Brief Amicus Curiae — Loving v. Virginia
Supreme Court brief1967
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INTEREST OF AMICI CURIAE ............. ut tee ekusenwene
SUMMARY OF ARGUMENT ...........000- cinaaweuwecates ‘
DED 56 vn cake dca deneinKes Pesce ceceececeueeeces
I, It Is Respectfully But Firmly Urged That, Pace v
Alakama, 106 US 583, Should Be Overruled Not Only
Because the Reasoning in That Early Case Is Incon-
sistent With Subsequent Decisions of This Court But -
Also Because the Reasoning in That Case WasandIs'.
Inherently Fallacious .... ; eSseenshesencscesseates ae
(A) be Reasoning of Pace v Alabama Is Incon-
With the Subsequent Decisions of This
Coun and Such Reasoning Should No Longer ;
Be Given Any Currency ............0eeeeees . €£
(B) The Exercise or Imposition of Governmental -
Laws or Power Based Upon Race Has. No
. Proper. Place in Controlling, or Seeking to Con-
"trol, the Fundamental, Basic and Highly Per-
PT 8 PPA eee 10 |
~(C) The Reasoning in Pace Was and Is Inherently
‘Misleading and Thereby ge 11:
II. Virginia’ s Anti- -Miscegenation Laws, as Well as Such
Laws in the Remaining Sixteen States With Anti- '
Miscegenation Statutes, Violate the Right to “Equal
Protection of the Laws” Not Only as to Its Non-
_ White Citizens But Also as to Its White Citizens .. 12 -
III. Anti-Miscegenation Statutes Are Based on Funda-
mental Misconceptions of Fact Which Render Them
Unconstitutionally Arbitrary and :Vague and Which
Bear No Relationship to Any Legitimate Legislative —
| PREOOR occ cccccccsecccccceces PE TTT Ty a i
3°
.
« . .
. «
.
-
INDEX (Continued).
, | 7 * Page
(A) Racial Classification Necessarily Requires Arbi-.
trary Selection of Population Groups and Its
‘Use for Purposes of Legislation ane: Be Highly
WD hic ce ceeckccessndedsperdonesccenes on
(B) Statutes.Based on Racial Discrimination Serve
No Public Purpose and Are Therefore Invalid 20
[1] Racial Purity Can Not Be Preserved Be-
_ cause Racial Purity Does Not Exist ...... 20
[2] Preservation of Racial Superiority Is Nei-
ther a Meaningful Nor Legitimate Statutory -
DO Ce aa dakkads ead ak 21
(a) The Myth of Racial Superiority Devel- *
‘oped Along With the Original Miscon-
BF GRIN OE BROOD be ns cccsdcccccscces -21 |
(b) There Is No Basis for Equating Race roe |”
and Cultural Potential ............. 23 |
(c) There Is No Basis for the Belief in’ |
Biological Superiority ......\...... 24
(d) Miscegenation Is Not Seceiind
SE Danckeedkchnaerdcbonens oe 28
(e) The Premeveion of Racial Superiority
; Is Not a Fit Purpose of Legislation .. 29
(f) ‘When the Myths Are Stripped Away,
the Anti-Miscegenation Statutes Are
- Exposed as Being Totally Without
_ Valid Public Purpose .............. 30
(C) The Auti-Mlecupuation Statutes Must Fail Be- |
. ._ cause They Provide Standards of Proof Which
Are Impossible of Application and Are Uncon-
I WD ink acacwascnccccasscesus HW |
CONCLUSION ........ Peau easceenka Deeds kath wes ‘=
APPENDIX A ..... Hegel Hae are eer pe ane Fith cabins la
APPENDIX B A re eee AEsMAGhSNeNsanasvadesdecee ds 46a
TABLE OF CITATIONS.
NINO 00
_ Cases: . — ' Page
Adkins v Children’s Hospital, 261 US 525 ................-. —~6
Allgeyer v Louisiana, 165. US 578 .........ccccccccececcee -- 6
Anon. v Anon., 46 Del. 458, 85 A.2d 706 EROUED ke¥ehcse<a 14.
Anderson v Martin, 375 US 399 ...............0.00c0c5e 7
Atlanta Motel v.United States, 379 US 241 .......... ueens At
- Bailey v. Patterson,. 369 = PRPS eer on eee 7
Baker v Carter, 180 Okla. 71, 68 P.2d 85 (1937) :....... ae
' . Bates v Little Rock, 361 We EE 65 cb cnt evins ccccns eheee
Bolling v Sharpe, 347 US 497 0.0... . ccc. cccceccceceee oe
Brown v Board of Education, 347 US 483 .................
Burton v Wilmington Parking Authority, 365 US 715 ......
Colorado Anti-Discrimination Commission v Continental Air
Lines, 372 US 714... SSS Seeseenececcceeveseasncsenes 6
Cooper v Aaron, 358 US 1 ................ use sben cae 7
Edwards v California, 314 US 160 ....2..... 00. e cece ec eeee 7,16
vets v Newton, S82 US 296 qu... occ ccccscccccccccncces 7
RE WB, GU ON OO han civeneccdcccccechccessecies. 32, 33
Gomillion v Lightfoot, 364 US 399.2... 0. cece cece eece 7
Goss v Board of Education, 373 US 683 ...........00ce0. 7
Griswold v Connecticut, 381 US 479 TtLTT TTT TTT TTT TTT |
/ Hirabayashi v “United States, 320 US 81-..... pee ceeseees 5, 6, 12
' Holden v Hardy, 169 US 366 ................. aCohbechnwe 6
Jackson v Jackson, 82 Md. 17, 33 A. 317 (1895) .........:. 15
Johnson v Virginia, 373 US 61 ................. rere kies 7
Johnson v Johnson’s Adm’r, 30 Mo. 72 (1860) ........... - 14
-Katzenbach v McClung, 379 US 294 ............ Sp Rt Te 7
Kinney v The Commonwealth, 71 Va. oe, een 13
Louisiana v United States, 380 US 145. pOseentesccusicese Uy iay
McLaughlin v Florida, 379 US 184 .......... etenkkas 4, 8,9, 11, 13
Meyer v Nebraska, 262 US 390 :......... biesienseaseua 7,8
Miller v Lucks, 203 Miss. 824, 36 So. 2d 140 (1948) ....... Ca
Missouri ex rel Gaines v Canada, 06 USSP.........5.5. a om
TABLE OF. CITATIONS (Continued).
Cases (Continued): Page
Morgan v’ Virginia, 328 US 373 ..........-.0.:- Se, Maca
Naim v Naim, 197 Va. 80, 87 SE 2d 749 (1955) .......... = ss
New Orleans v Barthe, 376 US 189 ............ aes Mae ee 7
Osoinach v Watkins, 235 Ala. 564, 180 So. 577 (1938) ....... 14
Oyama v California, 332 US 633 ............00008 beaacee ee
Pace v Alabama, 106 US 583 (1882) .............eeeees 3, 4,6, 11
Perez v Lippold, 32 Cal. 2d 711, 198 P. 2d 17 (1948) ..... a)
Plessy v Ferguson, 163 US 537 .........eeeeeeneeeeeeeeee |
Dei © Titi, BEE TOD iiss a sscesincciscaccens 7
Scott v Georgia, 39 Ga. 321 (1869) Sh See Eaorrr eyes ,. .23, 28
Shelly. v Kraemer, 89 Ree re eanercnaneee eeaese 8
- Skinner v Oklahoma, 316 US 535 ...........eeeeeeees Sages 9, 10
South Carolina v. Katzenbach, 383 US ESRD ED eee 7
State v Jackson, 80 Mo. 175 (1883) ............. aaa 20, 23
State v Ross, 76 N.C. 242, 22 Am. Rep. 678 (1877) ......... 14
State v Tutty, 41 Fed. 753 (Cir. Ct., S.D., Ga. 1890) ........ 15
State Athletic Commission v Dorsey, 359 US 533<......... Aree
Steele v Louisville & Nashville RR Co., 323 US 192 ........ 6
Stevens v United States, 146 F.2d 120 (CCA 10,1944) ..... “15
Takahashi v Fish and Game Commission, 334 US 410 ....... 6
Taylor i, COE PE cc ow ca cenceuacuceeescanas 7
Truax v Raich, 239 US 33 ........ [eineuaupanseonerenes’ - 6
Turner v Memphis, 369 US 350 ........5....2006 ices 7
US v Bhagat Singh Thind, 261 US 211 ..............223 «A,
United States v Guest, — US —, 16 L ed 2d 239 .......... 7
Yick Wo v Hopkins, 118 US 356 ..... ene Curenre Soegsen 6,8
Yu Cong Eng v Trinidad, 271 US 500 .............eeeeeee 7
Whittington v McCaskill, 65 Fla. 162, 61 So: 236 (1913) .... © 15
_ Wood v Commonwealth, 159 Va. 963 ; 166 SE 477 (1932) . 13
Wright v Georgia, 373 US 284 .......cscceccccecccceeces 7
‘TABLE OF CITATIONS (Continued).
