SYLLABUS: Virginia's statutory
scheme to prevent marriages between persons solely on the basis
of racial classifications held to violate the Equal Protection
and Due Process Clauses of the Fourteenth Amendment. Pp. 4-12.
COUNSEL: Bernard S. Cohen and Philip
J. Hirschkop argued the cause and filed a brief for appellants.
Mr. Hirschkop argued pro hac vice, by special leave of Court.
R. D. McIlwaine III, Assistant
Attorney General of Virginia, argued the cause for appellee. With
him on the brief were Robert Y. Button, Attorney General, and
Kenneth C. Patty, Assistant Attorney General.
William M. Marutani, by special
leave of Court, argued the cause for the Japanese American Citizens
League, as amicus curiae, urging reversal.
Briefs of amici curiae, urging
reversal, were filed by William M. Lewers and William B. Ball
for the National Catholic Conference for Interracial Justice et
al.; by Robert L. Carter and Andrew D. Weinberger for the National
Association for the Advancement of Colored People, and by Jack
Greenberg, James M. Nabrit III and Michael Meltsner for the N.
A. {***2} A. C. P. Legal Defense & Educational Fund, Inc.
T. W. Bruton, Attorney General,
and Ralph Moody, Deputy Attorney General, filed a brief for the
State of North Carolina, as amicus curiae, urging affirmance.
JUDGES: Warren, Black, Douglas,
Clark, Harlan, Brennan, Stewart, White, Fortas
OPINIONBY: WARREN
OPINION: {*2} {**1818} MR. CHIEF
JUSTICE WARREN delivered the opinion of the Court.
This case presents a constitutional
question never addressed by this Court: whether a statutory scheme
adopted by the State of Virginia to prevent marriages between
persons solely on the basis of racial classifications violates
the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. n1 For reasons {**1819} which seem to us to reflect
the central meaning of those constitutional commands, we conclude
that these statutes cannot stand consistently with the Fourteenth
Amendment.
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n1 Section 1 of the Fourteenth Amendment provides:
"All persons born or naturalized
in the United States and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
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{***3} In June 1958, two residents of Virginia, Mildred Jeter,
a Negro woman, and Richard Loving, a white man, were married in
the District of Columbia pursuant to its laws. Shortly after their
marriage, the Lovings returned to Virginia and established their
marital abode in Caroline County. At the October Term, 1958, of
the Circuit Court {*3} of Caroline County, a grand jury issued
an indictment charging the Lovings with violating Virginia's ban
on interracial marriages. On January 6, 1959, the Lovings pleaded
guilty to the charge and were sentenced to one year in jail; however,
the trial judge suspended the sentence for a period of 25 years
on the condition that the Lovings leave the State and not return
to Virginia together for 25 years.
He stated in an opinion that: "Almighty
God created the races white, black, yellow, malay and red, and
he placed them on separate continents. And but for the interference
with his arrangement there would be no cause for such marriages.
The fact that he separated the races shows that he did not intend
for the races to mix."
After their convictions, the Lovings
took up residence in the District of Columbia. On November 6,
1963, they {***4} filed a motion in the state trial court to vacate
the judgment and set aside the sentence on the ground that the
statutes which they had violated were repugnant to the Fourteenth
Amendment. The motion not having been decided by October 28, 1964,
the Lovings instituted a class action in the United States District
Court for the Eastern District of Virginia requesting that a three-judge
court be convened to declare the Virginia antimiscegenation statutes
unconstitutional and to enjoin state officials from enforcing
their convictions. On January 22, 1965, the state trial judge
denied the motion to vacate the sentences, and the Lovings perfected
an appeal to the Supreme Court of Appeals of Virginia.
On February 11, 1965, the three-judge
District Court continued the case to allow the Lovings to present
their constitutional claims to the highest state court.
The Supreme Court of Appeals upheld
the constitutionality of the antimiscegenation statutes and, after
{*4} modifying the sentence, affirmed the convictions. n2 The
Lovings appealed this decision, and we noted probable jurisdiction
on <=2> December 12, 1966, 385 U.S. 986.
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n2 <=3> 206 Va. 924, 147 S. E. 2d 78 (1966).
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{***5} The two statutes under which appellants were convicted
and sentenced are part of a comprehensive statutory scheme aimed
at prohibiting and punishing interracial marriages. The Lovings
were convicted of violating @ 20-58 of the Virginia Code: "Leaving
State to evade law. -- If any white person and colored person
shall go out of this State, for the purpose of being married,
and with the intention of returning, and be married out of it,
and afterwards return to and reside in it, cohabiting as man and
wife, they shall be punished as provided in @ 20-59, and the marriage
shall be governed by the same law as if it had been solemnized
in this State. The fact of their cohabitation here as man and
wife shall be evidence of their marriage."
Section 20-59, which defines the
penalty for miscegenation, provides: "Punishment for marriage.
-- If any white person intermarry with a colored person, or any
colored person intermarry with a white person, he shall be guilty
of a felony and shall be punished by confinement in the penitentiary
{**1820} for not less than one nor more than five years."
