Brief Amicus Curiae — Loving v. Virginia

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FEB 28 1967

JOHN F. DAVIS, CLERK

' Supreme Court af the Batted States

October Term, i986

No. 395 —

LOVING, e¢ uz.,

- Appellants,

v. |

COMMONWEALTH OF VIRGINIA

On APPEAL FROM THE SuPREME CoURT oF -

_ APPEALS oF VIRGINIA -

“

BRIEF OF THE NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF COLORED PEOPLE AS

AMICUS CURIAE

Rosert L. Carrer

_. 20 West 40th Street

New York, New York 10018 = -

Anvrew D. WEINBERGER

70 West 40th Street

New York, New York 10018

Counsel for the National Association

for the Advancement of Colored People

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Statement of Saterent ae , : : * Prey See re ere ae,

ARGUMENT:

The Genetic Import of Interracial. Marriage is

Conclusive Proof that its Prohibition Cannot

- Be a Vital Legislative Objective senneewandenss

(1) The Idea of ‘Pure Races’? .........s0000.

(2) The Assumption That Race Crossing Results

in Biologically Inferior Offspring | aeses ewes

3) The Assumption That Cultural Level is De-

-pendent Upon. ae Attributes pseeeuaqe

Conclusion ceedeassececs cece sec esecececccccceses

Table of Cases Cited

‘Bridges v. Brown, Nevada District Court, Reno }

(Dec. 10, 1958, not reported) ..................

Brown v. Board of Education, 347 U.S. 483 .......

- Dodson v. State, 61 Arkansas 57, 31 S.W. 977 (1895)

._Eggers v. Olson, 104 Oklahoma ate 231 Pac. 483

CHEE -ccedscdccccscecdcccccecssedets Pecesseses

~ Green v. Alabama, 58 Ala. 190 (1877) ............. a

Lonas v. State, 50 Tenn. 287 (1871) ..:............

McLaughlin v. Florida, 153 So. 2d 1 (1963) .......

Meyer v. Nebraska, 262 U.S. 390, 399. (1923).......

Miller v. Lucks, 203 Miss. 824, 36 So. 2d 140. (1948)

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

350 U.S. 891 (1955), aff'd, 197 Va. 734, 90 S.E. 2d

849, app. dismissed, 350 U.S. 985 (1956) ........

. : PAGE

Ogama v. ONeill, Arizona Superior Court, - —

(Dec. 23, 1959, not reported) ........% ccc eeee

Perez v. Sharpe, 32.Cal. 2d 711, 198 P. 2d 17 (1948) -

3

3

Scott v: Georgia, 39 Ga. 321 (1869) ........... seas

State v. Jackson, 80 Mo. 175 (1883) ..-............ 3

. State v. Kennedy, 76 NO, 261 €1877) .o.0.020cc00 3

Statutory Authority Cited

Anti-Miscegenation Statutes ........... beeen Appendix

Other Authorities

Chung, A Report on: a Study of 180,000 Hawaiians

for 11 years, read at a conference of the New York

Academy of Sciences on Feb. 11, 1965, to be pub-

lished in its 1966, Annals =r Caos lusnakewanns 10°

Dobzhansky, The Race Concept i in Biology, 52 Scien-

tific Monthly 161 (Feb. 1941) ...............000% a

DuBois, 21 Crisis 106 (Editorial 1920) ........:... © 4

Dunn and Dobzhansky, wesw Race and Society

PR CUE Sb Wcchade deadcnwedndedecticvcces were

Eckard, How Many Negroes ‘Pass’, 52 Am. J. Soc.

Ge GE Wo kn nkccwacccacedacscccccsccaccccses = %

Ginzburg and Bray, The Uneducated 43 (1953): owen 12

Hager, Some Observations on the Relationship Be-

tween Genetics and Social: Science, 13 Poyphialty,

SS a edonan SER eie 1“

Hart, Selective Migration as a Factor in Child Wel-

fare in the United States, with Special Reference

to Iowa, 1 lowa Univ. Studies (1921) ........... 5

Interracial Marriage in the U.S.A., 74 Crisis (March

Eitechene. Mental Testing of Racial and National

Groups, Corrigan. (ed. ), Sctentific Aspects of the

Race Problem (1941) ...........ceeeeneeeeeeees

Krauss, Race Crossing in mm 32 J. z eredity 371

(191)... .eeeeeeeeeeeeeeeePereseeeeeeeeeanes |

oa se cciadeasa ce

Stern, Principles of Human. Genetics (1949). See

‘ especially Chapter 26, Genetic Aspects of Race

ME Nie. cacivb'ainknngncéensxneinececedéanedesa

. Stuckert, African Ancestry of the White American

-. Population, 58 Ohio J. Sct. 155 (1958) ..+........