Statutes: . Page
Ark, Stat. Anno., § 55-104 ........... PPO OP Rare at 14,15
Georgia Code Annotated, Tit. 53, §312 .......... teen eeeees 2
Kentucky, Revised Statutes, PTD sciseaccsnvscandions 00 |
Maryland, Anno, Code, Art. 27, §398 .................... 2
Mississippi Code Anno., § 459 ....... sbeksdanliceknaceasas oe
Oklahoma Constitution, Art. 23, §11 ...... Ae nncsin Stee 2
- Tenn. Code Anno. §:36-402. ..........cccccccncesccccecces +5
Virginia Code: aan
een Shiwkan eh neudsethilaackedcannc écevnawvsauawed 13, 16
WU HASAN Ayuda knswid vk cddckeekieiucnicecc eu 12, 19
WOE Raw nuxuansnnwes cwawar ide vareivcceeinace 12, 14, 16
WE HELENA Ginn wawsercnciaccnactkieecctenuccUs 13,15
SEN NESNORUnh suaah skandkCake snub ieduceaccii ick 14
SE Ncabecunekhcacdcs Eaaeeiter Satire ee 16
Vernon’s Anno. Missouri Stat. DOE Gn60nssncsnacsaccn., 2
Vernon’s Texas Penal Gode, Art 492 ........... ere Se
Vernon’s Texas Penal Code, Art. 493 ...... cence eeaaee ieee
Miscellaneous: _ Page '
eatiner: Jomunch, Book Review, peo Journal of Physical
| MI io Sa eden 18, 31
Comas, Manual of Physical Anthropology ....... ee 19, 27
Dobzhansky, Mankind Evolving ......... Sivabeencas 2, 18, 19, 26
‘Dobzhansky, The Race Concept in Biology, The Scientific
ME Sabah aunodaxeccdvess vse ehhecsenbeeecawend 20
Eiseley, Darwin’s Century ..........2.....ccccccc00055 5, 22
Garn, Human Races .............. Chau eh ee tnct ts. seated
Garn and Coon, On the Number of Races of Mankind, -
American: Anthropologist ...;..... a rer ee _ 19
Harrison, Weiner, Tanner and Barnicot, Human hie. e 29
Herskovitz, Cultural Anthropology p1aes ben edibekencnenees 25, 26.
Hulse, The Human Species ..........0 000 0cccccccececes ‘22, 27
TABLE OF CITATIONS (Continued).
Miscellaneous (Continued): ‘Page.
Johnston, The Population Approach to Human Variation, 134 |
Annals of the New York Academy of Sciences ......... 18
Krogman, Physical Anthropology and Race Relations: A Bio-
social. Evaluation, The Scientific Monthly ......... oon
Laughlin, Races of Mankind: Continental and -Local, Anthro-
| pological Papers.of the saciid of Alaska pent cueWan » &
Be SONNE pc cdasuseudcusecesia eee eee eee 29
Montagu, The Idea of Race .......e.cccecceeesceesees 21, 24, 26
Montagu, Man’s Most Dangerous Myth: The Fallacy of Race . .24, 26
Morton, Chung, Mi, Genetics of Interracial Crosses in Hawaii 29
Op. Att’y Gen. No. 87 (Ohio) :........... eeeenbekheaver 14
50 Op. Att’y Gen. 248 (La.) ........ STU RMauh eeu ia, war 5
SD SE Sa ce nwkbseusdscdekevenpincsesd eee
Simpson, Principles of Animal Taxonomy ............... a ae
Sterm, Hlsaman Gemeties «2.0 ciccsescsccqecsvcccccseves 24, 27,29
UNESCO, Statement on the Biological Aspects of Race ..... 28, 29
Weinberger, “A Reappraisal of the Constitutionality of Mis-
cegenation Statutes”, 42 Cornell LQ. 208 vais ieee - ee
Supreme Court of the United States
. Octroser Term, 1966
No. 395
RICHARD PERRY LOVING ann |
MILDRED DELORES JETER LOVIN G, ;
a ae | Appellants
°
v.
COMMONWEALTH OF VIRGINIA,
| _ Appellee
On AppeaL From THE Supreme Court or APPEALS
FOR VIRGINIA er
- BRIEF OF AMICI CURIAE |
JAPANESE AMERICAN CITIZENS LEAGUE.
INTEREST OF AMICI CURIAE.
According to the.1960 United States census report com-
piled by the Bureau of the Census, Department of Com-
merce, there were 1,733 ‘‘Japanese”’ residing in the state
of Virginia. The 1960 census report also lists 464,332 J apa-
nese to be residing in the United States of whom_17,911
were residents of the seventeen States which presently
maintain anti-miscegenation statutes.1 And while of these’
1. Alabama 500; Arkansas 237; Delaware 152; Florida 1,315;
Georgia 885; Kentucky 664; Louisiana 519; Maryland 1,842;
Mississippi 178; Missouri 1,473; North Carolina 1,265; Oklahoma
749; South Carolina 460; Tennessee 507; Texas 4,053; Virginia
1,733 and West Virginia 176. «7
4
2 et Brief of pay,
seventeen States, only ienta’ anti-miscegenation statute
expressly mentions ‘‘Japanese’’* several other anti-miisce-
genation statutes employ terms such as ‘‘Malay race’’,®
‘‘Mongolian’’,* and in Oklahoma‘ and Texas * presumably
Japanese would be classed as ‘‘white persons’’ although this
‘is by no means clear. Further, as to the remainder of these
seventeen States it is similarly unclear as to whether or not
a person of Japanese ancestry is a member of the class sev-
erally designated as “‘white person’’, , or ‘‘col-
ored person.’’:
Because of these confusions which aida plague
_ persons‘of Japanese ancestry and those similarly situated —
and further as an American organization vitally interested »
in, and concerned with, the dignity and liberty of all Ameri-
cans, the Japanese-American. Citizens League (‘‘J.A.C.L.’’)
files this brief amici curiae. Briefly, the J A.C.L. is a non-
* profit, charitable organization with a national membership
in excess of 20,000 persons who reside throughout the
United States and while its membership is largely com-
prised of persons of Japanese ancestry, its membership also
includes, without limitations, Americans of varied faiths,
creed and color. ~
2. Georgia Code Perna Tit. §312. “White person
defined. The term ‘white person’ shalt iach only persons of the
white or Caucasian race, who have no ascertainable trace of either
_ Negro,. African, West Indian, Asiatic Indian, Mongolian, Japanese,
or Chinese blood in their veins. No person, any one of whose ances-
tors has been duly registered with the State Buresa of Vital Statis-
tits as a colored or- person of color, shall be deemed to be a
- white person.” oe eee eS Oe ee te
set forth in Appendix .A, under “Relevant Portions of State
Statutes”. ) :
_ 3. Anno. Code of Maryland, Art. 27, § 398.
: 4, Mississippi Code Anno.,. § 459; Vernon’s Anno.. Missouri
Stat. § 451.020.
' . §, Oklahoma Constitution, Art. 23, § 11.
6. Vernon’s Texas Penal Code, Art. 493.
vy AO SAP NRE LS PRET > carve
Brief of Amici Curiae =| 8
SUMMARY OF ARGUMENT. ~
L-
: ®
Since Pace v Alabama, 106 US 583 (1882) the rights, .
privileges and immunities of the individual in many facets
and spheres of his life have, under the Fourteenth Amend-
ment, been safeguarded to him, free of the odious .circum-
scription of laws based on race. Vital and all-important as
these rights are to the individual and to the preservation of
a democratic society of free men, such rights appear as pal-—
pable and material ones in contrast to the intimate, personal
right of privacy in marriage: Griswold v Connecticut, 381
US 479. Freedom in marriage concerns one of the most
basic and fundamental rights of the individual, rooted, in-
deed, in one of man’s biological drives. The mutual exercise
. by two individuals of such a right,—a noble goal otherwise’
promoted and blessed by society,—should not be converted
into a crime or otherwise stigmatized by law manly because
of race,
' It would constitute a shocking. outtage if the anti-
miscegenation laws of Virginia (and the other sixteen
States) directed that its citizens must marry a person of a
different race. That this same operative principle is geared .
to operate in the:other direction by the anti-miscegenation
‘statutes es it no less demeaning to the citizen and an
invidious invadion of a basic, fundamental right.
» Rather, the freedom of choice,—the freedom of choice
not to marry a person of another race as well as the freedom
to marry another without regard to race,—should and must
reside with the individual, not with the government.
Pace v Alabama, supra, is not authority for sustaining —
anti-miscegenation laws: First, the ‘‘limited view [of Pace] -
of the Equal Protection Clause has not withstood analysis
in the subsequent decisions of this Court’’: McLaughlin v
Florida, 379 US 184,.188. Secondly, it is respectfully but’
firmly submitted that the narrow view expressed in =
4 ae Brief of Amici Curiae
was inherently faulty and misleading. What Pace failed a
to consider was whether or not ‘‘the same punishment to
both offenders, the white and the black’? (106 US at 207),
would have been meted out if there had been two males,
one white and the other Negro, who had been guilty of
. tdentical acts of ‘‘adultery and fornication’’ with the same
. female (white or ‘‘black’’); it is clear that the punishment
would differ and differ solely because of race. The same
inequities would apply with even more gross injustice in
the enforcement of anti-miscegenation laws, for mis-
Pia cegenous couples would be punished for engaging in an act,
i.e. marriage, which is not only otherwise legal but which
- also is actually otherwige a and blessed by the
state.
