lippold, 32 Cal. 2d 711, 198 P. 2d 17 (1948)

(invalidating California's miscegenation law; ‘and see Burns V.

State, 48 Ala. 195 (1872), holding an Alabama miscegenation law

violative of the Fourteenth Amendment and a federal statute

(now 42 U’. S. C. $1981) as well. (As noted above Burns was

overruled by a later Alabama, Court.)

~§

Appellants Were Denied Due Process Because Either

There Was No Proof of Their Race or Fineiae s Racial ~

Definition Is Vague.

In order to convict under F. S. A. 6798.05, Florida was

required to prove beyond a reasonable doubt that appellant

McLaughlin was a, Negro and that appellant Hoffman was

white. Florida law has attempted to define “Negro,” but

there is no attempt at-all to define -a white person. The

definitton of “Negro” in F.S.A. 61.01(6) is:

. (6) The words “negro,” “colored;” “colored per-

”* “mulatto” or “persons of color,” when apphed

to .persoas, include every person having one-eighth or

more of African or negro blood.

sons,

At the trial in this case the prosecution made ro pretense

of proving race (an element of the crime) by reference to.

the statutory rule—"one-eighth or more of African or negro

blood.” Instead, the -prosecutor relied on a policeman’s

opinion as to the-race of both appellants. (R. 65), and his

opinion was admittedly based merely upon observation of

them. ° |

The State: surely failed to satisfy the literal re quirements

of F. S. A. §1.01(6) as to either appellant. This is quite

evident from a colloquy between the Court and counsel.

Defense counsel objected to opinion evidence on appellants’

race saving that the State was hound by the statutory defi-

nition which mentioned: “blood”; that there was no such

thing as “Negro blood”; and that the statute was thus

vague (R. 61). The trial judge, after expressing doubt as

‘to his power to declare a state law unconstitutionally

vague, said that this one had to be given a “common sense”

construction and that it must refer to “anvone whose blood

is 1¢th from a Negro ancestor” (R. 62). When -counsel

pointed out that there was no proof concerning appellant’s

ancestors, the Court said, “Then we come back to the ap-

-pearance again” (R. 63), and ruled that “anybody who had

considerable experience in dealing and associating with

Negro people and white people will be able to testify to

<ome extent at least as to the race of particular persons”

(Id.), and’ that any doubts were going to be “up te the

jury” (Id.). The policeman was then allowed to .express

his opinjon that McLaughlin was a Negro and Hoffman

was white.

It may be noted that the instruction to the jury con-

sisted of a reading of F. S. A. §1.01(6) and a statement

that an element of the crime was:

_.. That one defendant in this case has at least one-

eighth Negro blood,.and that the other defendant has

more than seven-eighths white blood (R.-93).

if the statutory definition and the instruction to the jury

are taken literally so as to require proof about “blood”

(or even if “blood” is taken to mean “ancestors”), there

wag a complete absence of proof of an essential element

of the crime and the conviction denied due process under

Thompson v. Louisville, 362 U. S. 199. There was no at-

‘tempt to prove that appellant Hoffman had more. than

seven-eighths “white blood” or that appellant McLaughlin

had more than one-eighth “Negro blood.” Such an effort.

would:have been doomed to failure. In the first place, the

notion of “Negro blood” and “white blood” rests on the

misconception, entirely contrary to the known facts but

nevertheless common, that there is some identifiable differ-

ence between “Negro blood” and “white blood.” ** Secondly,

26 Sep Montague, op. cit. supra at 287, 288:

“The blood of all human beings is in every respect the same.

with only two exceptions, that is, in the agglutinating prop-

there was still a failure of proof even using the idea that

the statute refers to ancestors. The definition in §1.01(6)

is circular insofar as it uses the notion of “Negro blood”

to define the word “Negro” and meaningless in its’ use of °

citizens of African nations belonging to every ethnic and ;

anthropological classification. But, in any event, there was

no‘evidence to connect McLaughlin with Africa. The rec-

ord shows only that he was born in La Ceiba,”* Honduras

(R. 82). Finally, blood has nothing to do with hereditary.

characteristics. Montague, op. cit., Ch. 14.

