Brief for the Appellant — Loving v. Virginia

Supreme Court brief1967

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Sune Cowt of the Unite? tai ans exert

Octosen TrEm, 1966

No. 395

RicHarp Perry Loving, ET vx.,

. Appellants,

. ae

‘Vinci,

Appellee.

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA

BRIEF FOR APPELLANTS

_ Bernarp §. Coen

Pau J.. HmscHKop

110 North Royal Street

Alexandria, Virginia

_ Attorneys for Appellants

Wuuum D.-Zase, _

_ 52 Wall Street. , re

'-New York, New York |

ArtHur L. Berney

67 Winthrop Road

Brookline, Mass.

Marvin M. “KarpaTKIn

Metvin L. Wuur

156 Fifth Avenue

New York, New York

Davin CaRLINER

1424 16th Street, N.W.

Washington, D. C. —

Of Counsel |

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- Preliminary Statement

Statement of tlie “Case

INDEX

Citation to Opinions Below

Jurisdiction :

Constitutional and Statutory Provisions Involved ....

Questions Presented

Summary of Argumertt:

ARGUMENT:

I. The validity of the entire Virginia statutory

scheme prohibiting interracial marriage is at

issue in this case

II. The history of the Virginia anti-miscegeria-

tion laws shows they are relics of slavery

and expressions of racism. penis

Early History ......

Racial Integrity Act“of 1924

III. .Anti-miscegenation laws cause immeasurable

IV. The legislative, history of the Fourteerith ;

Amendment does not exempt anti-miscegena-

tion laws from its application

_ PAGE

PAGE

‘'V. The Virginia anti-miscegenation laws are

racially discriminatory and deny —_—

equal protection of the laws . 31.

VI. The Virginia cntpiengeation laws violate

the due’ process clause pf the Fourteenth

Amendment ...: \ : 38

ConcLusion hcl i 39

Taste OF AUTHORITIES: -

Cases: |

_ Anderson v. Martin, 375 U. S. 399 (1964) 33

Bolling v. Sharpe, 347 U. 8. 497 (1954) ....... 7

. Brown'v. Board of Biteeation, 347 U. S. 483 (1954) ..

| * . 25-26, 29, 31, .

' Buchanan v. Warley, 245 U. ‘s, 60 (1917) 39

Burton v. Wilmington Parking ainemy, 365 U. S.”

* 715 (1961) : 30

Dorsey v. State Athletic Comm., 168 F. Supp. 149

(E. D. La, 1958), aff’d per curiam, 359 U. S. 533

(1959) a . 33

_ Greenhow v. James’ Executor, 80 Va. 636 (1885) ........12, 13

- Griswold v. Connecticut, 381 U. S. 479 (1965) ........3, 38, 39

Hamm v. Virginia State Board: of Elections, 230 F.

Supp. 156 (E. D. at aff’d per curiam, 879 U.S. 19

(1964)

. Hirabayashi v. U. S, 320 U. S. 81 (1943)

Home Bldg. & Loan “Ass'n v. earned 290 U. S. 398,

Lawes : | 3

- 33

utente’ TR EP IRE TEND MES ae al One ee

= ° oes - que

| : PAGE

In re Shun Takahashi’s Estate, 113 Mont. 400, 129

-P. 2d 217 (1942) i 12

Jackson’ v. City and County otSbenver -_ Colo. 196, -

124 P. 24 240 (1942) rae &8

Kinney y. Commonwealth, 71 Va. 858 (1878) .........13, 14

Largent v, Texas, 318 U. S. 418 (1943) .. &

Meyer v. N ébraska, 262 U.'S. 390 ( 1922) 38

MeLaughlin V. Florida, 379 U. 8. 184 (1964) ....14, 29, 32,

33, 34 °

McPherson v. Commonwealth, 69 Va. 939 (1877) ce |

NAACP vy. Alabina, 357 U. S. 449 (1958) as

NAACP v. Button,\371 U. 8. 415 (1963) ....... 39

Naim v. Naim, 197 Va. 80, 87 S. E. 2d 749, vacated

and remanded, 350 U. S. 891 (1955), aff'd, 197 Va. __

_ 734, 90 S. E. 2d 849, appeal dismissed, 350 'U. S.

985 (1956) 11, 34, 36

Nebbia v. New York, 291 U. S. 502 (1934) an ae

‘Norris v. Alabama, 294.U. S. 587 (288) | - 29

Oyama v. California, 332 U. S. 633 (1948) bativenet 33

Pace v. Alabama, 106 U. S. 583 (1883) .... 29,32

Palko v. Connecticut, 302: U. S. 319 } | armen we 38

Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (ise)

(sub nom. Perez v. Lippold) | 38

Shelley v, Kraemer, 334 U. 8. 1 (1948) Sie ae

Skinner. v. Oklahoma, 316 U. S. 535. (1942) _.... 38

Stevens v. U. S., 146 F. 2a 120 (10th Cir. 1944) RS - ©

Strauder v. West Virginia, 100 US. | 303 (1880) 29

alata talent bet ch eeintt ibe Vinh iain en ne nade

. PAGE

Takahashi v. Fish & Game Commission, 334 U. S. 410

* (1948) a.

Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425,

48. E, 2d 364 (1939) ..... 12

“Watson v. City of Memphis, 373 U. 8. 526 (1963) ..... 33

Williams v. Bruffy, 96 U. S. 176 (1877) “S

Yick Wo v. Hopkins, 118 U. 8. 356 (1886) 33

___ United, States Constitution : ‘

~ Fourteenth Amendment .. passim

Statutes: os =

98 U.S. C. §1257(2) 83

42 U. 8. C. §416(h)(1).- ” 12

~Virginia Code Annotated: _

§1-14 (Supp. 1964) passim

§18.1-188 (1950) 14

* §18.1-193 (1950) awe

, §20-50 (1950) -.: »: 23

§20-53 (1950) 23

§20-54 (1950) —_. = passim

" §20-57 (1950) passim

§20-58 (1950) passim

§20-59 (1950) passion

$20-60 (1960) 18

a 13.

- $2253 (1887)

MERON Har a ee

—

2 OT RE

7 - afperengmans:

2 Laws of Virginia 170 (Hening 1823) ....: 17

8 Laws of Virginia 86 (Henig 1823) masewenn’

) Virginia Acts of Assembly, 1877:78, ch. VII, §3 - ees ——

Other Authorities :

. Avins, port) v Manne Laws and the Fourteenth

Amendment: The Original Intent, 52 Va. L. Rev.

1224 (1966) ... 28

Applebaum, Miscegenation Statutes: A Constitutional :

and Social Problem, 53 Geo. L. J. 49 (1965) .. 31-32, 38

Bickel, The Least Dangerous Branch (1962) ~....__ 32

Bickel, The Original Understanding and the ene |

_ gation Decisiop;69 Harv. L. Rev. 1 (1956) .:

Black, The Lawfulness of the Segregation Decisions ;

69.Yale L. J. 421 (1960) 31

Bloch, Miscegenation, Melaleukation and Mr. Lincoln’s ;

Dog (Schaum Publ. Co., N. Y. 1958) rm 2.

‘ Bruce, Economic History of Virginia in the Seven-

teenth Century (MacMillan & Co. 1896) -...........16, 17, 18

Cash, The Mind of the South (1941) 24, 25

_ Cox, The South’s Part in Mongrelizing the Nation

- (White America Seciety, Richmond 1988): . 48 °-

Cox, White America (White America Society, Rich-

mond 1923) aso ¥, 20 -

Cummins & Kane, Miscegenation, The cRstitution

- and Science, 38 Dicta 24 (1961) -. * : 37

. PAGE

z Fried, A a ee Word That Hurts (Saturday

Review, October 2, 1965) 35

Greenberg, Race Relations and American Law 348

> (1959) ; on 12

_. Journal of the Senate of the Commonwealth of Vir- —

ginia (Supt. of Public Printing, Richmond 1924) .... 21

Kaplan, Miscegenation Issue in the Election. of 1864, .

> XXXIV Journal of Negro History 277 (July, 1949) 2

Kelly, Clio and the Court: “An Illicit Love oe 1965

Sup. Ct. Rev. 119 30

Letter to the Editor From Members of the Dept. of

_. Anthropology of Columbia University, New York

Times, December 15, 1964’ ..: , 37

Montagu, Man’ s Most Dangerous Myth: The Fallacy |

of Race (4th ed. 1964) . 35

_ Myrdal, An American Dilemma (1962) ...........24, 25, 26,27

Pettigrew, A Profile of the Negro American (1964) ....24, 25

Pittman, The Fourteenth Amendment: Its. Intended

Effegt on. Ariti-Miscegenation —s 43 N. C. L. Rev.