Other central provisions in the
Virginia statutory scheme are @ 20-57, which {***6} automatically
voids all marriages between "a white person and a colored person"
without any judicial proceeding, n3 and @@ 20-54 and 1-14 which,
{*5} respectively, define "white persons" and "colored persons
and Indians" for purposes of the statutory prohibitions. n4 The
Lovings have never disputed in the course of this litigation that
Mrs. Loving is a "colored person" or that Mr. Loving is a "white
person" within the meanings given those terms by the Virginia
statutes.
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n3 Section 20-57 of the Virginia Code provides: "Marriages void
without decree. -- All marriages between a white person and a
colored person shall be absolutely void without any decree of
divorce or other legal process." Va. Code Ann. @ 20-57 (1960 Repl.
Vol.).
n4 Section 20-54 of the Virginia
Code provides: "Intermarriage prohibited; meaning of term 'white
persons.' -- It shall hereafter be unlawful for any white person
in this State to marry any save a white person, or a person with
no other admixture of blood than white and American Indian. For
the purpose of this chapter, the term 'white person' shall apply
only to such person as has no trace whatever of any blood other
than Caucasian; but persons who have one-sixteenth or less of
the blood of the American Indian and have no other non-Caucasic
blood shall be deemed to be white persons. All laws heretofore
passed and now in effect regarding the intermarriage of white
and colored persons shall apply to marriages prohibited by this
chapter." Va. Code Ann. @ 20-54 (1960 Repl. Vol.).
The exception for persons with
less than one-sixteenth "of the blood of the American Indian"
is apparently accounted for, in the words of a tract issued by
the Registrar of the State Bureau of Vital Statistics, by "the
desire of all to recognize as an integral and honored part of
the white race the descendants of John Rolfe and Pocahontas .
. . ." Plecker, The New Family and Race Improvement, 17 Va. Health
Bull., Extra No. 12, at 25-26 (New Family Series No. 5, 1925),
cited in Wadlington, The Loving Case: Virginia's Anti-Miscegenation
Statute in Historical Perspective, 52 Va. L. Rev. 1189, 1202,
n. 93 (1966).
Section 1-14 of the Virginia Code
provides: "Colored persons and Indians defined. -- Every person
in whom there is ascertainable any Negro blood shall be deemed
and taken to be a colored person, and every person not a colored
person having one fourth or more of American Indian blood shall
be deemed an American Indian; except that members of Indian tribes
existing in this Commonwealth having one fourth or more of Indian
blood and less than one sixteenth of Negro blood shall be deemed
tribal Indians." Va. Code Ann. @ 1-14 (1960 Repl. Vol.).
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{***7} {*6} Virginia is now one of 16 States which prohibit and
punish marriages on the basis of racial classifications. n5 Penalties
{**1821} for miscegenation arose as an incident to slavery and
have been common in Virginia since the colonial period. n6 The
present statutory scheme dates from the adoption of the Racial
Integrity Act of 1924, passed during the period of extreme nativism
which followed the end of the First World War. The central features
of this Act, and current Virginia law, are the absolute prohibition
of a "white person" marrying other than another "white person,"
n7 a prohibition against issuing marriage licenses until the issuing
official is satisfied that {*7} the applicants' statements as
to their race are correct, n8 certificates of "racial composition"
to be kept by both local and state registrars, n9 and the carrying
forward of earlier prohibitions against racial intermarriage.
n10
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n5 After the initiation of this litigation, Maryland repealed
its prohibitions against interracial marriage, Md. Laws 1967,
c. 6, leaving Virginia and 15 other States with statutes outlawing
interracial marriage: Alabama, Ala. Const., Art. 4, @ 102, Ala.
Code, Tit. 14, @ 360 (1958); Arkansas, Ark. Stat. Ann. @ 55-104
(1947); Delaware, Del. Code Ann., Tit. 13, @ 101 (1953); Florida,
Fla. Const., Art. 16, @ 24, Fla. Stat. @ 741.11 (1965); Georgia,
Ga. Code Ann. @ 53-106 (1961); Kentucky, Ky. Rev. Stat. Ann. @
402.020 (Supp. 1966); Louisiana, La. Rev. Stat. @ 14:79 (1950);
Mississippi, Miss. Const., Art. 14, @ 263, Miss. Code Ann. @ 459
(1956); Missouri, Mo. Rev. Stat. @ 451.020 (Supp. 1966); North
Carolina, N. C. Const., Art. XIV, @ 8, N. C. Gen. Stat. @ 14-181
(1953); Oklahoma, Okla. Stat., Tit. 43, @ 12 (Supp. 1965); South
Carolina, S. C. Const., Art. 3, @ 33, S. C. Code Ann. @ 20-7 (1962);
Tennessee, Tenn. Const., Art. 11, @ 14, Tenn. Code Ann. @ 36-402
(1955); Texas, Tex. Pen. Code, Art. 492 (1952); West Virginia,
W. Va. Code Ann. @ 4697 (1961).
Over the past 15 years, 14 States
have repealed laws outlawing interracial marriages: Arizona, California,
Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada,
North Dakota, Oregon, South Dakota, Utah, and Wyoming.