Weinberger, A Reappraisal of the Constitutionality

of Miscegenation Statutes, 42 Cornell L. Q. 208

( 1957) ; ; revised to November 1, 1963 as Appendix

G in Montagu, Man’s Most Dangerous Myth: The

Fallacy of Race (ath Bd.) 402 (1964) ...........

Weinberger, Interracial . Marriage—Its Statutory ©

Prohibition, Genetic Import and vemenees 2 J.

ER

Yerkes (ed.), Psychological Examining in the United

States Army, 15 Mem. Nat’l Ac. Sci. 690 (1921) ...

. PAGE

<A

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IN THE

Supreme Court of the Hnited States

- October Term, 1966 “

oe

‘.> No. 395

, 4

“4

,

a

Lovina, et ua.,

AY

f CoMMONWEALTH oF VircINIA

‘Appellants,

On AppraL FROM THE SuPREME CouRT oF

APPEALS OF Vinernia

—_—

BRIEF OF THE NATIONAL ASSOCIATION FOR

‘THE ADVANCEMENT OF COLORED: PEOPLE AS

ave AMICUS CURIAE cea

_—

= my

ie vee Statement of Interes |

This brief amicus curiae is being filed by the National.

Association for the Advancement of Colored Péople .

. (NAACP) with consent of the ‘parties as provided under

- Rule 42 of the Rules of this Court.

The NAACP is a New York membership corporation

with approximately 1500 local affiliates in the 50 states and

‘the.District of Solumbia. The basic aims and purposes of

- the organization are to secure full and equal citizenship

rights for Negroes without: restrictions, burdens, limita-

tions or barrier§ based upon race or color. .The Negro in.

"the United States is engaged in what often seems to be a

never-ending struggle against laws, customs, practices,

usages and opinion relegating him to an inferior status.

_ Incident to this concept of his inferiority are state statutes,

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Re entries ee Ip tr ered cone Ae Bienct es

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such as nom iavelved here, which deny to Negro and white

persons the personal and individual right and’ freedom to

“marry each: other.

' Forty of the fifty states at one ‘time or another pro-

hibited Negroes : from marrying whites. Today seventeen

states prohibit various forms of interracial marriage.’ In

. the main, repeal of these poe nae in the northern

states immediately before and after the Civil War, ‘but

Pennsylvania repealed its prohibition in 1780 while Indiana

_-and Wyoming retained ‘their proscription until 1965. The

western states, with their proportionately higher population

of Orientalsy repealed their statutes in the post World War

- II period during which a new attitude was | developed: to-'

wards Japanese and Nisei. 3, . 4

The statutes are neither ‘adiiaal’ in ieee to coverage |

of the racial groups affected, nor in defining those. factors

which bring individuals within their. reach.* Thus, in

: ‘Mississippi, Mongolian-white marriages are. upgnl and: void, — 2

1 Alabama, Arkansas, Delaware, Florida, “ Ghorgia,

| Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla-

homa, South Carolina, Tennessee, Texas, Virginia; West Virginia.

These are the same 17 states which (together with the District of

Columbia) by statute required segregation in education prior to the

1954. Court ruling in Brown v. Board of Education, 347 U.S. 483.

- 2 Those states which at one time had anti-miscegenation statutes,

with the dates of repeal are: Arizona, 1962; California,

1959; Colorado, 1957; Idaho, 1959; Indiana, 1965; Iowa, 1851;

Kansas, 1857; Maine; 1883; Massachusetts, "1840; ‘Michigan, 1883;

Montana, 1953; Nebraska, 1963; Nevada, 1959; New Mexico, 1866;

North Dakota, 1955; Ohio, 1877; Oregon, 1951: Pennsylvania, 1780:

Rhode Island, 1881; South Dakota, 1957; Utah, 1963; Washington,

1867 ; he gga oa 1965. (The repeals by Kansas, New. Mexico and

Washington occurred while they were territories. )

There is-no federal policy against intermarriage. None of the

islands or possessions has such statutes. Apparently Guam at one

time had such prohibitions but these were abolished in 1951. (Public

Law 19, a: |

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while in North Carolina they are permitted. In Arkansas,

Florida and Oklahoma, Negro-white marriages are void.