92 (1964) — .- 28°

_ Restatement, Conflict of Laws §§133-134:(1934) ..... 13

Restatement (Second), Conflict of Laws §132 en

Draft No. .4-1957) :

" Reuter, he American Race Problem: A Study of the ©

Negro (Reviséd at, Thos. Y. Crowel} Co., N. Y.

’ ° “oo

- 1988), ple 16, 17,20

“4

vii

PAGE.

Richmond Times Dispatch, February 17, > 1994, p. 6... 21

Richmond Times Dispatch, February 13, 1924, p. 1 ak

Seidelson, Miscéegenation Statutes and the Supreme |

Court: A Brief Prediction of What the Court Will

_ Do and Why, eu U. L. Rev. 156 (1966) ....... 12 —

Shapiro, Race Mixturé (UNESCO 1965) 87

Smith, Killers of the Dream (1961 ed.) : 25,26 —

| _ Taintor, “Marriage in the Conflict of name, 9 Vand.

L. Rev. 607 (1956) 13-14

The Race Question and Modern. Science: The State-

ment’ of the Nature of Race and Race ‘Differences,

. Article 7 (UNESCO 1952) ; 37

United Nations Universal Declaration of Human .

Rights, Article 16.1 . : 38

‘Wadlington, The tovide -Case:* Virginia’s ‘Anti-

Miscegenation Statute in Historical Perspective, 52

Va. L; Rev. 1189 (1966) ~..2--.s.s 15, 17, 19, 22

Wechsler, Toward Neutral Principles of Constitutional

Law, 73 Harv. L. Rey. 1 (1959) paid 30,32

- Weinberger, A Reappraisal of the*Constitutionality of

Miscegenation Statutes, 42 Cornell L. Q. 208-(1957) ..

IN THE

Supreme Court of the Anited States

- Ocroser Tzrm, 1966

Nov 395

. Ricnarp Perry Lovine, ET UX.,

fe es Appellants,

, v.

' Vircini,

. , Appellee.

ON APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA ~

BRIEF FOR APPELLANTS

° &

Preliminary ‘Statement —

This important case presents the question whether the

United States Constitution invalidates those laws of. Vir-

ginia which prohibit and penalize the marriage of a man

and a woman and their subsequent living together simply

because one of the couple is Negro and the othér is white.

It gives this Court an appropriate opportunity to strike

down the last remnants of - ‘legalized slavery in our coun-

try—the anti-miscegenation laws_of Virginia ‘and sixteen

other states which ban Negro-white marriages. This Court .

has never r ruled on the constitutionality of the anti-misce-

genation laws. No other civilibed country in the world-has

such jaws except the Union of South Africa.

3 Citation to Opinions Below |

The ‘opinion of thé Circuit Court of ‘Caroline County,

. Virginia (R. 8) is not officially reported. The opinion of

the Supreme Court of Appeals of. Virginia is reported at |

206° Va. 924, 147-S. E. 2d 78 (1966) (R: 19-27).

_ —F —- - Jurisdiction ¢

ae y, ‘ i “Z

On January 6, 1959, appellants, who were represented :

by counsél, pleaded guilty and. were convicted in the Circuit

Court of Caroline County of violating Virginia’s anti-

‘miscegenation® statutes. The specific charge in the indict-

ment (R.-5-6) was that they left Virginia and contracted a

miscegenetic marriage in the District pf Columbia with

the intention of returning to and actually returning and

cohabiting as man and wife in Virginia in violation of

Va. Code § 20-58. They were-each sentenced to one year

in jail but their sentences were suspended by Judge Leon

M. Bazile for a period of twenty-five years, upon the con-

dition that they immediately leave Caroline County and

the State of Virginia and not. return together or at the

The term “miscegenation”, derived trom the Latin “miscere!

(to mix) and “genus” (race), was coined in an anonymously pub-.

lished political phlet, “Miscegenation: The Theory of the

Blending of the: Applied to the American White Man and

“Negro”. It was written by Democrats David Goodman Croly and

George Wakeman, primarily in order to use the race issue in the

1864 i Presidential” election by attributing the pamphlet’s favorable

views on racial intermixing to the Republicans. BLocu, MiscEaEna-

TION, MELALEUKATION AND Mr. LINcOoLN’s Doe 37-42 (Schaum Pubi.

Co., N. ¥. 1958) ; S. Kaplan, “Miscegenation Issue in the Election of

1864”, XXXIV Journal of Negro History*277 (July, 1949).

a ek 5) —— . . te = rene - . satin Iisa aaa i Nidal aeaietin PE BR

same time to the county or ‘state for a years

- (R. 6). ‘

On N ovember 6, 1963, appellants filed a Motion to Vacate .

_ Judgment ‘and Set Aside Sentente (R.'7)’ in the Circuit

Court of Caroline County which was denied by an Order

of Judge Bazile on January 22, 1965 (R. 17). :

Appellants then appealed to the. Supreme Court of Ap- o

peals of Virginia which heard the case on- the merits. On

- March 7, 1966, the Supreme Court of Appeals of Virginia

affirmed the convictions of appellants, set aside their sen-

tenees,* and ‘remanded for further sentencing not incon-

sistent. with its opinion (R. 28). However, on March 28,

1966, the Supreme Court of Appeals of Virginia issued an

Order staying execution of its judgment of March 7, 1966,

so that appellants “may have reasonable time and opportu-

nity to présent.to the Supreme Court*of the United States

a petition for appeal to review the judgment of this Court”

(R. 28) (Omitted in printing). :

Notice of Appeal to the Supreme Court of the United.

States was filed in the Supreme Court of Appeals of .Vir-

ginia on May 31, 1966 (R. 29). Jurisdiction of this Court

rests upon 28 U. S. C. $1257 (2). ‘Williams v. Bruffy, 96 °

- U.S. 176 (1877) ; Largent v. Texas, 318 U. S. 418 (1943) ;

Griswold v. Connecticut, 381 U: S. 479 (1965). Probable

jurisdiction was noted December 12, 1966 (R. 32).

* The highest Virginia court ‘held that the condition imposed. by

_ Judge Bazile in suspending the sentences was unreasonable since

cohabitation in Virginia by the Lovings, as man*‘and wife, which

the highest Virginia court termed “the real gravamen of the offense

charged” against them, could be prohibited : ‘without preventing ap-

pellants from returning together to the State.

Constitutional and Statutory Provisions Involved _

1. Petitioners were convicted of violating Va. Cops ANN.

§ 20-58 (1950) (Vol. 4, p. 491), which provides:

§ 20-58. 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 inten-

_ tion of returning, and be married out of it, and after-

wards return to and reside in it, cohabiting as man

and wife, they shall be punished as provided in § 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.

2. This case also involves:

(i) Va. Cope Arn. § 20-59 (1950) (Vol. 4, P. 492), a

_ “provides :

§$20-59.. Punishment for marriage—If any white per-

_ son 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 confine-

. ment in the penitentiary for not less.than one nor

more than five years. — :

. Gi) Va. Covz Ann. § 20-57 (1950) (Vol. 4, p. i), which

provides:

§ 20-57. Marriages vou without decree—All mar-

riages between a white person and a colored person

shall be absolutely void without any decree of divorce

-or other Jogal process.

(ii) Va. Copr Ann. § 20-54 (1950) sca 4, p. 489), which

provides:

§ 20-54. Intermarviage 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 bldod

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 pro-

hibited by this chapter.

(iv) Va. Copz Ann. § 1-14 ‘Copp. 1964) (Vol. 1, p. 12),

which provides :

§$1-14. Colored persons .and Dadlene 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.

3. This case also involves the equal protection and due

process clauses of the Fourteenth Amendment to the Con-

stitution of the Unitéd States.

Questions Presented

1. Do the Virginia anti-miscegenation laws violate the

due process and equal protection clauses of the Fourteenth

Amendment to the United States Constitution? |

2. Can a State, either by its criminal or civil law, con-

- gtitutionally prohibit and penalize a marriage between and

cohabitation by two of its residents because one of them

is ns and the other is white?

Statement of the Case

On or about June 2, 1958, Mildred Jeter, a Negro female,

and Richard Perry Loving, a white male, were lawfully

married in the District of Columbia pursuant to its laws.

There is no dispute here that Mrs. Loving is a “colored

person” and Mr. Loving is a “white person” within the defi-

nitions of those terms in the Virginia Code or that, at all

times relevant to this litigation, the Lovings were rescente

of Virginia (R. 20).

Shortly after their marriage, appellants returned to Vir- _

. ginia and established their marital abode in Caroline

County. On July 11, 1958, warrants were issued charging

_ them with attempting to evade the Virginia ban on inter-

racial marriages (R. 2). Thereafter, a grand jury of Caro-

line County indicted them in the following manner:

The said Richard Perry Loving, being a white per-

son, and the said Mildred Delores Jeter, being a colored.

person, did unlawfully and feloniously go out of the

State of Virginia, for the purpose of being married,

and with the intention of returning to the State of

—e

-__-

;

_. Virginia and were married out of the State of Virginia,

to-wit, in the District of Columbia on June 2, 1958,

and afterwards returned to and resided in the County

of Caroline, State of Virginia, cohabiting as man and

wife against the peace and dignity of the Common-

wealth (R. 5-6).