: oe .
Where the exercise of state police power ‘‘trenches
upon the constitutionally protected freedom from invidious
discrimination based on race’’ such ‘‘bears a heavy burden
of justification. . . .’’: McLaughlin v Florida, 379 US 184,
196. Virginia’s state policy in support of its anti-
miscegenation laws has been expressed in terms.of main- ~ :
taining ‘‘purity of public morals’’, ‘‘the preservation of \% |=
racial integrity’? and to prevent a ‘“‘mongrel breed of =
citizens’’ as well as ‘‘obliteration of racial pride.”” Even
assuming arguendo such objectives to be valid state inter-
ests (and within tliis racist context we cannot accept such
assumption), since all races other than white remain free to
intermarry with one another and thereby destroy their
racial ‘‘purity’’, ‘‘integrity’’ and “*pride’’, the insidious
' sophiism of Virginia’s state policy, as well as those of the
other sixteen states with anti-miscegenation laws, is readily
exposed as a racist, ‘‘white supremacy’? law which is
repugnant “‘to a free people whose institutions are founded |
upon. the doctrine of equality’’: Mratapesht v United
States, ss eserteanon 100.
ee
Brief of Amici Curiae == 5
II. .
Anti-miscegenation statutes have grown out of funda-
mental misconceptions of fact and serve no public purpose.
The use of racial classification as a basis ‘upon’ which to
regulate the actions of individuals must be immediately
suspect because such classifications are necessarily arbi-
trary and incapable of precise application. . The stated pur-
pose of the anti-miscegenation laws is to preserve pure
races which the legislators thought were separate and dis-
tinct entities, but this is clearly not so‘and there is no such
thing as a pure race. The underlying purpose is to preserve
racial superiority—of the white race only—but there is no
proof that the white race is superior. Moreover, the entire
concept of a ‘‘master race’’ is repugnant to our society.
When the fictitious foundations of these laws have been
dispelled, the only remaining purpose isto preserve differ-
ences, such as skin color, nose size or hair types, which are
clearly not valid bases of legislation. Finally, the laws
must fall because they contain standards of proof which are
_ impossible of application and are unconstitutionally vague.
Such statutes, the surviving vestige of an era of exploita-
tion and ignorance, cannot be tolerated.
“hes ate Brief of Amici Curiae
ARGUMENT. - . *
It Is Respectfully But Firmly Urged That Pace v Alabama,
106 US 583, Should Be Overruled Not Only Because the.
Reasoning in That Early Case Is Inconsistent With Subse-
quent Decisions of This Court But Also Because the Rea-' |
soning in That Case Was and Is Inherently Fallacious.
_*(A) The Reasoning of Pace v Alabama Is Inconsistent ©
With the Subsequent Decisions of This Court and
|. Such — Should No —. Be Given Any
'’ Ourrency. ©
Since 1882, almost 85 years ago, when an plihems.
criminal ‘statute founded solely upon race was upheld in
Pace v Alabama, 106 US 583, on the reasoning that it ap-
plied ‘‘the ‘same. punishment to both offenders, the white |
‘and the black”’, this Court has over the years repudiated
‘‘[d]istinctions between citizens solely because of their <
ancestry’’ as being ‘‘odious to a free people whose institu-
tions are founded upon: the doctrine of equality’’. Hira-
bayashi v United States, 320 US 81,.100. The torchlight of . °
the Constitution has been wielded to-expose and burn away
these remaining shackles to individual liberty and to cast
forth light extending ‘‘to the full range of conduct’ which
the individual is free to pursue, and [which] cannot be re-
stricted excépt for a proper governmental objective.” .
Bolling v Sharpe, 347 US 497, 499-500. And so it was that
various rights of citizens and residents of this land. have °
been reaffirmed and upheld, including the right to follow an
’ occupation without discriminatory ent or restric-
tions on account. of race; to freely enter into contracts *®
7. Yick Wov Hopkins, 118 US 356; Truarx v Raich, 239 US
33; Takahashi v Fish and Game Commniission, 334 US 410; Steele
& Louisville & Nashville RR Co., 323 US .192; Colorado Axti-
Discrimination Commission v Continental Ar Lines, 372 US 714.
<8 Adkins v Children’s Hospital, 261.US 525; Holden v Hardy, |
169 US 366; —or v —_ 165 US 578. -
o
Brief of Amici Curiae 2%
__ and to own land; °* to learn foreign languages © or to main- ~*
tain business records in-a foreign language;™ to receive
schooling without regard to race,” without procrastination |
by purported spectres of racial violence™ and free ‘of
schemes to:perpetuate racial. segregation; to. freely en- |
_ Sage in inter-racial sports * and to attend public events on
a non-segregated basis "* as well as to have equal access to
public facilities without regard to~race;*" to register to.
_ vote * and cast ballots unhampered by racial gerrymander-,
ing schemes ® using ballots free of racial designations of .
candidates ;® to travel freely from State to State ** on non-
. segregated transportation facilities; to have freedom. of
° 9. Oyama v California, 332 US 633.
10... Meyer v Nebraska, 262 US 390.
11. Yu Cong Eng v Trinidad, 271 US 500.
12. Brown v Board of Education, 347 US 483.
13, Cooper v Aaron, 358 US 1.
14. Goss v Board of Education, 373 US 683. ey
_ 15. State Athletic Commission v Dorsey, 359 US 533, affirming
168 F. Supp. 149 (E.D. La. 1958). ms
16. Schiro v Bynum, 375 US 395, affirming 219 F. Supp. 204
(E.D. La. 1963), ia is. ‘. 4 mai wal
17. New Orleans v Barthe, 376 US 189 (public parks and play-
‘ ground), affirming 219 F. Supp. 788 _(E.D. La. 1963); Evans v
Newton, 382 US 296 (public park, title to which had been-trans-
a to omen —— a A ay ge Rw
c playground); Burton v mi arking . —
see US 715 (restaurant in parking facilities leased from municipal-
ity) ; Turner v Memphis, 369 US 350; Katzenbach' v' McClung, 379 -
_ US 294 (public restaurant) ; Johnson v Virginia, 373 US 61 (seat-
_ ing in courtroom) ; Atlanta Motel v United States, 379 US 241
(public accommodations). ~ :
18. Louisiana v United States, 380 US 145; South Carolina v
Katzenbach, 383 US 301. .
19. Gomillion v Lightfoot, 364 US 399. ’
20. Anderson y Martin, 375 US 399.
21. Edwards v California, 314 US 160; United States v Guest, -
— US. —, 16 L ed 2d 239.
._ 22. Taylor v Louisiana, 370 US 154; Bailey v Patterson, 369
US 31; Morgan v Virginia, 328 US 373.
“2
| -
- Brief of Amici Curiae
assotiation unfettered by the taxing power;’and to have
the security of ‘‘protection of equal laws’’*™ so that crim-
inal penalties are not imposed upon persons for certain
acts merely because the actors happen to be of differing
races.> | : —_ #
These are but some of the rights and protections safe-
guarded to the individual... ‘‘The rights created by the first
section of the Fourteenth Amendment dre, by its terms,
guaranteed to the individual. The rights established are
personal rights.’? Shelly v Kraemer, 334 US 1, 22. Now |
the question before the Court is whether the vitally per-
sonal ‘‘right of the individwal . . . to marry. . . to
enjoy those privileges long recognized at ¢ommon law as —
essential to the orderly pursuit of happiness by free men”’,
Meyer v Nebraska, 262:US 390, 399-400 may be circum-
geribed by racial classifications or whether such classifica-
_ tion constitutes ‘‘an invidious discrimination forbidden by =
» the Equal Protection Clause’’. McLaughlin v Florida, 379
US 184, 192-193.: It involves ‘‘one of the basic civil righ
23. Bates v Little Rock, 361US 516. 2 ai
24. Yick Wo v Hopkins, 118 US 356; “The equal protection of
the laws is ‘a-pledgé of the protection of equal laws’”. Missouri
' ex rel Gaines v Canada, 305 US 337, 350.
25. McLaughlin v Florida, 379 US 184. —
essfed knowlediea, fo marry, extablich a home and bring up.chiliren,
to worship God according to the dictates of his own conscience, and
lative action which is arbitrary or. without reasonable relation to
Brief of Amici Curiae 9
of man’’: ‘‘Marriage and procreation are fundamental to >
the- very existence and survival of the race.’? Skinner v
Oklahoma, 316 US 535, 541...
| So personal is the exercise of this basic right of two
individuals mutually selecting one another as their respec-
tive life partners in marriage,”’ and so intertwined is that
choice with the fundamental concept of ‘‘life, liberty and the
_ pursuit of happiness’’, that even under the now-rejected
. “separate but equal’’ doctrine of Plessy » Ferguson, 163
US 537, such right could not be abrogated by an edict direct-
ing an individual, to seek a different mate who is just as
‘equal’. For example, if his mutual election involved ~
one of two identical twins, no power, no statute, no edict
could, or should, direct him to shift his choice even to the .
other ‘‘equal’’ identical twin. This is the nature of the |
_ basic fundamental right presently before this Court.”