In Arkansas, a Negro is defined as ‘fany person who has

in his or her veins any negro blood.whatever’’; in Florida,

one ceases to be a Negro when he has less than ‘one-eighth

of... African or negro blood’; and in Oklahoma, anyone

not of ‘‘s\frican descent?’ is miraculously transmuted into

a member of the white race. Mongoiians,. Malays, Chinese,

Japanese, Indiana, Cherokees, Half-breeds, and Mestizos

are barred from marrying. white persons by some of the

statutes, but all bar the marriage of. Negro and white

‘persons. Anti-miscegenation statutes ‘have been upheld

_ by the highest court of ten of the seventeen states and

enforced in the lower courts in the other seven states,

In California,* Nevada,’ and Arizona ® the statutory pro-

hibition was declared unconstitutional, and subsequently

the laws were repealed. oy

°Green v. Alabama, 58 Ala. 190 (1877) ; Dodson v. State,. 61°

(Ark. 57, 31 S. W. 977 (1895) ; McLaughlin v. Florida, 153 So. 2d I

(1963) ; Scott v. Georgia, 39 Ga. 321 (1869) ; Miller v. Lucks, 203

Miss. 824, 36 So. 2d 140 (1948) ; State v.. Jackson, 80 Mo. 175

(1883) ; State v.. Kennedy, 76 N. C. 251 (1877) ; Eggers v. Olson,

104 Okla, 297, 231 Pac. 483°(1924) ; Lonas v. State, 50 Tenn, 287

(1871) ; Naim v. Naim, 197 Va. 80, 87 S..E. 2d 749; remanded, 350

U. S. 891 (1955), aff'd, 197 Va. 734, 90 S."E. 24 849, app. dismissed,

350 U. S. 985 (1956). | :

* Perez v.- Sharpe, 32 Cal. 2d 711, 198 P. 2d 17 (1948).

™ Bridges v. Brown, Nevada District Court,Reno (Deeember 10,

1958, not reported). os ;

‘© Ogama v. O'Neill, Arizona Superior Court, Tucson (December _

23, 1959, not reported). | : |

® California 1959, Nevada 1959, Arizona 1962.

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The ‘ethnic minorities who are barred from marrying

persons of their choice ew find these statutes

repugnant. As Dr: DuBois said:

But’ the impudent and vicious ‘demand that all

colored folk shall: write themselves down as brutes

by a general assertion of their unfitness to marry

other decent folk, i is a weaemens 19

Substantial ‘injury ‘to more tangible interests is, more-

over, often a factor to be weighed. In addition to the

prohibition of marriage, criminal penalties ‘aré’ usually

prescribed,’ and the offspring of such marriage are de-

~ elared illegitimate. Other ‘individual rights,’ suchas the —

marital privilege available to a defendant in a criminal

prosecution, and the right to receive property bequeathed

by will, or passing under the laws of intestacy, are affected.

‘No authoritative statistics. are available as to the num-

ber of interracial marriages in the United States. How-

ever, one may empirically observe that interracial marriage

is far from unknown.. While, of course, every mixed couple

seen in the street and in public places is not married, some

of them are, and we may assume that most of those seen

with children. are a family.

It is estimated that there were 25,000 Negro-white

marriages 30 years ago and that there are 50,000 in the

nation today. There have been some larger and some

smaller estimates, but to establish an accurate figure is,

impossible. An average of the opinions of those who have

ventured to speculate is that there are 50,000 Negro-white

' marriages in the United States.

10 DuBois, 21 Crisis 106 —— 1920). ;

11 See Appendix.. : ie) °

12 See Weinberger, A Ressseniinl ew the Constitutionality of

tion Statutes, 42 Cornell L. Q. 208 (1957),-revised to No-

vember 1, 1963 as Appendix G in Montagu, Man’s Most Dangerous

Myth: The Fallacy of Race (4th Ed.) 402 (1964).

anes _

5

_ However, all these estimates are limited'to acknowledged.