On — 6, 1959, the aici entered pleas of wally:

and they were each sentenced to one year in jail but their

sentences were suspended, as previously explained, on the ,

condition that they leave Virginia and not return together .

for twenty-five years.

After their convictions and until the summer of 1963,

the Lovings took up residence in the District of Columbia.

Subsequently, they retained counsel who have represented

them in their attempts to reverse the judgment and set

aside the sentences of the Circuit Court of Caroline County

so that they may live peacefully and without fear of legal

prosecution in their home state.

On October 28, 1964, appellants instituted a class action

in the United States District Court for the Eastern Dis-

trict of Virginia, requesting that a three-judge federal

court be convened to declare the Virginia anti-miscegenation

laws unconstitutional and to enjoin the State officials from

_ enforcing appellants’ prior convictions.

On February 11, 1965, the three-judge -federal court

(Judges Bryan, Butzner and Lewis) entered an interlocu-

tory order continuing the matter so that appellants herein

might have a reasonable time to “submit [the] issue |

[therein] to the state courts for final determination.” -

Since the summer of 1963 and during the pendency of all

° 8

court proceedings thereafter and at the present time, the

‘Lovings have continued to reside in Virginia, safe from

further arrest and prosecution only because the three-judge .

federal court’s interlocutory order stated that:

. . . in the event the plaintiffs [Lovings] are icdee

into custody in the enforcement of the said judgment

and sentence, this court, under the provisions of title -

28, section 1651, United States Code should grant the

plaintiffs bail in a reasonable amount during the pen-

‘dency of the State proceedings in the State Courts

and in the Suprete» Court of the United States, if

and when the case should be carried there ....

Summary of ietaeninal

This case challenges the validity of the entire Virginia

statutory scheme prohibiting and penalizing miscegenation.

There is no legal argument of any merit which would

allow Virginia to punish its residents who enter into

miscegenetic marriages “within the State and, on the —

other hand, prohibit Virginia from punishing couples who

go out of the State to evade the anti-miscegenation laws.

_ Furthermore, any holding that the particular evasion stat-

ute, Section 20-58, under which the Lovings were convicted, _

is invalid on some limited ground would not-do justice to

‘appellants because their marriage under settled Virginia

ease law would be void. Thus they would be subject to fur-

ther prosecution for the same acts that have caused the

convictions from which they appeal, namely, the inter-

racial nature of their marriage togethér with their co-

habitation as man and wife in Virginia. Also, they would

suffer the outrageous civil effects’ of being parties to a .

- void miscegenetic marriage: they,would not be able to

inherit. from each other; their tree children would be

deemed illegitimate’; they could lose-Social Security bene-

fits, the right ‘to file joint income tax returns and eve

rights to. workmen’s compensation benefits—alt of which .

are contingent upon a valid marital relationship.

Accordingly, this case requires a determination whether ©

a State, either by its criminal or civil law, can tonstitu-

tionally prohibit and penalize a marriage between two com- ‘-

petent, consenting adults and their cohabitation within such.

State solely because one of them i is Negro and the other

is white.

The Virginid anti-miscegenation, laws were originally

passed primarily for economic and social reasons as méans

to foster and‘implement the institution of slavery. To. a

lesser extent , they were aiso the products of the majority

white group’s racial and religious. prejudices and fears of

the N egro. The present Virginia statutory scheme as. en- _

acted'in 1924 both incorporated many past miscegenation

laws and expanded the prohibitions on interracial marriage.

This legislation, however, was motivated primarily by ra-

cial intolerance and antagonism directed against the Negro,

and sought to preserve only the integrity of the so-calléd

“White Race” for reasons intellectually analogous to

Hitler’s goal of creating a Super =

In light of the history, symbolic meaning and effects of

miscegenation laws, their deleterious social impact on our |

people, both) Negro and white, is immeasurable. So long

as they exist they will continue to perpetuate racial bitter-

ness and constitute an open affront to the dignity -of the

individual Negro American.

A correct appraisal of the: legislative history of the

Fourteenth Amendment shows that anti-miscegenation

laws were not exempted from the application of its broad—

‘guarantees of equal protection and due process of law.

These guarantees were open-ended and meant to be ex- .

pounded in light of changing times and circumstances to

prohibit racial discrimination.

Virginia’s miscegenation laws violate: the ined: protec-

tion and due process clauses of the Fourteenth Amend-

ment. The principle of Brown v. Board of Education, 347

U. S. 483 (1954)—however it is articulated-—controls the

constitutionality of - these laws and. makes .clear their in-

validity under the equal protection clause. Similarly, there

is a constitutionally protected right of marriage which

these laws arbitrarily and capriciously infringe in viola-

tion of due process of the tfw. While the States have an

.interest in and the power to regulate marriages, restric-

tions on: marriage based ‘on rave are constitutionally sus-

pect. The State has the burden to show an overriding

. legislative purpose to justify such restriction. There is no

such purpose to justify a laws.

ae:

J ~

pote an eer neem

-“ who then return and cohabit in Virginia as man and wife.’

_ than one‘nor more than five years, and (ii) their marriages

‘ARGUMENT

The validity of “the entire Virginia statutory scheme

prohibiting interracial matriage is at issue in this case.

The “evasion statute”, Section 20-58, under which appel-

' lants were convicted supplements Virginia’s basic prohibi-

tion of Negro-white marriages celebrated. within Virginia -

' (Va. Code § 20-54); it deals with Virginia residents* who

leave the State with the intention of returning in-order toe

marry in a State permitting Negro-white marriages and

By the terms of the evasion statute, a marriage of such a

couple “shall be governed by the same law as if it had been

solemnized in this State.” Accordingly, such couples are

(i) subject to the same criminal punishment as Negroes

and whites. who marry in Virginia, namely, the penalty

imposed by Va. Code § 20-59 of imprisonment for not less

.are considered void under Virginia law. Va. Code 4 20-57;

Naim v. Naim, 197 Va. 80, 87 S. E.-2d 749 (1955) (In an

annulment action, marriage held void where the Virginia

couple had gone to North Carolina to evade the Virginia

law). Furthermore, the terms “white person” ant“colored

person” in. the evasion statute are comprehensible, if at

* Unlike -“ situation in Naim v. Naim, 197 Va. 80, 87 S.-E. 2d ~

749, ns and remanded, 350°U. S. 891 (1955), aff'd, 197 Va.

734, 90 S. 2d :849, appeal dismissed, 350 U. S. 985 (1956),.

there is no dunes that appellants were residents of Virginia at

the time of their marriage and at all other times relevant to this -

litigation. Thus, there is no question/here of the permissible appli-

cation of the evasion statute to. non-residents of Virginia.

all, only by uge of the definitions in other provisions of

Virginia’s anti-miscegenation laws. (Va. Code § 20-54 de-.

fines “white person” and 41-14 defines “colored person”.)

“Because appellants’ miscegenetic marriage is void under

Virginia law, various outrageous civil effects can result:

one spouse may be prevented from jhheriting from “his or

her mate by other heirs-who prove the forbidden inter-

- racial nature of the marriage (see, e.g., In ‘re Shun Taka-

hashi’s Estate, 113 Mont. 400, 129 P. 2d 217 (1942)); par-

ticipants in such marriages can lose their marital rights

under intestacy and similar statutes, Stevens v. United

_ States, 146 F. 2d 120 (10th €ir.1944), and the benefits of

Social Security (see 42 U. S. G: §416(h)(1),* of joint in-

_ come. tax returns, and of workmen’s compensation—all of

which are contingent upon a marital.relationship. Toler v.

“Oakwood Smokeless Coal Corp., 173 Va. 425, 4.8. E. 2d 364 .

(1939). A husband may desert his mate and their children ©

without the usual legal consequences and apparently free

of any obligation of, support. See generally GREENBERG,

Race RELatTIons AND- AMERICAN Law 348 (1959). ‘The Lov-

ings’ three children may be illegitimate, Greenhow v. James’

Executor, 80 Va. 636 (1885), even though a Virginia stat-

ute legitimatizes the issue of void marriages, and they

"may lose inheritance rights in their parents’ estates.