In McLaughlin v Florida, supra, even though the |
‘Florida statutory prohibition involved ‘‘concepts of sexual
decency . . ..dealing . . . with extramarital. and pre-
marital promiscuity’’, supra at 193, yet because such statute
was formulated on racial'classification and laid ‘‘an unequal
hand on those who . : . committed intrinsically the same
quality of offense’’, supra‘ at 194, this.Court struck down
such statutory provision as ‘‘invidious official discrimina-
tion based on race.’? Supraat 196. On the other hand, in
the instant case of the appellants before this Court, the
‘state statute of Virginia seeks, not to deter sexual promis- —
27. Griswold v Connecticut, 381 US 479, 491. “To hold that a
right so basic and fundamental and so deep rooted in our society as
the right of | vacy in marriage may be infringed because that right
is not guaranteed in so-many words by the first eight amendments -
. . - or elsewhere in the Constitution would violate the Ninth
28. Cf Perez v Lippold, 32 Cal. 2g 711, 714, 198:P. 2d 17, 18-19
. (1948) ; “Marriage fs thus something, more than a civil contract sub-
cag app emt fecbelemcangeosely = pap wrdknars
There ‘be no prohibition of marriage except. an important
social objective and by reasonable means.” . Sloe VE
RR a RE RR RS 8 RE TE Et ty PPR
0. | Brief of Amici Curiae
cuity or such similar opprobrious activity but. eather the
noble-and necessary goal common to all persons—‘‘[m]Jar- ~
riage.and procreation [which] are fundamental to the very
existence and survival of the race.’ Skinner v Oklahoma,
316 US 535, 541. If racial classification may not be imposed
in a purported effort to curb sexual promiscuity then clearly
_ racial classifications ought not be ‘imposed to cufb a per-"
. son’s noble aspiration of marriage.
(B) The Exercise or Imposition of Governmental Laws
or Power Based Upon Race Has No Proper Place
in Controlling, or Seeking to Control, the Funda-
mental, Basic and Highly sursenas | ‘Right of
Marriage.
Racial classification as.a standard lias no proper place
‘in governmental action invading and seeking to dictate and.
regulate one of the most basic and intimate areas of a
citizen’s life, rising, indeed, even above many fundamental:
liberties in that the exercise of such right by the individual
also involves one of man’s basic bioldgical drives:
| The anti-miscegenation laws of Virginia and of the -
other sixteen states Attempt to use race as a standard for
determining ‘and controlling, under the threat of various
criminal sanctions as well as civil consequences, whom an
individual may or may not marry. The nature and extent
of this infringement upon the individual’s vital right to
choose his, or her, life mate in marriage may be exposed .
by applying the operative racial principle in reverse: it
would be a shocking outrage if the state marriage jaws
directed that all its “citizens must marry a person of a
| diff erent race.: That this same operative racial principle
is geared in the other direction by the anti-miscegenation
“ statutes makes it no less a shocking outrage which is de-
smeaning to the citizen. ~ .
Rather, the freedom of choice,—the freedom of. choice
_ not to sci a — of another race as well as the freedom
Brief of Amici Curiae ae
“to marry another without regard to race,—should and must.
reside with the individual, not with the government.
A
(C) The Reasoning in Pace Was and Is Inherently -
_ Misleading and Thereby Faulty.
- Appellee, the Commonwealth of Virginia, would seek
to sustain its racial laws on the eroded foundation of Pace ©
v Alabama, 106 US 583, a foundation which this Court has
viewed as not having ‘‘withstood analysis in the subsequent
decisions of this Court.’”” McLaughlin v Florida, 379 US
184, 188. It is respectfully but firmly submitted that not
only did Pace narrowly view the Equal Protection Clause
_-but also that its reasoning was inherently misleading:
Pace narrowly. viewed an act involving 'a Negro male
and a white female and concluded that the equal protection -
requirements were satisfied because the Alabama criminal
statute imposed ‘‘the same punishment to both offenders,
the white and the black.’”” Supra at 207. What Pace failed
to consider, however, was whether or not the same punish-
ment would have been meted out to a white male who also
may have been engaged, or could have been. engaged in the
same act with the same white female. Thus if two males,—_
_ one white and the other Negro;—had each been guilty of
‘‘adultery and fornication’’ with the same white female (or —
with the same’ Negro female), the punishment for the very —
same offense would differ and differ only because of race.
A similar disparity would apply to the female in each par- )
ticular instance. - et
- This very same inequitable principle is given operative
effect under the anti-miscegenation laws but with even
greater injustice. For example, if two ‘white persons”’
enter into the marital status, such is not only not a crime but
is indeed blessed by the state; however, if this couple be
divorced and thereafter the ex-husband (or the ex-wife)
should again enter into the very same status, i.e. marriage,
but this time with a person who happens to be non-white,
ae = ay }
12. sri of Amici Curiae.
now this otherwise blessed matrimonial state is converted
into a crime—and solely on account of race, nothing else.
The attenuated doctrine of Pace, including its progeny
of anti-miscegenation laws, should no longer be allowed
currency among ‘‘free people whose institutions are
founded upon the doctrine of. equality’’: Hirabayashi v
United States, 320 US 81, 100. Pace should be expressly
overruled and the anti-miscegenation laws, in particular
that of Virginia’s, should be struck down as an affront to
- the dignity of all citizenry of our society.
I.
Virginia's Anti-Miscegenation Laws, as Well as Such Laws
in the Remaining Sixteen States With Anti-Miscegenation
“Statutes, Violate the Right to “Equal Protection of the
Laws” eee ee ee ee
to Its White Citizens.
Assuming that ‘‘races’’ can be defined—and as dis-
cussed hereinbelow, any classification is arbitrary,—Vir-
ginia’s anti-miscegenation statutes * further run afoul of
* the Equal Protection Clause. Its statute declares that it
shall be ‘‘unlawful for any white person in this State to -
marry save a white person or a person with no other admix-
ture of blood than white and American Indian’’* and also
declares that ‘All marriages between a white person and a
is: ae Virginia Code §20-50 et seq., set forth under’ “Relevant
Portions of State Statutes.” -
30. Virginia Code § 20-54: “It shall hereafter be unlawful for
any white person in this State to marry any save a white person,
or a person with no other admixture of blood than white and Ameri- ;
Indian. For the purpose of this chapter, the term ‘white
. .
ic > cece OS eRe eae mr pow . en hs
Brief of Amici Curiae 13
colored person * shall be absolutely void without any decree
of divorce or other legal process.’’ ™
When the state exercises its police power, and, as here,
“trenches upon the constitutionally protected freedom from
invidious official discrimination based on race’’, then,
“*[s]uch a law, even though enacted pursuant to a valid
state interest, bears a heavy burden of justification . . . .
and will be upheld only if it is necesary . . . to the accom-
plishment of a permissible state policy.’ -McLaughlin v
Florida, 379 US 184, 196. Virginia’s ‘‘state policy”’ for its
anti-miscegenation statutes has been-expressed in terms of
maintaining ‘‘purity of public morals’; ‘the preservation
of racial integrity,’?™ and, more recently, to prevent ‘‘a
mongrel breed of citizens”’ as well as ‘‘obliteration of racial
pride.’’** Accepting arguendo at face value the “state
policy”’ of Virginia as so expressed, it is readily apparent
‘that the only “‘purity’’, the only ‘‘racial integrity’’, the -
only avoidance of alleged mongrelization of the race are
for whites only and none other, for under Virginia’s laws,
all other races are free to intermarry and thereby “‘despoil’?
one anothe: without similar statutory safeguards for
preservation of their ‘‘racial integrity”’ atid ‘‘purity’’ and
‘“pride’’. An example of more unequal protection of the
laws can hardly be summoned.
31. The purported, and circuitous, definition of “colored per-
sons” is set forth in a separate section of the: Virginia Code, 1-14,
as follows : “Every person in whom. there is ascertainable any Negro .
blood shall be deemed and taken to be a colored person, and every
fourth or more of Indian blood and less than one-sixteenth of Negro
blood shall be deeméd tribal Indians.” —s
32. Virginia Code § 20-57. ~ nee
33. Kinney v The Commonwealth, 71 Va. 858, 869 (1878).
ot Wood v Commonwealth, 159 Va. 963,-965; 166 SE 477
35. Naim v Naim, 197 Va. 80, 90; 87 SE 2d 749, 755 (1955). “
4 , Brief of Amici Curiae
However, we do not for a moment suggest that the.
answer is to extend this racist principle,—for divested of its
sophistry it is readily exposed as such,—to other races and -
thereby further compound this antithesis to the éstablish-,
ment and maintenance of a democratic society of free men.