_Negro-white marriages. None of them take igto account

the marriages of the substantial number’ of Negroes who

have passed into the white community, severing all ties with

Negro friends and relatives, and are known as white."*

’ It is the burden of this brief to‘establish that there is no

rational or scientific basis upon which a statutory prohibi-

tion against marriage based on race or color alone can be

justified as furthering a valid legislative purpose. The

right to-marry is a civil right, and it is, therefore, within

~ the purview of the equal protection clause of the Fourteenth

Amendment. The Court, in 1923, though anti-miscegena-

tion laws were not at issue, said: ‘‘Without danbt, it [the

- Fourteenth Amendment] denotes not merely freedom from

. bodily restraint but also the right of the individual to... .

marry, establish a home and bring up children”? * /

While there is apparent equal treatment of the different

races and ethnic groups in these anti miscegenation statutes,

it is self-evident, even if the doctrine of ‘‘separate but ~

equal’’ were still valid, that it cannot apply in the-marital —

relationship, Nor can it be said that when two persons are

denied the right to marry because of race that they may find’

equal opportunity within their own-group. The choice of a

spouse is a subjective act, the act of an individual and not

that of a race or group. It follows tliat any legislative classi-

fication that prohibits persons from marrying each: other

18 Dr. Robert P. Stuckert in 1958 estimated that 15,550 Negroes

per year passed into the white population during: 1941-1950, and °

that in the preceding five years the annual mean passing rate ‘was

4,270. (Stuekert, African Ancestry of the White American Population,

58 Ohio J. Sci. 155 (1958). On this point see also Hart, Selective

Migration as q Factor in Child Welfare.in the United States, with .

Special Reference to Iowa, 1 Iowa Univ. Studies (1921) ).; Eckhard,

_How Many Negroes “Pass”? 52 Am. J. Soc.-498 (1947); Wein-

berger, “Interracial Marriage—Its Statutory Prohibition, Genetic

Import, and Incidence, 2 J. Sex Res. 157 (1966) ; and Weinberger,

Interracial Marriage in the U.S.A., 74 Crisis (March 1967).

| 14 Meyer v. Nebraska, 262 U. S. 390, 399 (1923). _

6

‘must, therefore, relate to individuals and. be based upon

personal, not. group. characteristics.

Negroes. cannot be. considered to have obtained equal —

rights or to have gained full freedom as full-fledged citizens

of the United States until they are free to make the indi-

vidual decision as to whom they will marry without legisla-

tive interference or proscriptions based solely on the acci-

dent of their color. It is to assert this individual right to

freedom and full-fledged citizenship that the NAACP is

filing this brief. The basic purpose of the Fourteenth

Amendment to bar all differentiation as between Negro and

white persons will be frustrated as long a8 the instant stat-

ute and its counterparts in other states is found to be

consistent with the federal Constitution and national policy.

ARGUMENT

The Genetic Import ‘of Interracial Marriage is -

Conclusive Proof that its Prohibition Cannot Be

a Vital Legislative Objective

Statutes prohibiting“ marriage on grounds other than

racial ones have a: place in society. Prohibition of mar-

riages of feeble-minded persons or of persons with commun-

icable diseases are not uncommon. Each ‘of these is

supported by demonstrable scientific knowledge that such

marriages present a potential danger to society through

physically or mentally ill offspring. In these statutes, the

requirements of a valid legislative objective and a connec-

tion between the legislation and the ends sought have been

met.

In support of the statutes prohibiting heen mar-

riage, the-same argument is offered. Could it be demon-

strated that biologically inferior chil would be the

- result of such marriages, the need for 4 rational legislative

policy would be satisfied. While some courts have at-

4

tempted to show that such prohibitions are grounded in:

reason, ordinarily they simply repeat outmoded and un-

scientific genetical conclusions. Thus a Georgia court |

said:

The amalgamation of the races is not cally un-" 7

natural, but it is always productive of deplorable

results. Our daily abservation shows us that the

offspring of.these unnatural connections are gen-

verse | 54" - m— and YY they are

erior in physi eve opment al — to

* the full blood of either race.’® -

That-was in 1869, but despite Mendel and the twentieth

' century science of genetics, in 1955 the Virginia Supreme

Court found the ak object to be ‘‘to preserve

the racial integrity of ... [the state’s] ‘citizens . .. [and]

to regulate the marriage relation so that it will not have

a mongrel breed of citizens.” **

The rationale of the state ete. is sidered to both

science and jurisprudence. They adhere to and perpetuate

three erroneous assumptions: (1) that ‘‘pure races”’ either

exist in the present or have existed in the past; (2) that

crossing between different racial groups results in bio- _

logically inferior offspring; (3) that cultural level is.

dependent upon racial attributes, Contemporary physical

anthropology and human genetics disprove all three of

these assumptions.