* For a recent example where a death gratuity usually payable

to 8 widow of a U. 8. military serviceman was not paid because the

validity of anti-miscegenation laws remains in doubt see the letter

of the Assistant Comptroller General of the United States dated

January 6, 1965, which refused to authorize payment of arrears of

- pay and a death gratuity to the Negro widow of a deceased white

soldier because thé validity of their miscegenetic marriage which

' - oceurred in — “eannot be resolved on the basis of the current

judicial decisions . .. ” as quoted in Seidelson, Miscegenation Stat-

utes and the Su e Court: A Brief Prediction of What the

‘Court Will Do and Why, Catuouic U. L. Rev. 156, 157 (1966).

a a

Even if there were no evasion statute (or if some tech-

nical ground could be found to invalidate only the evasion

statute and leave the rest of Virginia’s anti-miscegenation

' scheme in effect), appellants’ situation would not be signifi-

cantly changed. Under Virginia law, their marriage is void’

for both criminal and civil-law purposes because Virginia

follows the established conflict of laws principle that the

state of the domicile of the parties at the time of their .

Marriage will refiise to recognize its validity if the. nar-

riage is offensive to such State’s public policy. Kinney v. —

Commonwealth,* 71 Va. 858 (1878); Greenhow v. James’

Ezxecutor,** 80 Va. 636 (1885) ; See generally RestaTEMENT,

ConrFuict oF Laws §$§ 133-134 (1934); Restatement (Sec-

onp) Conruict or Laws $132 (Ten. Draft No. 4-1957) ;

Taintor, Marriage i in the Conflict of Laws, 9 Vanp. L. Rev.

- | *In’Kinney, the conviction of a Negro spouse of a white woman

for illegal cohabitation with her was upheld by Virginia’ s highest

court even though the couple had been married in Washington,

D. C. which recognized the validity of the marriage. The first Vir-

ginia evasion statute (Va. Acts of Assembly, 1877-78, ch. VII § 3 at

_ p. 302) relating to Negro-white marriages had been enacted but was

not in effect with respect to this case. Judge Christian in his opinion

said that “... without such statute, the marriage was a nullity .. .:

denounced by the public law of the domicile [Virginia] as unlawful

‘and absolutely void ... the law of the domicile will govern in such

case, and when they return, they will ‘be subject to all penalties, as

if such marriage had been celebrated within the state whose public

law they have set at defiance . . . connections and alliances so un-

“natural that God and nature seem to forbid them, should be pro-

— by positive law, and be subject to no evasion.” At 865-66,

. 4

** Ir Greenhow, a miscegenetic marriage valid where performed

in tl _ istrict of Columbia was deemed void under Virginia law in

a case holding the eleven children of such marriage to be illegiti-

mate. This holding with respect to the nullity of such a marriage

was incorporated into a statute in 1887 by means of a provision

that such marriages of Virginia residents outside of Virginia were

to be governed by the same law as if the marriages were solemnized

in Virginia, Va. CopE ANN. § 2253 (1887).

re army ar pee

607, 627-29 (1956). Thus the same civil.effects of the mar-

riage would result and also appellants would be subject to

criminal prosecution for illegai cohabitation,” ‘Ki mney Vv.

Commonwealth, supra, § 18.1-193 (Va. Cope Ann. 1950, Vol. ”

+4, p. 253), or fornication, McPherson v. Commonwealth, 69

Va. 939 (1877), § 18.1-188 (Va. Copz Ann. 1950,.Vol. 4, p.

253), or perhaps both.

The reality of Virginia’s statutory scheme prohibiting

“miscegenation is clear. Both the evasion statute (§ 20-58)

- and the basic prohibition of miscegenetic marriages ({ 20-

54) serve and are necessary to effect the same unjustifiable

purpose; to prohibit and penalize interracial marriages

involving persons who after their marriage reside as man

and wife in Virginia. We doubt that the basic prohibition.

would be invoked against a couple married in Virginia ‘if

they did not cohabit there as man and wife. Of course the ©

evasion statute requires cohabitation as an essential ele-

_ ment of its proscribed crime. Nevertheless, any technical

distinction between the statutes is academic. The .con-

stitutionality of the evasion statute, as applied to ap-

pellants in light of Virginia’s clear public policy against .

miscegenation and the relevant conflict of laws-principle,

cannot be determined separately from a determination of

the constitutionality of Virginia’s civil:and criminal bans

on interracial’ marriages celebrated in Virginia. There is

no constitutional or other legal argument of substance

which would justify allowing Virginia to deny the validity

of an interracial marriage, under its civil or criminal law, .

if such marriage were celebrated in ra pro-

*It should be noted that Virginia has no specific statute pro-

hibiting only interracial fornication or cohabitation. See, e.g., the.

Florida interracial cohabitation statute invalidated McLaughlin

v. Florida, 379 U. 8. 184 (1964).

. re ee re ee arena een Fk SNE TERE TL RANGE OP IRON me, Ag gP

hibiting Virginia from penalizing the marriage if the mar-

riage of Virginia residents took place outside of Virginia. ~

‘Accordingly, a holding that the evasion statute is in-

valid, on some limited ground, without reaching the basic -

question of the validity of Virginia’s bans on miscegenetic

marriages, would seem disingenuous and incorrect under

the circumstances. Of even more importance, such a hold-

ing would not do justice to appellants. Their marital life

has been in continuous legal. jeopardy for over eight and

one-half years and their marriage; under settled Virginia -

law, with or without the evasion statute, is void. Therefore,

- they would be subject to further prosecution for the same.

acts that have caused their prior convictions, namely, the

interracial nature of their marriage together with their

cohabitation as man and wife in Virginia.

Ue I.

The history of the Virginia anti-miscegenation laws ©

shows they are > relics of slavery and expressions of

racism. |

’ To understand that the Virginia anti-miscegenation laws

at isstie here are both relics of slavery and expressions of

modern day racism which brand Negroes as an inferior.

race, it is necessary to ‘consider their history.*

As Professor Wadlington has recently noted,*® it is sur-

prising that ‘Virginia which prides itself on the story of

* Counsel wish to thank Mr. Frank F. Arness for the use of his

unpublished thesis which deals with the history of these laws and |

was written in partial fulfillment of the requirements for a master’s

degree in history at Old Dominion College, Norfolk, Virginia.

o Wadlington, The Loving Case: Virgina’s Anti-Miscegenation

Statute in Historical Perspective, 52 Va. L. Rev. 1189 —

. (Hereafter cited as ““Wadlington” )

~~ , ais -daleinienstidemiedih aniieadentanaaa teat ome

how one of her early white sons married an Indian princess*

_today maintains one of the strictest statutory bans on racial

intermarriage. Virginia has enacted a great deal of anti-

miscegenation legislation beginning in the seventeenth cen-

tury and’ spanning a period of‘nearly three centuries to

1932 when the last enactment on this subject was passed.

Early History

‘The first Negroes arrived in the colony of Virginia in

1619. Their numbers increased slowly. White indentured

servants served as the principal source of manpower in

the early colonial period before plantation owners recog-

nized the value of the Negro slave. See generally Bruce,

' Economic History oF VirGInia IN: THE SEVENTEENTH CEN-

. TuRY, Vol. I, Chap. [IX (MacMillan & Co. 1896). As late as

1673, white servants still outnumbered Negroes by four to

one. Reuter, THe American Race Prostem: A Srupy or

THE Necro 136 (New York: Thomas Y. Crowell Company,

revised ed. 1938) (Hereafter cited as “Reuter”).

Generally, indentured white servants came from the low-

est social strata in England or elsewhere and the Virginia

colonists considered them originally on the same level as’

the Indian slave or servant and the Negro. A principal

difference among persons of the servant class was their

tenure of service; the white servant usually served out a

seven-year contract while the Negro or Indian might be

enslaved for life. As a result of their common status, this

class intermixed to a considerable extent both within and

outside the banns of marriage. Reuter, 134-138.

. If John Rolfe and Pocahontas -were married in Virginia to-

day, they would be guilty of violating the anti-miscegenation law.

Va. Cons ANN. Ss 20-54.

Some of the earliest actions of the colonial govern-

ment involving miscegenation reflected “religious prejudice

against Christian-heathen intermixing. See Bruce, supra, .

‘Vol. II, pp. 109-110 and Wadlington, 1191, However,.

with the establishment of Negro slavery, economic reasons

for restricting miscegenation became dominant. Slave-

owners wanted protection from the loss of their slave prop-

erty through intermarriage with a free white, Christian —

by laws that all offspring of slaves with whites, whether

free or indentured servants, would be deemed slaves.

By the 1660s, illegitimate births from relationships

among Negro slaves and white masters presented prob-

lems primarily relating to the status of the children. A.

1662 Act provided that any child of an “Englishman” and

a “negro woman” should be slave or free according to the

condition of the mother. 2 Laws of Va. 170 (Hening 1823).

This kind of legislation, according to some historians,

led to intentional slave breeding by. slave-owners.

At the time of the 1662 Act, there was nothing to pre-

vent interracial marriages of whites and Negroes. The

colonial society and,the church viewed any such marriages

ina disparaging manner and in some cases mobs may have

acted to apply extralegal punishment to the © couples.

Reuter, 137.