In addition to denying the equal protection of the laws
inter-racially, Virginia’s anti-miscegenation laws also oper-
ate to deny equal protection of the laws to its citizens intra-
racially. This comes about because Virginia’s prohibition
against entering into -miscegenous marriages applies to a
‘‘white person in this State’’** and to its residents who
‘shall go out of this State, for the purpose of being mar-
. vied. . . .’’** Thus, should a non-resident interracial
married couple move into Virginia and there establish a
- domicile then that particular interracial couple would enjoy
rights and privileges which are denied to their respective
counterpart citizens who are indigenous to Virginia, namely
the right to marry and cohabit as man and wife without
. regard to racial differences.**
36. . Nirginia Code, § 20-54. Emphasis added.
37: Virginia Code § 20-58. Emphasis added.
38. Of the remaining sixteen states with anti-miscegenation
laws, the following four states appear to recognize the civil validity
of interracial marriages by out-of-state non-residents :._
Delaware, Anon. v Anon., 46 Del. 458, 85 A.2d 706 (1951):
Kentucky, Revised Statutes, § 402.040: “If any resident of
._ this state marries in another state, the marriage shall be
valid here if valid-in the state where solemnized.” .
Missouri, Johnson v Johnson’s Adm’r, 30 Mo. 72 (1860)¥ Op.
Att’y Gen. No. 87, Hamilton 10-16-62...
Newin State v Ross, 76 N.C. 242, 22 hans Rep. 678
The following eight states would refuse to recognize miscegenous
marriages of couples who moved into these states tegardless of the
validity of such marriage where contracted :
ca v Watkins, 235 Ala. 564, 180 So. 577
Arkansa$ would appear to deny recognition to out-of-state mar-
— of non-residents who move into Arkansas. Ark. Stat.
Brief of Amici Curiae 15
However, should Virginia’s laws be construed and ap-
plied to bar non-resident interracial couples from coming
into or residing in Virginia*® such would violate the
privileges and immunities clause of ‘the Fourteenth
Amendment.” . :
Anno., § 55-104: “All marriages of white persons with
negroes and mulattoes are declared to be illegal and void.”
At the very least, such couples would be subject to the
penalty of “concubinage” which is defined in § 41-807 as
“The living together or cohabitation of persons of the
Caucasian and of the negro race: ... .” :
hee ae v McCaskill, 65 Fla. 162, 61 So. 236 |
| ). :
Georgia, State v Tutty, 41 Fed. 753 (Cir. Ct., S.D., Ga. 1890).
. Louisiana, 1948—50 Op. Att’y Gen. 248. ee
Maryland, Jackson v Jackson, 82 Md. 17, 33 A. 317 (1895),
- dictum. ee :
Mississippi, Miller v Lucks, 203 Miss. 824, 36 So. 2d 140
(1948). , a
Oklahoma, Stevens v United States, 146 F.2d 120 (CCA 10,
1944) ; Baker v Carter, 180 Okla. 71, 68 P.2d 85 (1937).
The remaining four states,—South Carolina, Tennessee, Texas and
West Virginia,—remain unsettled as to the civil effect to be given
to a miscegénous marriage validly entered into by non-residents in
another state. However, in Tennessee and Texas such miscegenous
_ Couples would be subject to criminal penalties for illegal cohabitation.
Tenn. Code Anno. § 36-402: “The intermarriage of white persons
with negroes, mulattoes, or persons of mixed blood descended from.
a negro, to the third generation inclusive, or their living together as _
man and wife in this state is prohibited.” Vernon’s Texas Penal
Code, Art. 492: “If any-white person and negro shall knowingly
intermarry with each other in this State, or having so intermarried
in or out of the State shall continue to live together as man and wife
within this State, they shall be confined in the penitentiary not less
than two nor more than five years.” b
39. Va. Code § 20-57. “All marriages between a white person
and a colored person shall be absolutely void without any decree of
divorce or other legal process.” As indicated in footnote 38, supra,
of the seventeen states only four would recognize an out-of-state
interracial marriage of parties who move into their states. In the
remaining twelve states such marriages would be invalid in eight
. States and highly questionable in the last four states. ;
40. “The right to move freely from State to State is an incident —
of national citizenship protected by the privileges and immunities.
e
| .
16 Brief of Amici Curiae
=
Aside from the question of vagueness arising from
statutes, courts and juries seeking to do what anthro-
pologists with their scientific expertise have difficulty doing,
namely, attempt to formulate and classify races of man-
kind, there also exist insidious uncertainties as well as
_ gonfusion in these anti-miscegenation laws. For further
_ example, under Virginia’s penal provision § 20-59 crim- ..
~ inality applies only to intermarriages of a ‘‘white person’’
and a ‘‘colored person’’ and § 1-14 defines a ‘‘colored per- -
son’’ as any person ‘‘in whom: there is ascertainable any
Negro blood.’? Thus, if a.‘‘white person’’ ané a Japanese
married while such would be unlawful unde: *, 20-54, under
the penal provisions of § 20-59 only the ‘‘white person’’.
-would be subject. to criminal sanctions and the Japanese,
being neither a ‘‘white person’’ nor a ‘‘colored person”’
' presumably would, on the face of things, incur no criminal
penalties. But this is far from being clear by reaten ‘of the
. last. sentence of § 20-54 which reads:
‘« All laws heretofore passed and now in effect regard-
ing the intermarriage of white and colored persons
. shall apply to marriages prohibited by°this chapter.”’
Thus, by this catch-all provision, an unsuspecting Japanese,
as well as any other person similarly situated, might sud-
denly find himself swept into the web of those particularized
provisions which, by their very specificity, appear to ‘exclude
J apanese,
. The anti-miscegenation laws of the other sixteen states
are similarly fraught with inconsistencies and: injustices
clause of the Fourteenth Amendment against state interference. Mr.
Justice Moody in Twining v New Jersey, 211 US 78,97...
, ‘Privileges and immunities of citizens of the United States
.t ed Goapeaun a ue quaker wun or
t, or are speci granted or
‘secured to all citizens or persons by the Constitution of the United
States.’ ee that one of these rights of sational
Hen
Citizenship was pass freely from State to State.’” —
re aa ee opinion ) Edwards wv California, 314
Brief of Amici Curiae 17
and some. of these are referred to under ‘‘eomments’? of .
_ the amici curiae in the Appendix of the ‘‘Relevant Portions
of State Statutes’’.
mm |
Anti-Miscegenation Statutes Are Based on Fundamental
Misconceptions of Fact Which Render Them Unconstitu-
tionally Arbitrary and Vague and Which Bear No Relation-
ship to Any Legitimate Legislative Purpose.
(A) Racial Classification Necessarily Requires Arbi-
. rary Selection of Population Groups and Its Use
for Purposes of Legislation Must Be Highly
Suspect. ae: Seite es
‘‘The scientific study.of human races is at least
, two centuries old. There are nevertheless few
natural phenomena, and probably no other
aspect of human nature, the investigation of
hich has so often floundered in confusion and
’ ‘misunderstanding.’ ® | |
Although anti-miscegenation laws were enacted during
the height of the confusion and misunderstanding about the
concept of race, even upon today’s understanding, race is
a tremendously difficult subject involving arbitrary classi-
fications which are not fit categories for legislation.
It is now generally agreed that Man, the genus Homo,
is represented by a single species to which all living races
belong. Species are groups of inbreeding natural popula-
tions, reproductively isolated from other such: groups.
‘‘Reproductive isolation” does not refer to spatial. or geo-
. ae Brief of Amici Curiae
graphical isolation, but. rather to inability to mate with
other species to produce. fertile progeny.. A species, there- ——
fore, is a genetically closed systemi, since new genes, the
biological units of inheritance, cannot be obtained from
other groups and passed on through fertile hybrids. Thus,
“the species js the basic group for han and a9
pological Ai stontione
Between the individual eee oe ee is the basic
unit of the species—and the species itself, is another layer.
of classification known as race. Racial classification is a
classification based on population groups within the species,
which because of social or geographical boundaries, have
tended to inbreed among themselves over long periods of
time. As a result of this endogamy, they tend to express ~*~
certain similar physical and genetic characteristics.*
‘ The process of classification has recently been described
in this manner:
**A race of Homo sapiens is a Mendelian population,
- a reproductive community of individuals sharing a
common gene pool.. The level at whiich the repro-
ductive community is defined.depends upon' the prob-
lem one is interested in investigating. There is no
absolute, final or ‘true’ level at which these repro-
ductive communities are defined. All members of our —
species belong to ao Mendelian population, and its
.. name is Homo sapiens. This large species-wide Men-
delian population may be divided into smaller Men-
delian populations, for all practical -purposes an
infinitely large numberof them . . . Races are open =
“” genetic systems, and as such they . are quite different.
from. species.’’
42. See generally: aah, Principles of ‘Animal Taxonomy
18, 148-152 (i961) ; Debchendey; op. cit. (1962).