(1) The Idea of “Pure Races”

To speak of race ‘‘mixtures”’ or ‘‘mongrelizatign’’ is i

* to imply that ‘‘pure races”’ either still exist or have existed

in the past. Contemporary biological research and theory

refute both of .these implications. The idea of ‘‘pure’’

racial groups, either past or present, has long been aban-

15 Scott v. Georgia, 39 Ga. 321, 323 (1869).

_ 18 Naim v. Naim, 197 Va. 80, 89 (1955).

»

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| doned by modern biological and social science. As Profes- - |

| sors L. C. Dunn and Th. Dobzhansky said:

Race mixture has been going on during the whole

“e recorded history. Incontrovertible evidence from

— Bos eo acreage 5 aac that even in

pre-t ry, at the very dawn o anity, mixing

of different stocks, at least occasionally, took place.*

‘The scientific position concerning the idea of “pure |

races’’ is contained in this statement by Dr. Dobzhansky:

The idea of a pure race is not even a legitimate

abstraction; it is a subterfuge used to cloak one’s

ignorance of the phenomenon of racial variation. as

The idea of ‘‘pure races’’ is refuted by paleontological

and genetical studies.of human evolution. All mankind is ©

a member of a single species, homo sapiens. All known

physical variations among men, therefore, continue to take

place within species boundaries, not without. When con-

sidering human evolution and modern ‘‘races’’, we are not

dealing with separate species. Interbreeding among human

groups manifesting differences in physical attributes pro-

duces live, fertile offspring—the mark of membership in

a single species. It has been established empirically that

the offspring of mixed marriages are no less physically

and psychologically sound than those where both ns .

_ are of the same race.”*

Under the sponsorship of the United Nations Educa- -

. tional, Scientific and Cultural Organization (UNESCO),

thirteen scientists. representing physical anthropology and

human genetics met in June 1951 to consider the prepara-

an and Dobshansky, ata Race and Society us

. _ 18 Dobzhansky, The Race Concept in Biology, S2. Scientific

Monthly 161 (Feb. 1941).

1° Reuter, The Mulatto in the United States 117 et seq. (1918).

orn ee ee ne .

\" ae Gor

. as “

tion of a statement which would effect a crystallization of .

scientific theory and opinion on matters of race'and race

differences. An additional seventy renowned scientists

contributed to its final form. The Statement.on the Nature

of Race and Race Differences was:released by ened in

September of 1952.

The Statement at Article 7 said concerning ‘‘pure

' paces’?; -

‘“pure’’ races. Skeletal rem provide the basis

of our limited knowledge abput earlier races. In

regard to raee mixture, the evidence points to the

fact that human hybridization has ae ing on

for an indefinite but considerable time. one

of the processes of race formation and bese extinc-

tion or absorption is by means of hybridization be-

tween races. As there is no reliable evidence that

disadvantageous effects are produced thereby, no

biological justification exists for prohibiting inter-

marriage between persons of different races. (Em-

phasis added)

. There i is.no evidence for _— of so-called.

.. That. there is still popular alia ‘to the contrary is

_* shown by an Associated Press dispatch from Bastrop, La.,

dated November 2, 1955, which read in part:

The Morehouse Parish School Board has voted

unanimously to discontinue use of a ninth-grade -

general science textbook [Science for Better Living]

which some persons say ‘‘contains un-American

ideas on the origin of races.’’

. This passage was among those. cited as objection-

able:

‘Living things which lee to recognizable

kinds, which are like in most physical traits, and

which breed freely with each other, are said to belong

.to one species.. All men on this earth belong to one

species—homo sapiens,’’

Persons who object to the book said this was a

plain insinuation that races ‘‘breed freely with each

other’? and is a dangerous Socialistic trend of

ms thought to instill into the younger generation.