Apparently - social pressure was insufficient to prevent.

such marriages, for in April of 1691, the Virginia Assembly

_ passed the first law proscribing Negro-white marriages as —

part of “An Act for Suppressing Outlying Slaves.” 3

Laws of Va. 86 (Hening 1823). One stated purpose of

this Act was to prevent “that abominable mixture and

spurious issue which hereafter may arise” from interracial

unions, demonstrating that racial prejudice as well as eco-

- nomic reasons led to the early miscegenation laws. The

free white person marrying a Negro was to be banished

from Virginia forever.. (Considering the practical banish.

ment of the Lovings in 1959, Virginia’s policy has not

changed much since 1691.) This same Act* provided that

any English white woman who had a bastard by a Negro

should pay the church wardens fifteen pounds or, in default

-of payment, she would be indentured for a term of five

years. The child in each instance would be bound out by the

church wardens until he or slie reached thirty years of age.

In 1705, the Assembly eliminated the banishment pen- —

alty for miscegenation and instead imposed a six-month

prison sentence, without bail, and a fine. Ministers marry-

ing such persons were also penalized and, to this day,

Virginia punishes a minister who performs such a mar-

riage by a fine, one-half of which goes to the informer.

Va. Cove Ann. § 20-60 (1960).

By the end of Virginia’s colonial period, Negroes with

few exceptions were enslaved. Negro children by a white

father were free or bond accérding to the condition of

the Negro mother. White women, free or bond, were se-

verely penalized for bearing a child from a miscegenetic:

* The primary .purpose of this Act was to authorize the capture

of “negroes, mulattoes and other slaves” who hide “in obscure places

_killing hoggs and committing other injuries to the inhabitants” by

local sheriffs and their deputies who were specifically authorized,

if such slaves “shall resist, run away or refuse to deliver and sur-

render .. . to kill and destroy such negroes, mulattoes and other

slave or. slaves by gunn or any otherwaise whatsoever.” If any slave

were so killed, the owner,was to receive “four thousand pounds of

tobaceo by the publique”. At this time, slaves were legally con-

sidered to be personal property and tregted the same as household

goods, horses, — oxen and hogs. ruee, supra, Vol. II, pp.

99-100.

19.

union and such child was bound out in prescribed periods

of servitude by the parish’ vestrymen. Finally, the leg-

. islature had constructed a law punishing the free white ©

partner of a miscegenetic marriage by both imprjecnmnent

and fine. :

No change of significance occurred until the Code of

1849 in which it was provided that any marriage between —

a white person and a Negro was absolutely void without

further legal process. Va. Cope ch. 109 §1, Vol. I at a

(1849) (now § 20-57).

After the Civil War no essential changes were made in

. Virginia’s anti-miscegenation laws until fhe enactment of

- the Racial Integrity Act of 1924.*' However, the first eva-

sion statute, the. predecessor of Section 20-58 under whieh

the Lovings were convicted, was passed in 1878 to deal

with interracial couples leaving the State to marry in a

jurisdiction which allowed their‘ marriages and then re-

turning-to live in Virginia even though the Virginia courts

had treated such marriages as void without a statute. In

the same year, for the first time, the penalty imposed on a

party to a miscegenétic marriage was made clearly ap-

plicable to the Negro spouse. Also, the penalty was en-

larged to not less than two nor more than five years in the

penitentiary.** Va. Acts of Assembly 1877-1878, ch. VII,

§8 at 302 (now § 20-59). |

* Problems with respect to the definition of racial classifications

and to the civil effects of miscegenetic marriages did occur but have.

no specific relevance here. See Wadlington, 1195-1199. —

** The final Virginia statute on this subject passed in 1932 made

the crime of interracial marriage a felony but reduced the minimum

term of imprisonment to one year. Va. Acts of Assembly 1932, Ch.

78 at 68 (now § 20-59).

20 .

Despite the existence of deterrent legislation, interracial

sexual relationships continued and increased after the Civil

War. Reuter, 141, The rising tide of mulatto offspring

.. and the passing of many of them as whites motivated

a tightening of the definition of N egro and enactment of

stronger anti-miscegenation legislation. In the slave days,

there had been essentially economic motivations for d@ny-

ing ‘Negro slaves the legal right to marry. In fact, as

previously indicated, no criminal penalties were imposed

on the Negro partner of a miscegenetic marriage until 1878.

With the end of slavery, unfortunately, new motivations

arose which'wereé purely racist and based on the theory that

Negroes and a non-whites are members of inferior

races. —

Racial Integrity Act of 1924

' After World: War I, the United States experienced a

period of intolerance and racial animosity expressed in the

spread of all forms of hate ups and super-patriotic

orders with dogmas of “yellow peril”, “mongrelization of

the white race” and “un-Americanism”. In fact, at.the time

-of passage of the Racial Integrity Aet of 1924, racists

predicted the destruction of the white rate if Negro-white .

miscegenation and the tide of immigrants arriving in the

United States each year were not suppressed. Earnest

Sevier Cox, in his book entitled Wurrz AmErIcA (Rich-

mond: White America Society, 1923), posed this alleged

threat to America and suggested federally Supported colo-

. nization and uniform legislation barring the mixing of the

~ races in any form.

White racial superiority, a carry-over in ‘the South from

slavery days, are: had rested primarily on observa-

. >

—

tions by 19th century scientists and questionable Biblical

~ texts. The authority which the new and popular science of

eugenics provided for this concept was eagerly: received in

Virginia. Originally eugenics had dealt_with the breeding

of animals and the disclosure of their heredity traits. Race-

conscious Americans seized upon immature conclusions of

eugenicists and subjected them to an overdose of racial -

pride embodied in jhe concept of “Anglo-Saxonism”. New .

Englanders and Southerners alike talked about “mongrel-

ization of the white race” and “rate suicide”. Racial preju-

dice increased ; “Anglo-Saxon clubs of America” sprang up

throughout Virginia and sponsored legislation de8igned to

halt the: mixing of the races in Virginia.* , :

On February 7, 1924, on petition from these organiza-.

tions, and in response to the racist sentiment of- the time,

.a number; of State senators. initiated the bill which ulti-

mately became the Racial Integrity Act of 1924; and was

originally entitled “A Bill to Preserve the Integrity of the

White Race”.** Members of both houses of the General

Assembly. displayed a great interest in the bill. The House

of Delegates invited John Powell,.a renowned Virginia

‘pianist and local racist, to speak before it on the dangers

of “racial amalgamation”. According to the -Richm

Times Dispatch of February -18, 1924, the delegates se-

lected Powell because of his knowledge of “ethnological

problems and conditions in various parts of the world and

* Richmond Times Dispatch, February 17, 1924, p. 6. At the

time of passage of the Racial Integrity Act of 1924, there were

Anglo-Saxon clubs in Virginia at the University of Virginia, Col-

lege of William and Mary, Virginia Military Institute, Washington

and Lee College and Randolph Macon College. Clubs could also be

found at Richmond and other cities and towns of the State.

i ** Journal of the Senate of the Commonwealth of Virginia (Rich-

mond: Superintendent of Public Printing, 1924), P. 185.

N\,

22.

his wide-acquaintance among European authorities and

_ statesmén”. Powell was very much involved in the national

-eugenics\movement and had,“himself, organized ‘many of

the Virginia Anglo-Saxon clubs which petitioned the As-

sembly to take action to preserve the white race. Powell

stressed to a “well-filled gallery” the need to preserve

e white race from contamination with non-white blood,

observed that when a white race absorbed the Negro

thesia amalgamation its civilizatiqn disintegrated.

’ Powell was assisted in his efforts by Dr. W. A Plecker,

the State Registrar of Vital Statistics, who supplied “vital

statistics” to show confusion in Virginia cohcerning racial

origins and the necessity for a stronger anti-miscegenation

law to preserve racial integrity. Richmond Times Dispatch,

February 13, 1924, p. 1. In response to Powell’s address

and the fatatistics of Dr. Plecker, the House introduced a

bill of its own only three days after Powell’s address.

Thereafter, apparently without significant debate or

controversy between the Senate and the House of Dele-

gates, the Act, technically entitled “An Act to Preserve

Racial Integrity” (Va. Acts of Assembly, 1924, ch. 371),

passed the Senate on February: 27, 1924, and the House on

March 8, 1924, and was approved sail the Governor on March‘ .

20, 1924.

It in part repeated earlier prohibitions on miscegenation

but also -effected “a sweeping change in the scope of the

law... by keying the miscegenation provisions to a new

- and wiry narrow definition of a ‘white person’.” Wadling-

ton, 1200. Under this new definition, a white persofi was

‘forbidden to marry anyone other than another white person

' defined to be ome “who has no trace whatsoever of any

blood other than Caucasian ... . ” (now § 20-54).* For

the first time, Virginia prohibited the marriage of whites

with Mongoloids and other non-Negro races as well as

Negroes. Earnest Sevier Cox, in his book,: THz Sourx’s

Pant 1x Moncrewizinc tHE Nation (Richmond: White

America Society, 1926), called the Virginia law “probably

- the most perfected expression of the white racial ideal .

since the institution of caste in India some four thousand

years ago”. At P. 98.