The appearance test upon which Floyda ultimately re-

lies removes the last pretense of statuteTy clarity. It totaly

fails to provide a sufficiently definite standard to ‘meet the

requirements of due process. It.is based on witnesses’ and

jurors’ opinions of a person’s race, depends on their shift-

ing and subjective perceptions influenced by ‘stereotypes

erties of the blood which.yields thé four blood groups- and in

the Rh factor. But these agglutinating properties of the four

blood groups and the twenty-one serologically distinguishable

Rh groups are present in all varieties of men, and in various

groups of men they differ only in statistical distribution. This

distribution is a matter not of quality but of quantity. There

‘are no known or demonstrable differences in the character of

the blood of different-peoples, except that some traits of the

blood are possessed in greater frequency by some than by

. others.

os * .

“In short, it cannot be too emphatically or too often:

repeated that in every respect the blood of all -human groups

is the same, varying only in the frequency with which certain

cof its chemical components are encountered in different popu-

lations. This similarity cuts across ,all lines of caste, class,

group, nation, and ethnic group. Obviously,’ then, since all

people are of one blood, such differences as may exist between

them can have absolutely ne. connection with“blood.”

*s A ‘Central American city, far from Africa; Rand-MeNally

Cosmopolitan World Atlas, p. 56.

and conditioned by their differing personal experiences.

In the “never-never land” of the. appearance test, a per-

son's race is ‘not an objective fact at all, but depends en-

tirely on other persons’ views of him. Differences of opin-

‘ion and perception as to the race of persons-are a common,

place of life which inevitably flow from the muttitude of un-

satisfactory definitions. This standard obviously leaves

the jurors to their own devices in determining race on any

basis they choose. To make such a subjective ad hoc evalu-

ation the basis for criminal conviction violates élemental

standards of fairness. To make a man conduct himself on

the basis of a preliminary guess as to what his race will

be in the opinion of some future unknown witnesses and

jurors who will use no precise standards places liberty on

a slippery surface unworthy of a civilized system of crim.

nal law. Cf. Connally v. General Construction Co., 269

U. S. 385. This test is easily as nebulous as the phrase.

“known to be a member of a gang” and the term “gangster”

in the New Jersey law invalidated in. Lanzetta v. New

Jersey, 306 U.S. 451. The vagneness of legal definitions

of race is a substantial reason why the creation of crimes

depending on the race of parties violates the Fourteenth

Amendment. a oe

CONCLUSION -

_ For the foregoing reasons, it is respectfully submitted

that the ieuens below: should be reversed.

Respectfully submitted,

JacK GREENBERG

-JamMes M. Nasait, III

Leroy D. CLarK .

10 Coluinbus Circle

New York, New York

‘Louis H. Pottak

-127 Wall Street

New Haven, Connecticut

Wituiam T. Coteman, JR.

2635 Fidelity-Philadelphia

Trust Bldg.

. Philadelphia 9, Pennsvivania

_ E. Graves, JR.

' 802 N. W. Seeond Avenue

Miami, Florida

Attorneys for Appellants

10),

APPENDIX :

STATES REPEALING MISCEGENATION LAWS

IN RECENT YEARS. ¢

. Arizona (1962):

California (1909) :

Colorado (1957):

Idaho (1959):

Montana (1953):

Nebraska (1963) :

Nevada J1959) :

North Dakota ( 1959) e

Oregon (1251):

South Dakota (1957) :

Ll. Utah (1968) :

Laws 1962, ch. 14, 4, deleting a

portion of Ariz. Rey. Stat. .205-

101 (1956).

Stat. 1959. ch. 146, 41, at 2043,

repealing Cal. Civ. Code 4.60,

69 (1954).

Colorade Laws 57, i], at 354,

repealing Colo, Rey. Stat, {\90- |

1-2, 90-1-8 (1993).

Laws 1959, ch. 44, 41, at 8M, de-

leting Idaho Code Ann. $52-206

(1947).

Laws 19538, ch. 4,.sec. 1, repeal-

“ong Laws 1909, ch. 40, sees. 1-5.

Neb. Sess. Laws, at 7386 (1965),

repealing Rev. Stat. of Neh

e s42- 103, 42-328 (1048).

Ne ve Stat. 1959, at ZIG. 217) re

pealing Nev. Rey. Stat. tit. 11,

eh, 122, Psd (1957).

NLD. Stat. 1055, .ceh. 246, 61. ne-

pealing N.D. Code V1$-05-04,

O. ROS. {106.210 (1963), repeal:

1010, 68-102..

S.D. Sess. Laws P57, eh. Os:

repealing S.D. Code {14.990

(1939),

Sess, Laws 1968, ch. 43, repeal.

ing Utah Stat. (30-1-2 (1903).

STATES REPEALING MISCEGENATION LAWS

IN LAST CENTURY .