Se ee Sa

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(2) The Assumption Phat Race Crossing Results

in Biologically Inferior Offspring

Ultimately, stagutes ‘prohibiting interracial marriage

‘are a reflection of the popular but erroneous stereotype

that such marriages give rise to biologically inferior off-

spring. The fact that the stereotype persists even when

the weight of scientific evidence is against it testifies to.

its ideological rather than scientific character. Even those

who are most vehement about the deleterious effect of —

intermarriage on offspring accept the inconsistent and

equally fallacious belief that Negroes of outstanding dis-

“tinction always owe their intellectuality to their partial

white ancestry. The research and literature assessing the

biological consequences of race-:)*ssing includes no indica-

tion of either disharmonious constitution 2° or hybrid

-vigor.2*, Independent evaluations of this literature tend to

conclude that. prohibitions against interracial marriage are .

primarily social and psychological and-not biological.

(3) The Assumption That Cultural Level is Be:

pendent Upon Racial Attributes

Statutes prohibiting interracial marriage Te per-

' petuate another assumption that is totally inconsistent with

valid knowledge pertaining to the relationship between race,

- progress, and cultural achievement. There is no evidence

to sustain the contention that cultural level is dependent

upon racial or biological attributes.

2 Stern, Principles of Human Genetics (1949). See —

Chapter 26, Genetic Aspects of Race Mixture.

2i One should not overlook that human hybridization is random

and not selective as with animals and plants. Also see Krauss, Race

Crossing in Hawaii, 32 J. Heredity 371 (1941) and Chung,

A Report on a Study of 180,000 Hawaiians for 11 Years, read at a

conference of the New York Academty of Sciences on: Feb. 11, 1965,

a Gopi .

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Race, in its scientific dimension, refers only to the bio-

genetic and physical attributes manifest by a specified pop- -

ulation. It does not, utider any circumstances, refer to cul-

ture (learned behavior), language, nationality, or religion.

One of the fundamental axidms of both physical and cultural -

anthropology i is that culture (behavior) is independent of

‘race.’ Civilizations and cultural achievement are not based

on genes or physical characteristics. There are no great

cultural differences between white and Negro Americans.

The sub-cultural differences of economic status, education, @#

health, and family orientation are strata differences in both

groups and not differences between Negroes and whifes.

‘The difference in family structure is that the majority of

-low income Negro families are matriarchal as the employ-

ability of Negro women far exceeds the opportunities for

employment of-Negro men. But this will change when

economic discrimingtion i is ended. Prof of this is found in

- the present conformance to what is ted as the Ameri-

- can norm in the professional and other high income classes.. -

There are.no known racial or biological barriers to the ac-

quistion or creation of any cultural tradition, a fact amply .

demonstrated by the creation and dissemination of cultural

innovations in the United States irrespective of the —

composition of the population. ;

The scientific material available at siiaied ae not —

justify the conclusion that inherited genetic or racial differ-

ences are a factor in producing the differences between cul- «

tures. Cultural-and civilizational factors are transmitted

by learning and education, not by the genes. In the Army

. Alpha Tests of World War I Negroes from the Northern

e states of Ohio, Illinois, Indiana and New York scored higher

than white recruits from almost all the Southern states.

Similarly, the World War II rate of rejection for mental

22 Yerkes (ed. ), Psychological Examining in the United States

‘Army, 15 Mem. Nat'l Ac. Sci. 690 (1921).

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+ 12 -

deficiency by the Selective Service System showed that

while Negro illiteracy, exceeded white illiteracy in the

South, ’white illiteracy in the Southeast exceeded Negro -

illiteracy in the Northwest and the far West.”* Dr. Otto-

' Klineberg has corroborated these results by te&ts made on

‘northern and southern Negro children.** Economic-socio-po-

. litical factors and not race determine. education and health.

There are no racial monopolies on cultural achievement.

Historical and comparative studies of human culture show

that vast changes have faken place i in the-economic, political,

and social institutions ‘of a given society without any, or

with little, change in the racial or genetic composition of

the population. concerned.

If the weight of the scientific evidence formerly preva-

lent justified the fear of biologically inferior offspring

through intermarriage, those theories have been proven

false. Legislative determination cannot reverse empirical.

fact. Constitutional construction cannot remain unchanged

when orginally predicated upon a false premise.