& ;

Other new provisions of the 1924 legislation which re-

main in force today remind one of the laws of Nazi Ger-

many:. The State Registrar of Vital Statistics was em-

powered to prepare a form so that persons could certify

to their “racial composition” to local registrars who could

issue duplicate certificates of racial composition, one for .

the person registering and one for the State Registrar.

(now § 20-50). The knowing or willful falsification of ‘a

registration certificate as to color or race-was made a

felony punishable by one yéar in the penitentiary. A mar-

. Tiage license was not to be issued unless the issuing official

had “reasonable* assurance” that the statements of the

parties as to color were correct, and the Act assigned the

burden of proof, if a question should arise, to the persons

applying for the license (now § 20-53).

All statutes relating to racial betiestiiiaain which were

in effect in 1924 were made applicable to marriages. pro-

hibited by the new provisions. Thus the 1924 act carried

forward the provision making Negro-white marriages void,

_ * There was an exception to this definition designed apparently

to protect the descendants of John Rolfe. and Pocahontas which

. @eemed persons “who have one-sixteenth or less of the blood of the

“ American Indian and no other non-Caucasic blood” to be_ white

persons. :

. 24.

the civil and criminal applicability of the evasion provision

[Section 20-58], and the criminal penalties applicable to

the parties to an interracial marriage and to the minister .

_ performing the ceremony.

Ill.

- Anti-miscegenation ‘laws cause immeasurable social

_ There is still another history to be told; it lurks beneath

the surface of the “written” history we have examined.

This is the story of what these laws have done to our

entire people. Unhappily this is the familiar chronicle vf

race relations in our nation: Here ‘briefly i is some intima-

tion of what the miscegenation laws—born out of oppres-

sion and hatréd—contribute to our legacy.

The high degree of racial mixture that exists in the

United States—estimates of the ratio of Negro Americans

with at least one known white forebear run as high as

72 to 83 per cent, Perricrew, A PROFILE OF THE NEGRO

American 68 (1964)—has occurred predominantly in the

South under illicit conditions fostered by the miscegena-.

tion laws. Of more relevance, this: racial mixing was

almost entirely in the context of illicit exploitative sexual

intercourse; white male of Negro female. Myrpat, An

American Ditemma, Chapter 5 especially at pp. 1204-1207

(1962) (Hereafter cited as “Myrdal”) ;* Cas, THe Mrnp.oF

THE Sours 87-88 (1941).

* Throughout this section, we often utilize this definitive treatise

on the Negro problem in America by the eminent Swedish social

~ economist, Gunnar Myrdal.

This history of illicit sex relationships conditions, psycho-

logically and sociologically, the entire pattern of American

race relations. . Nor can its importance be overemphasized

since “[t]o the ordinary white American the caste line

between white and Negro is based upon, and defended by,

the anti-amalgamation doctrine”, and “[moreover this]...

doctrine, more than anything else, gives the Negro problem °

- its uniqueness among other problems of lower status groups,

not only in terms‘ef the intensity of feeling but more

fundamentally in the character of the problem.” Myrdal,

_ 54 (our emphasis). This socio-psychological taproot of

American. racial prejudice is nowhere more vividly de-

scribed than in Lillian Smith’s great work, KILLERs oF THE

Dreaw, in the chapter entitled “Three Ghost Stories” (1961

ed.), and in W. J. Cash’s, Tae Minp or tHe Sour (1941).

Considering such accounts, it is difficult to avoid Myrdal’s

conclusion that

[t]he fixation on the purity of white womanhood, and

also part of the intensity of emotion surrounding the

whole sphere of segregation and discrimination, are

to be understood as the backwashes of the sore con-

science on the part of white men for their own or

their compeers’ -relations with, or desires for, Negro

women. Myrdal, 591.

_. The Negro participant in this abnormal sex relationship

did not escape psychologically unscathed. Although iso-

lating psychogenic factors is difficult, there can be no doubt

of the profound adverse effect racial discrimination has had

- on the individual personality traits of the Negro. See Petti-

grew, supra at Chapter I, “The Role and Its Burdens”

(1964); ef., Brown v. Board of Education, 347 U. 8. 483

(1954). It is a frightful thing, to use one example, if

Miss Smith is right when she claims “. . . there is a

— blasting scorn of white men growing in the

9 ©

minds ... of nearly every woman of the colored race... .”.

Smith, supra at 109. Any social construct which can en-

gender such np ee and personal antagonism is

wrong.

Admitting the futility of attempts to expunge the sins

of the past, Virginia’s anti-miscegenation laws (and those -

of sixteen Southern and border States) stand as a present

day incarnation of an ancient evil. As such, these laws do

not simply bar interracial marriage, they perpetuate and >

foster illicit exploitative sex relationships. Moreover, these

laws are explicitly designed to that end. To fail to under-

stand such invidious purpose is to doom the reasonable

man to an unrequited search for logic, viz:

... the relative license of white men to have illicit

intercourse with Negro women does not extend to for-

mal marriage. The relevant difference between these

two types of relations is that the latter, but not the

former, does: give social status to the Negro woman

and does take status away from the white man. These

status concerns ... are functions of the caste ap-

naratus which, in popular theory, is itself explained

as a means of preventing intermarriage, the whole

theory [thus] becoming largely a ee oirele. Myrdal,

590 (our emphasis).

The relevance of such purpose to our scope of inquiry

here—the present day impact of these laws—seems clear.

‘

Cutting through the psychological overlay and: rationali-

zations, Myrdal explains that:

. The great majority of non-liberal white South-

erners utilize the dread of ‘intermarriage’ . : . to jus-

tify discriminations which have quite other and wider

goals than the purity of the white race. ... what white

people really want is to keep the Negroes in a lower

status. Myrdal, 590-91. :

And enlarging on the same theme he ae:

The persistent preoccupation with sex and marriage

in the rationalization of social segregation and dis-

crimination against Negroés is . . .‘an irrational escape

on the part of the whites from voicing an open demand ~

for difference in social status betygen the two groups

for its own sake. Ibid.

In short, the basis of harm that makes this Court’s

warrant equal to the ultimate evil of these laws is that

they constitute an infliction of indignity upon every person

cast among.others as not good enough to marry a “white

person”. Aas

‘ Paradoxical as it may seem that-this most blatant ascrip-

tion of inferior status is the last to be condemned by this’

Court, it is fitting that the opportunity to make the con-

demnation universal presents itself. The miscegenation .

laws, understood as the paradigm of “all of these thousand

and one precepts, ‘etiquettes, taboos, and disabilities. in-

- flicted upon the Negro [having the] common purpose: to

express the subordinate status of. the Negro people and

the exalted position of the whites,’ Myrdal, 66, and func-

)

tioning chiefly as the State’s official symbol ‘of a caste

system, must be dealt with accordingly.

IV.

_ The legislative history of the Fourteenth Amendment

does not exempt anti-miecegenation iawe from its ap-

_ plication.

The only substantive argument advanced by the Com-

monwealth of Virginia in its Statement opposing the not-—

ing of jurisdiction by this Court was that the legislative

history of the Fourteenth Amendment conclusively estab-

lishes that it was not intended to apply to miscegenation:

laws. Eclectic statements from the debates on the bill

which became the Civil Rights Act of 1866 are used to

support this thesis, which was also advanced in the School

Segregation Cases, and a law review article, Pittman, The

Fourteenth Amendment: Its Intended Effect on Aniti-

Miscegenation Laws, 43 N. C. L. Rev. 92 (1964). (A more

recent article in support of the same thesis, which was not

cited by the Commonwealth, is Avins, Anti-Miscegenation

Laws and the Fourteenth Amendment: The Original In-

tent, 52 Va. L. Rev. 1224 (1966).)

A close examination of such statements indicates that

many legislators who felt the Civil Rights Act of 1866 was

not intended to reach miscegenation laws based their views

on the now discredited equal application theory (later enun-

ciated as a judicial construction of the equal protection

‘clause in Pace v. Alabama, 106 U. S. 583 (1883)). For

example, the Commonwealth quotes Senator Trumbull as

follows (at p. 8 of its Statement) :

How does this interfere with the law of Indiana pre-

venting marriages between whites and blacks? ‘re |

not both races treated alike by the law of Indiana?