43. See Johnston, The Population Approach to. Human Varia-
tion, 134 Annals of the New York Academy of Sciences (Feb. 28,
1966), pp. 507-515.
. 44. Beuttner-Janusch, Book Review, Asuicon, Journal of
Physical Anthropology, 25:2, — 1966, p. 184. . |
‘
SORE er ROE NRT, Cette ENR eIM Mohs yet e. Ue Ege
a = = —-
@
2
Brief of Amici Curiae i 19.
The practical truths of the statement that races are.
infinite is shown by Garn and Coon in article ‘‘On the
Number of Races of Mankind.’’ * Differing classificatory
systems have listed as few as two races and as many as
two hundred. -The-difference’ depends upon whether. the
classifier is a ‘‘lumper,’’ who groups a number of varieties .
into one broad category because the differences are too
trivial to warrant special classification, or a ‘‘splitter,’’
who believes that any distinct variety merits attention.“
The problem usually resolves itself into the classification of
a few geographical races, or many local or microgeograph-
. Ieal races, iA | ant
A geographical race may be defined as “‘a collection |
of similar populations inhabiting a broad continental ‘area
or island chain.’* A local. race is a more neatly circum- _
scribed physically or socially isolated inbreeding population _
group. If the classifier uses the geographical races, then
the number is “‘approximately six.or seven.’’ If the classi-
fier uses local races, the number is ‘“‘upwards of thirty.’’ 47
_ In other words, everr at the level of greatest generalization,
. the number is only an approximation. Geographical races,
as used in the Virginia statute, are merely ‘‘collections of
convenience.” ae oe
Moreover, when an individual leaves his population
group and mates With an individual in another group, the
racial classification of the offspring is immediately put in
- question. When miscegenation—which within the last five
ey
45. 57 American Anthropologist 996 ( 1955).
46. Garn, Human Races, 12 (1961 f.
: 47. Garn & Coon, op. cit. 999, iu
' 48. The Virginia: statute appears to be based on geographical
races when it uses the terms Caucasian, Negro, Mongolian, Ameri-
can Indian, Asiatic Indian and Malay as the basis for its certificates
of racial composition in § 20-50. But there is, of course, no agree-
ment on the precise number of geographical races or of the peoples
included within them. See classifications noted. in Comas,. Manual
of Physical Anthropology, 1960, pp. 18-19 ; 303-309, and Dobzhansky,
os Ks
op. cit. pp. 262-265.
49. Garn and Coon, of. cit. 1000.
¢
=
a 20 ae. Brief of Amici Curide
centuriesthas risen to ilies unprecedented i in human history
—beconies wide-spread, the arbitrary ‘‘classifications of
‘ convenience’? become evew more blurred: And yet these
are the standards which have been enacted into law as _
the basis upon which citizens of Virginia can be imprisoned
for up to five years.. Such statutes must be immediately
suspect. — ; rol a
(B) Statutes Based on Racial Discrimination Setve No
Public-Purpose and Are Therefore Invalid.
[1] Racial Purity Can Not Be Preserved Because
x ens Racial Purity Does Not Exist.
The stated purpose 0 se of. the present-Virginia statute is
‘‘the preservation of racial integrity.’’® A similar statute oo
was upheld in Missouri.as a valid attempt to preserve ‘‘the _
purity of African blood’’ (although it contained no prohibi-
tion against Negro-Japanese or other Negro-non-white
marriages).™
From an understanding of the concept of race as - the >
classification of generally endogomous population groups
separated only by geographical and/or social barriers, it
necessarily follows, however, that there is no such thing
as a ‘‘pure race’’. Anthropologist#are unanimous in their
conclusion that pure races.do not now exist and never have.
«The idea of a pure: race is not even a lagitianate
, abstraction; it is a subterfuge used to cloak one’s -
ignorance of the phenomenon of racial variation.” ™
50. The legislative. history. of the Virginia statutes (see Appel-
_ lants’ Brief) illustrates that the original anti-miscegenation laws were
‘based in part on the premise that the races must be kept separate
for political, social and economic reasons associated with slavery.
The concept of such separation enforced by law is now so repugnant
to our legal system that it need not be discussed.
‘51. State v Jackson, 80 Mo. 175 (1883).
a 52. Dobzhansky, “The Race Conc ore. in Biology”, The Scientific
Monthly, LII (Feb., 1941), pp. 161-165; see also citations collected
in Weinberger, “A Reappraisal of the Constitutionality of Miscegena-
tion Statutes”, 42 Cornell L. 2. 208 (1957). .
.- 6
—- orn IP POSE RA eT) eg ERS wt vege — ‘.
——- : vom = — Le vane dn “9 _— , : eres aditeeineebinien E
4 . \
Brief of Amici Curiae - 2
The geographical and social barriers which separate’
races are not absolute and there has always been inter-
mixture of the groups. By this logic, as soon as there was
' a single hybrid offspring, the race was no longer pure.
Enough population movement has been known to our species
to make ‘it clear that such miscegenation has not been an
isolated or rare phenomenon. A statute intended to pre-
serve the non-existent purity of an arbitrarily selected class
cannot stand.
[2] Preservation of Racial Superiority Is Neither
a@ Meaningful Nor Legitimate Statutory
Purpose. — aaa
(a) ‘The. Myth of Racial Superiority De-
— veloped Along With the Original Miscon-
ceptions of Race. .
When Europeans launched the great.Age of Explora-
tion, 500 years ago, they began to come into contact with
peoples never before seen, or known only through frag-
mentary reports of brief contacts. The physical differ- |
ences: between the European and the American ‘*TIndian’’,
the African Negro and the Asian were obvious and pro- ,
vided the means of classifying races as separate and distinct
peoples. More important this phenomenon led to the asso-
ciation of these physical differences.with behavioral and*
cultural differences, and to the assumption that these
differences resulted from ‘‘inferiority.’’ =
‘‘When the European encounters a barefooted native
wearing bizarre clothing, or watches one eating in an
apparcntly unmannerly fashion, or observes some, to
him, superstitious orm aingles§ ritual, he sees these .
departures from his own standards of behavior not
simply as cultural differences, but’ as indications of
53. See Montagu, The Idea of Race, 9-10 (1965); Shapi
Race Mixture, 7-12 {Third Printing, 1965). ) —T
tA er epee . ys
_-. translated as men, or real men.”
22 _ Brief of Amici Curiae.
inferiority. It is a subtle thing which the traveler
rarely escapes. Even where the conventions’and trap-
pings ‘of a foreign culture’are impressive in their com-
- plexity, this strahgeness often lends them an air of
unreality, of opera bouffe, that in the end renders them
somewhat childlike, if not ridiculous.’’ ™
The feeling of superiority in the beholder is a common
reaction—not limited to Europeans. The travel literature
. of the Chinese, for example, is also filled with similar judg- .
ments. But it was the European view of superiority which |
was enacted into law.
The Europeans’ natural feeling of superiority was con-
firmed as a result of the slave trade which brought to their
midst the African Negro, obviously different from the white
man and ‘‘obviously inferior’’ to his white captors. It was
sustained and further buttressed with the popularization of
Darwin’s theories of evolution, which were. indiscriminately
and improperly applied to prove that the ‘‘white’’ race was
superior -to all others, having reached the pinnacle © of
eyolution.®
| In his seminal work ‘‘On The Origin of the Species’.
first published in 1859, Darwin had shown how species—not
races—had evolved over time by a long process of natural
selection which resulted in the ‘‘survival of the fittest’’.
His doctrine was solely biological.. It had no applicatior to
cultures and yet its, phraseology lent itself readily to use
by the ‘‘social Darwinists,’’ who applied the theories of
biological evolution to explain cultural difference. Com-
bined with the earlier concept of a ‘‘scale of nature,’’ a
ladder on which each group -_ its rank, it provided —
54. Shapiro, op. ‘cit, 28.
55. Shapiro, op. cit. 28; see also; Hulse, The Hunan S pecies,
376 (1963), “The names by which the people of a preliterate tribe
-call themselves, as distinct frorh everybody else, can very often’ be
— .
-* 56. See generally Eiseley, Darwin’ s Century, especially pp. 297,
et seq: (998),
Pe
bpeerenerhan SE A IN ONE OH Loe RNP a Pee the
_ Brief of Amici Curiae 23
‘scientific logic’? with which racists could explain the
-natural and eternal superiority of the white man and justify
the separation of the races. Although the theory was
widely believed,* it had no justification. None of the con-
cepts of racial superiority has_ survived scientific in-
vestigation.
(b) There Is No Basis for Equating Race and
Cultural Potential.
Cultural activities are man’s way of reacting to his
erivironment and there is no evidence of a connection be-
tween ‘frace”’ and cultural or intellectual potential.