The statutes are self-contradictory, containing within

themselves certain permissible areas of miscegenistic mar-

riage. Apparently, ‘‘scientific’’ thought varies from state

to state. ‘As has been shown, some legislators see no danger _

in white-Mongolian marriages, while others-do. | None, with

the exception of North Carolina and Maryland, perceive any

“evidence of deterioration in the.offspring of intermarriage

between any of the’ races other than white. Even as to

Negroes, the degree of Negro genes thought sufficient to

cause contamiration varies from state to state, and in the

most absurd instance, Colorado (until 1957) prohibited in.

one part of the state interracial marriages which were

28 Ginzburg and Bray, The Uneducated, 43 (1953).

24 Klineberg, Mental Testing of Racial and -National Groups,

Corrigan (ed. ‘ Scientific Aspects of the Race Problem (1941).

. ‘ ae ab

ery

Pn eee ae ee ee

e .

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2

_ permitted in another part of the state.?* Equally genetically

nonsensical is North Carolina’s prohibiting marriage be-

tween a Cherokee Indiah of Robeson County and a N. egro,

* with no such restriction against. Cherokees of other counties

nor against Indians other than Cherokees: regardless of

~~ their county.* =»

It is not stientifically possible to determine whether a

person is “‘one-eighth Negro”’, ‘‘one-half Malay’’, or is

one of the many varieties of fractionated racial member-

‘ships. Such terms as ‘‘ -breeds’’, “‘octaroons’’, ‘‘full-

bloods”’, and the like, are misleading when used.in anything

~ but a fictional or social \sense; for example, the popular

expression that a person is ‘‘one-quarter Chinese’? has no . -

necessary biological or genetic meaning—it does mean,

_pragmatically, only that one of a set of grandparents of

‘that person was socially defined as a person of Chinese

ancestry. It carries no genetically meaningful import, for

example, that one-quarter of the’ genes of that person are

‘“‘Chinese’’. Genes are not known to be transmitted in any

such predetermined or culturally labeled quantities. Every

gene derived from a non-white ancestor does not neces-

sarily relate to the racial characteristics of the individual.

Many of these inherited genes do not distinguish the indi-

- Vidual from one of entire white ancestry being simply genes

- common to all races. Concerning this, Professor Don J.

Hager remarked: :

Laws prohibiting marriage between ‘‘whites and

persons having one-eighth or more of Negro blood’?

aes areas ° z :

25.Colo. Rev. Stat. c. 90 § 1-2 (1953). Sh ena

All marriages entered into between Negroes or mulattoes of

either sex, and white persons are declared to bé absolutely void.

Nothing in this section shall be so cbnstrued as to prevent the people

living in that portion of the state acquired from Mexico from marrying

according to the customs of that country. , |

26 See Appendix

\

—_

~ - are compounded of legal fiction oes genetic non-

. gense2* .

ee - Conclusion

When Sabjected to the test of the Fourteenth Amend-

ment, the prohibition of interracial marriage must be found

unconstitutional. Not only do the anti-miscegenation

statutes have no scientific basis, but their philosophy is

_ an affront to millions of our citizens.

Repugnant as is the rationale of tinea practices’’,

at least that.statement has the virtue of honesty as dis-

. tinguished from the biologic absurdity of ‘‘mongrel breed”’

and ‘‘weak and effeminate offspring’. But the right of

equal proteetion_may not be deniéd even though a sub-

stantial segment of the "population finds ~ it—distasteful.

Desegregation of the schools, housing, and public facilities,

and freedom to vote are being required despite the violence

‘of -the oppositién. -

‘Classification by race based upon non-existent racial ,

traits does not serve any v legislative purpose but

merely continues a classification of Americans as superior

‘and inferior in contradiction to the American cone cept of

_ equality, = os |

Wherefore, for the reasons Levehsaheve stated and

for the reasons set forth in appellants’ brief, the judg-

ment of the court below should be reversed.

‘Respectfully submitted,

Rosert L. Carter

20 West: 40th Street

New York, New York 10018

Andrew D. WEINBERGER

- 70 West 40th Street

New York, New York 10018

. Counsel for the National Association

an for the Advancement of Colored People

97 Hager, Some. Observations on the Relationship Between |

Genetics and Social Science, 13 Psychiatry 371 (1950).