Does not the law make it just as much a crime for a

white -man*to marry a black woman as for a black

woman to marry a white man, and vice versa? I pre-

- sume there is no discrimination in this respect, and.

therefore your law forbidding marriages: between

whites and blacks operates alike on both races. This

bill does not interfere with it. If the negro is denied

the right to marry a white person, the white person

is equally: denied the right to marry the negro. I see

no discrimination against either in this respect that

does not apply to both. . . . (our emphasis)

But Senator Trumbull’s presumption has proven incorrect ;

equal application of inequalities based on race is uncon-

stitutional. » McLaughlin v. Florida, 379 U. S. 184, 188

(1964).

If such legislative history—whatever its real meaning .

assuming one could read the minds of the legislators from

the historical record—were determinative of the scope

_ of the Fourteenth Amendment, then it might not have been

applicable to school segregation, jury. service and other

forms of segregation. See, e.g., Brown v. Board of Educa-

tion, 347 U: S. 483 (1954) ; Strauder v. West Virginia, 100 -

__-B, S. 303 (1880) ; Norris ¥. Alabama, 294 U. S. 587 (1935) ;

Bickel, The Original Understanding and the Segregation

Decision, 69 Harv. L. Rev. 1, 64-65 (1956).

A correct appraisal of the legislative history of the

broad guarantees of the Fourteenth ‘Amendment for pur-

poses of constitutional adjudication is that they were open-

ended and meant to be expounded in light of changing

times and circumstances. See Bickel, supra, at 64. (“But

the relevant point is that the Radical leadership succeeded

in obtaining a provision whose effect was left to future

determination”.) ; Kelly, Clio and the Court: An Iicit Love

Affair, 1965 Sup. Or. Rev. .119, 145 (Evidence from the

debates indicates that Bingham and others “hoped that the.

prohibitions on racial discrimination would have an open-

ended character, i.e., would grow through judicial interpre-

tation and congressional legislation with the progress of

time”); Wechsler, Toward Neutral Principles of Constitu-

' tional Law, 73 Harv. L, Rev. 1,.32 (1959) (“... the words

[of the equal protection clause] are general and leave room

‘for’ expanding content as time passes and conditions

change”); Burton. v. Wilmington Parking Authority, 365

U. S. 715, 722 (1961) (“Because the virtue of the right to

equal protection of the laws could lie ‘only in the breadth

of its application, its constitutional assurance was reserved

in terms-whose imprecision was necessary if the right were —

to be enjoyéd in the variety of individual-state relations = -

which the Amendment was designed to embrace”).

In short, the applicability in 1967 of the equal protection

and due process clauses to miscegenation laws cannot be -

ascertained by a-resort to doubtful legislative history but

must be defermined by this Court, utilizing all appropriate

Chief Justice Hughes’ admonition : :

_—- 31

; “&

i If... the great clauses of the ‘Constitution. must

be confined to the interpretation which the framers,

with the conditions and. outlook of, their time, would

refutation. It was to guard against such a narrow

conception that Chief Justice Marshall uttered the

‘ ‘\memorable warning—‘we must never forget that it is

a constitution we are expounding’ (McCulloch v. Mary- |

land, 4 Wheat. 316, 407) . . . Home Bldg. & Loan

Ass’n v. Blaisdell, 290 U. S. 398, 442-43 (1934).

The Virginia anti-miscegenation laws are racially dis-

criminatery and deny appellants equal protectionfof the

laws. = rey

' There can be no doubt that the conviction of the Lovings

was because Mrs. Loving is a Negro. But for this fact, and

that Richard Loving is a “white person” under Va Code

§ 20-54, no crime would have been committed. Except for

the difference of edlor, the state never raised any objec-

tion to*the marriage, If both had been white or both had

been other. than white, their marriage would be valid.

In Brown v. Board of Education, 347 U. 8. 483 (1954),

this Court struck down segregation in public schools. as a

violation of equal protection. WhetKer Brown means that‘

(i) the Fourteenth Amendment prohibits the intentional

disadvantaging of Negroes as Negroes by any form of

legalized segregation (Black, The Lawfulness of of the Segre-

gation Decisions, 69 Yaz L. F. 421 (1960) ) or, (ii) there can

be no rational basis for a statutory. classification which

stamps Negroes as inferior (Applebaum, Miscegenation

ad 32

Statutes: A Constitutional and Social Problem, 53 Gzo. °

L. J. 49, 86 (1965)) as the Virginia anti:miscegenation

laws do 6z, (iii) a state statute cannot constitutionally

deny Negroes’ the freedom to associate with whites

(Wechsler, Toward Neutral Principles of Constitutional

Law, 73 Harv. L. Rev. 1, 34 (1959)), we agree with Pro-

fessor Bickel that thé principle of the Brown case should

control the constitutionality of miscegenation laws. BicKEL,

TxeE Least Dancerous Branca 71 (1962). ~

In fact, miscegenation laws seem more clearly uncon-

two consenting, competent adults to marry each other seems

-even nfore fundamental than the right of students to attend

alternative and (iii) both parties to an mterracial marriage

wish to associate or join together as man and wife, while

.in Brown, arguably, the white students, or some of them,

did not wish to associate with the Negro students.

. "When a Negro is denied the right, solely because he

is a Negro, to marry a white woman who wisbes to marry

him, the law discriminates against him and denies him as

well as the woman equal protection of the laws. While mis- -

cegenation laws have been upheld in the past by use of the

“equal application” theory of Pace v. Alabama, that these

laws do not discriminate because both whites and Negroes

are prohibited from intermarrying (see, e.g., Jackson v.

(1942)), this theory “ ... represents a limited view of

the Equal Protection clause which has not withstood analy-

sis in the subsequent decisions of this Court.” McLaughlin

v. Florida, 379 &. S. 184, 188 (1964).

fe —

Statutory distinctions based on race alone have been

_ struck down in many cases involving rights much less

substantial than the right to marry. See, e.g., Hamm v.

Virginta State Board of Elections; 230 F. Supp. 156 (E. D.

.Va.), aff’d per curiam, 379 U. S. 19 (1964) (designation of

race‘in voting and property. records) ; Anderson v. Martin,

375 U. S. 399 (1964) (designation of race’ on nomination

papers and ballots) ; Watson y. City of Memphis, 373 U. S..

526 (1963) (segregation in public parks and playgrounds) ;

Oyama v. California, 332 U. S. 633 (1948) (recial restric-

tion involving alienation of land); Takahashi v. Fish ¢

Game Commission, 334 U. S. 410 (1948) (racial restriction

‘on congnercial fishing licenses) ; Yick We, v. Hopkins, 118

U. S. 356 (1886) (racial restriction on_licensing of laun-

_ dries). And this Court has enunciated as the law of the -.

’ Jand that: rind :

Distinctions between citizens solely because of their

ancestry are by their very nature odious to a free

(people whose institutions are founded upon the doe-

trine of equality. For that reason, legislative classi-

‘fication or discrimination based on race alone has

often been held to be a denial of equal protection.

Hirabayashi v. United States, 320 U. S. 81, 100 D (1943).

‘Ie fact, “classification -based on race alone ‘is inherently

discriminatory”. Dorsey v. State Athletic Comm., 168 F.

Supp. 149, 151 (E. D. La. 1958), .aff’d. - suiiaii 359

U. S. 533 (1959).

In McLaughlin v. Florida, supra, this Court held that

there must be “some overriding statutory purpose requir- °

ing the proscription of the specified conduct when engaged

- in by the white person and a Negro, but not otherwise”,

-- 7 34

379 U.S. at 192, and also stated, in effect, that the burden

_ of demonstrating this overriding ne is on the State

because:

. the euntenl y purpose of the Fourteenth Amend-

ment was to eliminate racial discrimination emanating

fram official sources in the States. This strong policy

renders racial classifications ‘constitutionally suspect’

. and ‘in most circumstances irrelevant’ to any con-

stitutionally acceptable legislative. purpose .. . 379

U. S. at 192. :

\ At ‘least two members of this Court have recognized

that there can be no such “overriding ey purpose”

to justify a miscegenation law:

I cannot conceive of a valid legislative purpose

under our Constitution for a state law which makes the

color of a person’s skin the test of whether his conduct

is a criminal offense. (Mr. Justice Stewart, joined by

Mr. Justice Douglas, CORCETEING. in melange, 379°

U. S. at 198.)

The Supreme Court of Appeals of Virginia upheld the

miscegenation laws in this case (R. 25) by reliance on its

earlier decision in Naim v. Naim, 197 Va. 80, 87 S. E. 2d

749 (1955). In Naim, the ieee of these laws ‘were set

forth as follows:

We are unable to read in the Fourteenth Amend-.

ment to the Constitution, or in any other provision of

that great document, any words or any intendment

which prohibit the State from enacting legislation to

preserve the racial integrity of its citizens, or which

denies the power of the State to regulate the marriage

relation so that it shall not have a: mongrel breed of

citizens. We find there no requirement that the.State .

shall not legislate to prevent the obliteration of racial .

pride, but must permit. the corruptio on of blood éven

though it weaken or destroy the quality of its eitizen-

ship... . 87 S. E. 2d at 756.