1. Iowa: _° Omitted—185I. .

2. Kansas: " -Qmitted—1857.’ Laws c. 49 (1857).

3. Maine: Repealed 1883. Laws p. 16 (1883).

4. Massachusetts: Repealed 1840. Acts, ¢: 5 (1843).

5. Michigan: Prior interracial marriages legalized -

; in 1883. Act 23, p. 16 (1883).

6. New Mexico: Repealed 1886. Laws p. 90 (1886).

7. Ohio: Repealed 1887. Laws p. 34 (1887).

8. Rhode Island: ro gg 1881. Acts, Jan. Sess. p. 108

9. Washington: Repealed 1867. Laws pp. 47-48 (1867).

STATES NEVER -ENACTING STATUTES W HIC H

PROHIBIT INTERRACIAL MARRIAGE

1. Alaska 2.. Connecticut 3. Hawaii

4. Illinois ' 5, Minnesota 6. New Hampshire

7. New Jersey 8. New York’ 9. Pennsylvania

10. Vermont | 11. Wisconsin

10.

11.

STATES. AT PRESENT PROHIBITING. -

INFEL RACIAL MARRIAGES

(PENALTIES FOR INFRACTIONS

; ARE INDICATED)

Alabama: Ala. Const. §102; Ala. Code, Tit. 14, 6360

(1958); 2-7 imprisonment. (idem. ).

Arkansas: Ark. Stat. §55-104 (1947); 1 year imprison-

ment and/or $250 fine (Ark: Stat. (41-106).

Delaware: Del. Code Ann., Tit. 13. (101 (1953); S100

fne in default.of which.imprisonment for not more

than 30 days (Del. Code Ann., Tit. 13, 4102).

Florida: Fla. Const. art. XVI, §24; Florida Stat.

§741.11 (1961) ; maximum 10 vears imprisonment

- and/or maximum fine of $1, 000 (Fla. Stat. S741.12).

Georgia: Ga. Code Ann., §53- 106 (1933) ; 1 to 2 vears ,

imprisonment (Ga. Code Ann. 53-9903).

. Indiana: Ind. 4 Stat. §44-104 (Burns, 1952)s im-

prisonment of 1 to 10 Years and.fine of 100-1000

Ind. Ann. Stat. (Burns. 1952) $10-4222.

Ke ntucky: ky. Rev. Stat. §402.020 (1948); fine of SM)

to $1000 and if violativn continired after conviction,

imprisonine nt of 3 to°12 months (INS. 5402990),

Louisiana: La. Civil Code Art. 94 (Dart. 1045).: 5 years

imprisonment (La. Rey, Stat. Ch. 14, 579).

Maryland: Md. Ann, Code Art. 27, 5398 (1957); um

prisonment from 18 months to ten n years ‘(idei.).

Mississippi: Miss. Const. art. 14, $263; Miss, Code Ann.

6459, (1942); Imprisonment up to 10 years (Miss.

Code Ann. §2000,°1960).

Missourt: Mo, Rev. Stat. [451.020 (1959); 2 years in

state penitentiary ; and/or ‘a fine of not less than S100,

and/or imprisonment in county jail for hot less than

3 months (Mo. Rev. Stat. 563.240).

12.

13.

eae

19,

North Carolina: N. C. Const. art. XIV, §8; N. C.. Gen.

Stat. (51-3. (1953); 4 morths to 10 yéars imprison-

ment (N: C. Gen. Stat: 414-181). ;

Oklahoma: Okla. Stat., Tit. 43, §12 (1961); 1 to five

_years and up to $300 fine (Okla. Stat., Tit. 43, §13).

South Carolina: S. C. Const. art. &, $34; S. C. Code .”

§20-7 (1952); imprisonment for not less than 12

~.«months, and/or fine of not less than $500 {idem.). |

" Tennessee: Tenn.. Const. art. (11), §14; Tenn. Code

Ann. §36-402 (1956); 1 to 5 years imprisonment, or,

on recommendation of jury, fine and imprisonment

’ in county jail (Tenn. Code Ann. §36-403).

Teras: Tex. Rev. Civ. Stat. art. 4607 (1948); 2 to 5

years imprisonment (Tex. Penal Code art. 492). ~

Virginia: Va. Code Ann. §20-54 (1953) ; 1 to 5 years

(Va. Code Ann. §20-59). Si

West Virginia: W. Va. Code Ann. .§4697.

Wyoming: Wyo. Stat. §20-18 (1957) ; $1000 fine and/or

imprisonment up to 9 years (Wyo. Stat. §20-19).

‘

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