‘*The evolutionary facts indicate that the mental ca-
pacities of human beings in different populations called
‘races’ are so much alike that for all practical purposes
we can assume that given adequate opportunities, the .
members of any one group could, with the same or
similar frequencies, achieve whatever the members of
any other group with the adequate opportunities have
achieved. Wherever it has been possible to put this
57. A Georgia court upheld anti-miscegenation statutes on the
‘ground that: “[moral and social] equality does not exist and never
can. The God of ‘nature made it otherwise, and no human law ca’
produce it and no human tribunal can enforce it. There are grad
tions and classes throughout the universe. 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 iad =
Scott v Georgia, 39 Ga. 321, 326 (1869).
A Missouri court upheld a statute on the ground that: “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 intermarriage of blacks and
whites . . .” State v Jackson, 80 M@ 175, 179 (1883).
_ This quotation i8 significant not because it now appears so ludi-
crous but because it suggests that only 80 years ago it was thought _
that Negroes and whites were different species incapable of inter-
matrying to create fertile progeny !
For convincing evidence that the. Virginia statutes were enacted
to preserve the superiority of the white race—and the white -race:
only—see Appellants’ Brief.
» : )
}
‘ee lt; Brief of Amici Curiae
hypothesis to the. - it has been supported by the
findings. 99 58 .
_ The belief ‘‘that physical and mental traits are linked,
that the physical differences are associated with rather
pronounced differences in mental capacities, and that these
differences aré measurable by IQ tests and the cultural
achievements’’ of — is what Montagu calls “the
myth’’ of race.”
(ec) There Is No Basis for the Belief in Bio-
logical Superiority.
Although racial classifications may reflect some ob-
servable physical differences within mankind, ‘‘they do so
in an artificial and even misleading manner. - They tend
to give the impression that the human species is naturally
partitioned into discrete, discontinuous groups,. whereas
in studying the geographical distribution of physical char-
‘ acters, we commonly find gradual changes as we pass from
one region to another rather than sharp boundaries ane
abrupt transitions.’’ ©
The fact of the matter is that ‘‘all peoples of the anni
are infinitely more alike than they are different.’’® The
differences are ones of degree and not of kind.
58. Montagu, The Idea of Race, 62 (1965).
59. Montagu, Man’s Most Dangerous Myth: The Fallacy of
Race, 24 (4th Edition, 1964); See also Garn, Human Races, 111
. (1961): is no evidence for racial differences in character
and tem , other than those due to cultural conditioning.” ;
Stern, Human Genetics, 701 (1960): “It is difficult enough to
define an over-all social psychology, but even when some valid
approximation can be made, it seems my Sy © oa
torical periods, or, if the race occupies different parts of the globe,
only to specific regions. Differences in group psychology are also
well known in different social layers of populations presumably
rather genetically homogeneous.”
‘oo aa ~ Weiner, Tanner: and Barnicot, SPamen Biology, .
i 1964) |
Y Ph Anthropology and Race Relations: A
Biosecial Bosheaton, a Scamiee Monthly, LXVI, No. 4, April,
p. 317.
EE RE RE em ey tee +
Brief of Amici Curiae 25
No race has a monopoly on any single trait or group
of traits. They all include individuals running a scale
from short to tall, broad to narrow and light to dark. The.
differentiation of races by morphological characteristics,
- therefore, becomes a statistical problem of determining
differences in group averages. Having determined the |
averages, however, nothing necessarily follows about the :
specific characteristics of individuals within the race. .
Herskovits illustrates this fact with the following
example. My Ge
“It is a commonplace that the noses of Europeans
are narrow, those of Africans broad. Among the
broadest-nosed Negroes are the Kajji of the Niger
Delta of West Africa ;-among the Caucasoids with nar-
rowest nostrils are the Swedes.. If we set down the
‘average values of this measurement for these two
populations, a striking difference between them is to be
seen: nae
55 Kajji 45.5 mm.
" ‘ 260 Swedes ; 30.2 mm.
Yet when we take into account the Variability of these
two populations in this trait, we see that even such a
marked difference in nose form does not prevent some.
Swedes from having broader nostrils than some Ne-
groes, and that some Negroes have narrower nostrils
than some Swedes. Kajji noses vary between about
30 to 54 millimeters, while Swedish noses range from
about 19 to 37 millimeters. Therefore, if one were to
draw a line between 30 and 37 millimeters long, and
present it to an expert, asking him to designate whether
this line represented the nose-width. of a Negro or a
Swede, he could not tell from whicl: group it had been
taken. This would be true in spite of the fact that we
are dealing here with populations that represent ex-
-
26° Brief of Amici Curiae
_ treme forms taken by their respective races in the
characteristic being measured.”
‘*. . . Consequently, we may state as a general
' principle that greater differences exist in the range of
physical traits that characterize any single race of
_ mankind than between races taken in their entirety.” ®
_ It becomes clear that the use of physical features as
the basis for racial definitions of groups or racial identifica-
‘tions of individuals becomes a very slippery problem.“
The development in the last century of a scientific
study of human genetics has not solved the problems in
obtaining the perfect delineation of. race. Certain blood
types, such as the ABO blood groupings and the rhesus
factor, in which heredity patterns can be exactly traced,
have been studied exhaustively throughout the entire world.
_Although the techniques are highly scientific, the studies
suffer from the same fundamental weakness as the mor-
phological studies. Jf the classifier can find an isolated and |
endogamous population group, which itself could be desig- —
nated as a race, he can make some general conclusions
about the average blood type frequencies for the group.
However, he cannot say from the group averages‘what type
blood an individual will have. And he cannot tell from
62. The subjects used in this example were’ not selected at
randori from. their respective geographical white and negro races,
but were selected because of a special characteristic peculiar to a °
limited population group which might be considered a local race.
Had the study used random measurements from the geographical
races, we could have: expected greater range within the races and:
even greater areas of overlap between them.
63. Herskovits, Cultural Anthropology, 61-62 (1964).
64. Even the selection of typologic traits for use in determining
race appears to be arbitrary depending on“ what kind of race the
classifier wants to find. Montagu indicates‘ that racial classification
became a “parlor game” in which “only: those methods of ‘race’
classification which indicated the ‘right mace of ‘race differences’ were
encouraged and utilized.” Montagu, The Fallacy of Race, 66; See
also — ‘Mankind Evolving, 256.
Brief of Amici Curiae _ 27
a person’s blood type. to ‘what race he necessarily belongs.™
And also, like the morphological clagsifications, when signif-
icant admixture has occurred, the problem of classification |
becomes vastly more difficult.* :
Much of the foundation for the biological supremacy
argument has come from studies proving that there are
average differences in certain biologi¢al characteristics.
The error of the lawmakers—like the error of the early ob-
servers of race—was to equate difference with biological
supremacy, and average differences of a whole population.
with. specific differences in individuals. 7
Most biological differences between races are believed
to represent adaptations to the specific environment in -
which the race developed. For example the dark skin of
the Negroes may provide a shield against the burning sun
of the equatorial regions while the lighter skin of northern
peoples may permit the less intense light rays to penetrate
the skin and help manufacture vitamin D. The long narrow
nose of the Caucasoids may allow for warming up cold
outside air before it enters the lungs, while the. shorter
broader nose of the Africans may be more suited to their
evenly warmer surroundings.”
Even these differences are not as significant today as
they may have been in the past, because technological
developments ‘‘have so greatly changed man’s environ-
ment and his ability to cope with it-. . . that adaptations
to former environments are becoming largely obsolete.’’ ®>
But to dwell on this type of quéstion is to confuse the
whole issue of biological superiority. The real issue was
succinctly put by the distinguished team of human biologists
65. “When the classifications were based on serological criteria
rather than the populations, the results were understandably bizarre.”
Garn, Human-Races, 50 (1961). See also, studies in Comas, op. cit.
pp. 303-307; Hulse, op. cit. pp. 295-340.
- 66. Stern, op. cit. 689. ar
67. Stern, op. cit. 695. ‘ “
68. Id. 7 |
28 oon Brief of Amici Curiae ;
assembled in 1964 by UNESCO to formulate a statement
on the biological aspects of race.
‘‘Certain physical characters have a universal biologi-
cal value for the survival of the human species, irre-
spective of the environment. The differences on which |
racial classifications are based do not affect these char-
acters, and therefore, it is not possible from the biolog-
ical point of view to speak in any way whatsoever of
‘a_general inferiority or —— of this or that
race. 99 69 .
Thus it “becomes entirely clear that the whole saa
ity notion on which these statute ar are based is: fallacious.
“ ¢d) ‘Miscegenation Is Not Biologically
Harniful.
By the same token, the judicial justification. af the
statutes on the basis of detrimental.effects upon the off-
_ spring of interracial marriages ™ falls completely upon in-
vestigation. It has never been proved that interracial mar-
riages have biological disadvantages." This has recently
69. Statement on The Biological Aspects of Race, —*~
1964. The UNESCO statement so clearly sets forth the funda-
mental concepts of race and so clearly shows the invalidity of mis-
cegenation laws that it is-printed in its entirety as “Appendix B” of ~
the Brief. The statement was signed by many of the world’s fore-
~most biologists and anthropologists, including Carlton Coon, whose
/ work has been widely eniaiaterptuied as Providing material for racist ©
arguments.