Of course the maintenance of racial purity or integrity is

a meretricious basis for these laws for there is no evidence

to support the existence of so-called “pure” races. Mon-

TaGcu, Man’s Most Dancerous MytTH: THE FAuuacy or Race

(4th ‘ed. 1964); see authorities discussed_in_W.inberger,

A Reappraisal, of the Constitutionality of Miscegenation

Statutes, 42 Cornett L. Q. 208, 217 (1957). The idea

of a pure race is a subterfuge to cloak-ignorance of the

phenomenon of racial variation.

Even if racial purity were a conatitutionalty acceptable

-purpose, the Virginia laws are not reasonably calculated .

to effect this purpose. The only race kept “pure” is the

Caucasian. This is because the. Virginia laws are not de-

name* of Virginia’s 1924 Racial Integrity Act indicates and

its legislative history affirms, to preserve only the integrity

of one group: members -of ‘the so-called “White” ** or

“Anglo-Saxon Race”. A person of Chinese ancestry, for

example, is not nanos within the definition of Fae eaiers

* “A Bill to —_— the Integrity of the White Race. ws See p. 21

of this Brief.

** For a persuasive discussion of tle fact that there i is no white

- pace and never has been one see “A Four-Letter Word That Hurts”

by- anthropologist, Morton H. Fried, in n Saturday — October

2, 1965. “

a °

persons” [Va. Code § 1-14], or “white persons” [Va. Code

§ 20-54]. Thus the marriage of a Chinese and a “white.

. person” would be unlawful under Va. Code § 20-54, Naim

v. Naim, 197 Va. 80, 87 S. E. 2d 749 (1955). On the other

hand, a marriage between a Chinese and a “colored person” »

would be neither unlawful nor subject to prosecution. Cer-

tainly this is not equal protection. In fact, Virginia’ S con-

cept of “race”, based on. statutory definitions which are

a combination of legal fiction and genetic nonsense, is a

soc 1] rather than a scientific concept, designed to preserve

the social status of ‘Virginia’ S politically dominant group.

The. other atieaiadel legislative purpose is the preven-

tion of “eorruption of the blood” from racial intermixing

which would “weaken or destroy the quality of its [Vir-

ginia’s] citizenship”... To assume this is a valid legislative

purpose—as the highest Virginia court did—which ‘justifies

miscegenation laws is not enough to meet the State’s bur-

den with respect to laws which on their face discriminate

on the basis of race or color. Virginia has not. presented,

and we submit cannot present, reputable scientific evidence

_to prove that a person of mixed blood is somehow “inferior”

in quality to one of racial purity, assuming arguendo that a

person of racial purity- such as a pure Caucasian exists.*

‘Moét serious students of anthropology do not even consider.

this question a present problem for research, agreeing that

the races of the world are essentially equal in native ability

- and capacity for civilization and that group differences- are.

for the most part cultural and environmental, not heredi-

* Even if reliable scientific evidence could be presented to sup-

port an inferior race theory, the State’s burden would not be met.

couples ‘would not justify the serious restriction on personal liberty

effected by miscegenation laws prohibiting interracial marriages.

ee i he a — PROS

tary. See, e.g., THE Race Question AND Mopern SCIENCE:

Tue STATEMENT ON THE Nature oF Race and Race Dirrer-

ENCES, Article 7 (UNESCO, 1952).

As for the progeny of racial intermixing, there is not a

single anthropologist teaching at a major university in the

United States who subscribes to the theory that Negro-

white matings cause biologically deleterious results. See

letter to editor from members of Department of Anthro-

‘ pology, Columbia University, ‘N. Y. Times, December 15,

1964. On the contrary, some conclude that, because of a

certain hybrid vigor, interracial marriage may be desirable —

- and the offspring superior, citing the Hawaiian population,

’ among ‘others, to support this view. See SHapmo, Race

Mixture (UNESCO, 1965), and the authorities discussed in

Cummins & Kane, Miscegenation, The Constitution and

' Science, 38 Dicta 24, 47-49 (1961).

We will not postulate unarticulated legislative purposes.*

In the final analysis, these laws are unjustifiable relics

of slavery—initially passed to foster that peeuliar and dis-

tasteful institution, and re-enacted in their present form

as part of the surge of-racial antagonism and intolerance

-of the 1920’s. They deny Negroes and other nonwhites equal

protection of the law and stamp them as inferior citizens.

* Judge Bazile in his opinion below gave the following religious

justification for miscegenation laws which requires no comment:

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 raees

shows that he did not intend for the races to mix (R. 16).

VI.

. The Virginia anti-miscegenation laws violate the due

process clause of the Fourteenth Amendment.

“Marriage is perhaps the most important and most per-

sonal of all human relatioriships. We think it clear that

the “liberty” which is protected by the due process clause

of the Fourteenth Amendment includes the right to marry.

Meyer v. Nebraska, 262 U. S. 390, 399 (1922) (dictum).

Justice Traynor so held in his opinion in Perez v. Sharp,

_ 82 Cal. 2d 711, 198 P. 2d 17 (1948) (sub nom. Perez v.

Iippold), which invalidated California’s anti-miscegenation

statute. In Skinner v. Oklahoma, 316 U. S. 535, 541 (1942),

this Court described marriage as “one of the basic civil

rights of man”. See generally Applebaum, Miscegenation

Statutes: A Constitutional and Social Problem, 53 Geo. L. J.

49, 67-68 (1964).

The recent holding in Griswold v. Connecticut, 381 U. S.

479 (1965), that the privacy of the marital relationship °

is. a constitutionally protected freedom—whether under

the rubric of a right of privacy or under the concept of

ordered liberty embodied in the due process clause, Palko

v. Connecticut, 302 U. S. 319 (1937)—signifies that the

right to marry is itself protected from arbitrary govern-

mental interference by the basic guarantees of our Con-

stitution. Furthermore, the right to marry, regardless of

race or color, may.appropriately be deemed part of a

broader constitutional freedom of association as enun-

* It should be noted that the United States has joined with other °

members of the General Assembly to vote in the United. Nations

for the adoption of the Universal Declaration of ‘umen Rights

which provides in Article 16.1:

“Men and women of full age, without any limitation due

to race, penny or religion, have the right to marry and -

to found a family.”

ciated in Griswold by Mr. Justice Douglas and previ-

ously recognized to some extent in NAACP y. Alabama,

357 U. S. 449 (1958), and NAACP v. iss 371 U. 8. 415,

430-31 (1968). ;

Of course the right to marry is not an absdlute right and

a State may restrict it in certain circumstances, for example,

._by imposing reasonable age and health limitations and, pro-

hibiting incestuous or polygamous marriages. The question,

however, as in the equal protection area, is whether the anti-.

miscegenation statute has a legitimate legislative purpose ,

and whether the manner of regulation bears a reasonable -—

relationship to such purpose. See, e.g., Nebbia v. New. York,

291 U. S. 502, 525 (1934) ; Bolling v. Sharpe, 347 U. S. 497,

499-500 (1954) (“Segregation in public education is not rea-

‘sonably related tc any proper governmental objective, and

thus it imposes on Negro children of the District of Colum- *

bia a burden that constitutes an arbitrary deprivation of —

their liberty in violation of due process. ad F Buchanan v.

Warley, 245 U.S. 60 (1917).

The Virginia anti-miscegenation laws have no legitimate

governmental objective. Their enforcement deprives appel-

lants of personal liberty—their right to marry—without

due process of law just as it also denies them equal pro-

tection of the laws.

‘CONCLUSION

For the foregoing reasons, Sections 20-58 and 20-59 of

the Virginia Code should be held unconstitutional, and this:

Court should make clear that neither Virginia nor any

other State can ‘constitutionally prohibit or penalize inter-

- racial marriages.

The elaborate legal structure of segregation has been

virtually obliterated with the exception of the miseegena-

eT eee eT» eet

tion ‘laws. White racists can still point to these laws to

support their appeal to the ultimate superstition fostering |

racial prejudice—the myth that Negroes are innately in-

ferior to whites. There are no laws more symbolic of the’

Negro’s relegation to second-class citizenship. Whether or

not this Court has been wise to avoid this issue in the past, _

the time has’ come to strike down these laws; they are

legalized racial prejudice, unsupported by reason or morals,

and should not exist in a good society.

Respectfully submitted,

- Bernarp S. CoHen

Pamir J. HmscaxKop

110 North Royal Street

' Alexandria, Virginia

—_—

Attorneys for Appellants

| Wuuum D. ZABEL

52 Wall Street

‘New York, New York

Artuur L. BERNEy

67 Winthrop Road

. Brookline, Mass.

Marvin M. Karparxin

Metvin L. Wuur

156 Fifth Avenue

New York, New York .

Davin CarLInEer

1424 16th Street, N.W.

Washington, D. C.

Of Counsel

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