- 7

yore RADA WH AES NECN ORT AE DT AEE OR EN ONE rR One ee oe — —

> 11 tt AD BIS NR aan Schmei wrtboa's

“15

APPENDIX

STATE LEGISLATION pre MIXED MARRIAGES

_ State and

Statutory Reference

_ ALABAMA

Const. § 102;

Code tit. 14,

§ 360

: ARKANSAS

Stat. § 55-104

“Stat.” § 741. 11

‘GEORGIA

-Code § 53-106;

Chap. 53.3 —

KENTUCKY

Rev.. Stat

§ 402.020

LOUISIANA

Civ. Code art.

94

IN THE UNITED STATES

. PROHIBITED MARRIAGES e

Prohibited from

: Marrying Whites > and ¢

“negro or the descendant

of any negro”

“any person who has in her

or his veins any negro blood °

whatever”

“a negro or mulatto”

“a pegro .. . or a person of

negro descent to fourth

generation, inclusive”

“It shall be unlawful for.a

white. person .to marry any-

one except a white person.”

“White persons are only

persons of the white or

Caucasian race who ‘have *

Penal Offense

Felony (Code tit.

14, § 360)

Misdemeanor

(Stat. § 55-105)

Misdemeanor

(Code tit. 13,

§ 102)

Felony (Stat.

§ 741.12) .

; Fey (Code

*~

no ascertainable trace of

— wig African, West

ongolian, Japa-

i or Chinese blood in

their Veins.”

7 negro or mulatto”

“persons of color”

Felony (Stat. :

§-402-990)

Felony (Crim

Code art. “146-79

“a negro . . . oF a person of

negro descent to the. third

~ generation inclusive ...a —~

person of the Malay race”.

“a negro or mulatto or per-

son who shall have one-

‘eighth or more of negro

blood or .:. . a Mongolian

or person.who shall have

‘ - One-eighth or more of Mon-

Rev. Stat. °

'§§ 451.020

. and 563.240

NORTH CAROLINA

. Const. art.

. XIV, $8;

Gen. Stat.

§§ 14-181

and 5¥-3

TENNESSEE

Const. art. II,

§ 14, Code

§ 36-402

golian blood.”

“negroes . . . and Mongo-

-.lians.” Negroes are defined

as persons “having one-

eighth part or more negro ©

blood.” a

“a negro or Indian. . . or

a person of negro or Indian

- descent to the third genera-

tion, inclusive’’.¢

“any person of African de-

scent.” pam

‘

“any. mulatto, half-breed,

Indian, negro or .mestizo.” .

“negroes, mulattos, or per-

sons of mixed blood de-

scended from a negro to

the third generation, inclu-

sive.” ‘ »

J

. Penal Offense

“A white woman

who shall suffer

than five. years.”

(Code art.’ 27, © -

§ 513)

Felony (Code ©

§ 2339)

Felony (Rev. Stat.

§ 563.240)

Misdemeanor, but

sentence miay be up

to ten years. (Gen.

Stat. § 14-184)

Felony (Stat. tit.

43, § 13)

Misdemeanor

(Code § 20-7)

Felony (Code

-§ 36-403)

é

a RIN Sa ee BON

Texas” “Africans pr the descend- Felony (Penal

Rev. Civ. Stat. ants of Africans.” « Code art. 492)

art. 4607 .

VIRGINIA “It shall be unlawful for Félony (Code

Code § 20-54 any white person to marry § 20-59)

Oo - any save a white person, or ~

- a person with no other ad-

oi mixture of blood than white

and American Indian . ...

the term ‘white person’ shall .

apply to such person ‘who

has no trace whatever of

any blood other than Cau-

casian; but persons who

have one-sixteenth or less

of the blood of the Amer- .

. ican Indian and have no -

other~ non-Caucasic blood

shall be deemed to be

- white persons.” : .

' WEST VIRGINIA “a negro.” : . White persons may

Code § 4701(I) be fined not more

. » than $100 and im-

«In Wést Virginia, though the marriage Ts performed in violation

of the prohibitory statute, it is valid until such time as a court de-

clares it a nullity. In all the other states listed the marriage is void.

. >In Maryland, a marriage between “a negro and a member of ;

. the Malay race, a person of negro descent, to the third generation,

inclusive, and a member of the Malay race” is also prohibited.

¢In North Carolina.a marriage between “a Cherokee Indian of

Robeson County and a negro, or between a Cherokee Indian of

Robeson County and a person of negro descent to the third genera-

tion” is also prohibited.