70. “The amalgamation of the races is not only unnatural, but
is always productive of deplorable results. Our daily observationy
_ Show us, that the offspring of these unnatural connections are geti-
. 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,
tied —— ae -7. — to Be as of the inferior. They are
uctive of evi evil only, without any co ndi
Scott v Georgia, 39 Ga. 321, 323 (1869). ieee .
71. UNESCO pan, paragraph 9.
. —_=
~*~,
Brief of Amici Curiae | ees 29°
been confirmed by one of the most exhaustive studies of
interracial matings over conducted, the results of which
were released this year. A ten-year investigation of-
179,000 births in Hawaii, a state which prides itself on it?
racial mixture and its lack’ of racial prejudice, concluded
that there are no significant adverse effects detectable from
racial mixtures."" = «~~ “4
In fact, it has. been suggested that miscegenation can
be positively beneficial to the speciessby increasing stature,
resistance to disease, viability and fertility, a phenomenon
known as “‘hybrid vigor.’’ * ¢
(e) The Preseruation of Racial Superiority Is
Not a Fit Purpose of Legislation.
Moreover, the whole concept of a biologically superior »
race is anathema to our society. We reacted in horror whtn °
Hitler proclaimed and enacted laws based on’ the theory of
a ‘‘master'race” in Germany. He too, had récognized the
‘higher or Jesser value’’.of the races and had sought to
prevent a ‘‘niggerized world”’ in which his concept of ‘‘the
humanly beautiful and sublime . . . would be lost for-
ever.’’"* We found nothing tolerable in- Hitler’s view of
72. Morton, Chung, Mi, Gevetics of Interracial Crosses in
Hawaii in the series Monographs in Human Genetics, 1967.
. 73. Stern, op. cit. p. 699-701; Harrison, ef al., op. cit. 1632164.
The UNESCO Statement reads: “It has never been proved that
interbreedingshas biological disadvantages for mankind as a whole.
On the contrary, it contributes’ to the maintenance of biological -
. ties between human groups and thus to the unity of the species in
_ its diversity. . , : .
The biological consequences of a marriage depend only on the
individual genetic make-up of the couple and not on their race.
_ Therefore, no biological justification exists for prohibiting inter-
marriage between persons of different races, or for advising against
it on racial grounds.” a,
74, Mein Kampf, pp. 383-84. Quoted in Shirer, The Rise and
Fall of the Third Reich, 88 (1960). ay 4
;
be)
30 ' Brief of Amici Curiae
a
racial superiority. It is far less telecable in our own
society today. .
(f) When the ¢ Myths Are Stripped Away, the
Anti-Miscegenation Statutes Are Exposed
as Being Totally Without Valid Public
Purpose.
_ Thus, since there is no factual basis to support the
concept of biological superiority, the only remaining pur-
pose of the anti-miscegenation statutes is to preserve bio- ©
logical differences; that is, to maintain differences in the
_ color of one’s skin,” the shape of one’s nose and the texture
of one’s hair. The mere statement of such a purpose shows ~
the absurdity of the ertire concept. We do not legislate on
such differences within a race; there is no public pur-
pose to be served by regulating nose size. These differ-
ences, for legislative purposes; are entirely neutral.”
No one would seridusly contend that a law which pro-
hibits marriage between light-skinned and dark-skinned
people or between blue-eyed and brown-eyed people could be
constitutional#y sustained. Nor would anyone seriously
contend that a law prohibiting marriage between - Prot-
- estants and Catholics.or between Italians and French would
’ be constitutional. “Whatever differences may exist between
these groups can not provide proper bases for fixing public
policy. Nor can the differences between Negroes and
whites. Since the anti-miscegenation statutes provide dis-
criminatory treatment merely on the basis of these legis-
latively neutral differences, they are, by definition, . arbi-
trary and unconstitutional.
75. Th statutes, of course, do ndt even assute the fulfillment ”
of these put . By operating indirectly on a racial basis rather
than directly on the actual characteristics, they allow marriage of
persons within the same race, even though one party may express -
certain features which are more likely found in the other race. .More
important, they prohibit marriages between members of different
races, even though they do not possess the traits with which the
legislature — have been concerned.
Brief of Amici Curiae ° = St
(C) The Anti-Miscegenation Statutes Must Fail Be-
cause They Provide Standards of Proof Which
Are Impossible of Application and Are Uncon-
stitutionally Vague. _
Although the Virginia statute defines a ‘‘white”’ per-.
son as one who ‘‘has no trace whatever of any blood other
than Caucasian,’’ there is, of course, no such thing as
“‘white blood”’ or ‘‘Negro blood” as imagined by the Vir-
ginia legislature. But assuming that blood is interpreted
to mean ancestry, the state would have to prove beyond
- &@ reasonable doubt that Richard Loving had no ancestor
~- anywhere in his genealogy who was not ‘“*Caucasian’’. De-
fendant Richard Perry Loving, in ‘‘admitting’’ he was a
“‘white person’? within the meaning of Virginia’s penal
code (and thereby convicting himself) coutd not, in fact,
have made a knowing admission; nor could the state
otherwise have proved he was such a “ white person.’’
Similarly the anti-miscegenation statutes in the other
sixteen states are based oh the faulty concept of racially
different blood, prohibiting marriage between ‘‘whites”’ (or
“*Caucasians’’) and ‘‘Negroes’’ or persons of more than a
certain proportion of ‘Negro blood’. But even if they are
based on racial ancestry, these terms—which attempt to set
forth the essential elements of the-crime—are unconstitu-
_ tionally vague. ae :
‘It is obfuscating, in science, to use the words negroid,.
mongoloid, caucasoid. Related expressions such ag
colored, black, yellow, white, do not set any biological
contest, either. They have never been defined with
any degree of precision or consistency by those who -
use them.’? 76 ses Ee
It should be clear by now that these classifications cannot
be made or applied with precision.”
°
76. Beuttner-Janusch, op. cit. 184.
77. This Court has had occasion to consider the use of “Can-
- €asian” as a racial definition and to note its vagyeness : “Ft is at best
SS RSIS SU sites acidosis
32. +. ~~ Brief of Amici Curiae
. Furthermore, the courtroom proof of race necessarily
depends upon appearance. Proof that one’s father-came
from Africa is not ‘sufficient to make him a Negro—par-
. ticularly if his father had been the Prime Minister of
Rhodesia. A defendant would be considered a ‘‘Negro’’
only if he looked like a ‘‘Negro’’ to a judge or jury (lay- .
men) and that determination could be made only upon the
morphological basis- which scientists have rejected as an
unreliable indicator of race. Thus the appearance test
destroys any pretense of objectivity. —
‘‘Qwing to the variation within all races and the over-
lapping between contiguous races, it is unsafe to
classify persons by their appearance and it should
never be done for research purposes.’’
If the test is too dangerous for the purpose of scientific -
-- study. which carries with it no direct consequences to the
‘individual involved, certainly it is too dangerous in the
hands of a layman for the purposes of depriving a man of
his liberty for ten years. It is well-established that— 3
a conventional term, with an altogether fortuitous origin, which,
under scientific manipulation, has come to include far more than the
unscientific mind suspects. . According to Keane, for example (The
World’s Peoples, 24, 28, 307, et seq.) it includes: not only the Hindu
but some of the Polynesians (that is,the Maori, Tahitians, Samoans,
Hawaiians, and. others), the Hamites of Africa, upon the ground —
of the Caucasic cast of their features, though in color they range
from brown to black. We venture to think that the average ‘well-
informed white American would learn with some degree of astonish-
ment that the race to which he belongs is made up of such ‘hetero-
geneous elements.” US v Bhagat Singh Thind, 261 US 211.
The statutory classifications, which deal with arbitrarily selected
- and constitutionally vague concepts to begin with, become even more
arbitrary by the use of different tests for determining race. In Vir-
ginia, a person is “white” only if he is “pure” white, but he is “Negro”
if there is any taint of “Negro blood.” A more inconsistent and
‘arbitrary classification could hardly be imagined.
78. Laughlin, “Races of Mankind: Continental and Local”,
Anthropological Papers of the University of Alaska, Vol. 8, No. 2,
May, 1960; Reprinted in Lasker (ed.), Physical Anthropology,
1953-1961, Yearbook of Physical Anthropology, Vol. 9, pp. 149, 153.
Brief of Amici Curiae 33.
‘‘alaw fails to meet the requirements of the Due Proc-
ess Clause if it is so vague and standardless that it
leaves the public uncertain as to the conduct it pro-
hibits or leaves judges and jurors free to decide with-
out any légally fixed standards what is prohibited and
what is not in each particular case.’’ Giaccio v Pa., —
. 382 US 399, 402-403.
The anti-miscegenation statutes clearly run. afoul of this
test. On this basis alone, they cannot stand.
Conclusion.
For the foregoing reasons, it is respectfully submitted
that the judgment below should be reversed.
* Wiitram M. Magurtani,
Donatp W. Kramer, .
2010 Two Penn Center,
Philadelphia, Pennsylvania 19102,
Attorneys for Amict Curiae
Japanese American Citizens
League.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.