The first state court to recognize
that miscegenation statutes violate the Equal Protection Clause
was the Supreme Court of California. <=5> Perez v. Sharp, 32 Cal.
2d 711, 198 P. 2d 17 (1948). {***8}
n6 For a historical discussion
of Virginia's miscegenation statutes, see Wadlington, supra, n.
4.
n7 Va. Code Ann. @ 20-54 (1960
Repl. Vol.).
n8 Va. Code Ann. @ 20-53 (1960
Repl. Vol.).
n9 Va. Code Ann. @ 20-50 (1960
Repl. Vol.).
n10 Va. Code Ann. @ 20-54 (1960
Repl. Vol.).
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I. In upholding the constitutionality of these provisions in the
decision below, the Supreme Court of Appeals of Virginia referred
to its 1955 decision in <=6> Naim v. Naim, 197 Va. 80, 87 S. E.
2d 749, as stating the reasons supporting the validity of these
laws. In Naim, the state court concluded that the State's legitimate
purposes were "to preserve the racial integrity of its citizens,"
and to prevent "the corruption of blood," "a mongrel breed of
citizens," and "the obliteration of racial pride," obviously an
endorsement of the doctrine of White Supremacy. <=7> Id., at 90,
87 S. E. 2d, at 756. The court also reasoned that marriage has
traditionally been subject to state regulation without federal
intervention, and, consequently, the regulation {***9} of marriage
should be left to exclusive state control by the Tenth Amendment.
While the state court is no doubt
correct in asserting that marriage is a social relation subject
to the State's police power, <=8> Maynard v. Hill, 125 U.S. 190
(1888), the State does not contend in its argument before this
Court that its powers to regulate marriage are unlimited notwithstanding
the commands of the Fourteenth Amendment. Nor could it do so in
light of
<=9> Meyer v. Nebraska, 262 U.S.
390 (1923), and
<=10> Skinner v. Oklahoma, 316
U.S. 535 (1942). Instead, the State argues that the meaning of
the Equal Protection Clause, as illuminated by the statements
of the Framers, is only that state penal laws containing an interracial
element {*8} as part of the definition of the offense must apply
equally to whites and Negroes in the sense that members of each
race are punished to the same degree. Thus, the State contends
that, because its miscegenation statutes punish equally both the
white and the Negro participants in an interracial marriage, these
statutes, despite their reliance on racial classifications, do
not constitute an invidious {***10} discrimination based upon
race. The second argument advanced by the State assumes the validity
of its equal application theory. The argument is that, if the
Equal Protection Clause does not outlaw miscegenation statutes
because of their reliance on racial classifications, the question
of constitutionality would thus become whether there was any rational
basis for a State to treat interracial marriages differently from
other marriages. On this question, the State argues, the scientific
evidence is substantially in doubt and, consequently, this Court
should defer to the wisdom of the state legislature in adopting
its policy of discouraging interracial marriages.
{**1822} Because we reject the
notion that the mere "equal application" of a statute containing
racial classifications is enough to remove the classifications
from the Fourteenth Amendment's proscription of all invidious
racial discriminations, we do not accept the State's contention
that these statutes should be upheld if there is any possible
basis for concluding that they serve a rational purpose. The mere
fact of equal application does not mean that our analysis of these
statutes should follow the approach {***11} we have taken in cases
involving no racial discrimination where the Equal Protection
Clause has been arrayed against a statute discriminating between
the kinds of advertising which may be displayed on trucks in New
York City, Railway Express Agency, Inc. v. <=11> New York, 336
U.S. 106 (1949), or an exemption in Ohio's ad valorem tax for
merchandise owned by a nonresident in a storage warehouse, Allied
Stores of Ohio, {*9} Inc. v. <=12> Bowers, 358 U.S. 522 (1959).
In these cases, involving distinctions not drawn according to
race, the Court has merely asked whether there is any rational
foundation for the discriminations, and has deferred to the wisdom
of the state legislatures. In the case at bar, however, we deal
with statutes containing racial classifications, and the fact
of equal application does not immunize the statute from the very
heavy burden of justification which the Fourteenth Amendment has
traditionally required of state statutes drawn according to race.
The State argues that statements in the Thirty-ninth Congress
about the time of the passage of the Fourteenth Amendment indicate
that the Framers did not intend the Amendment {***12} to make
unconstitutional state miscegenation laws. Many of the statements
alluded to by the State concern the debates over the Freedmen's
Bureau Bill, which President Johnson vetoed, and the Civil Rights
Act of 1866, 14 Stat. 27, enacted over his veto. While these statements
have some relevance to the intention of Congress in submitting
the Fourteenth Amendment, it must be understood that they pertained
to the passage of specific statutes and not to the broader, organic
purpose of a constitutional amendment. As for the various statements
directly concerning the Fourteenth Amendment, we have said in
connection with a related problem, that although these historical
sources "cast some light" they are not sufficient to resolve the
problem; "{at} best, they are inconclusive. The most avid proponents
of the post-War Amendments undoubtedly intended them to remove
all legal distinctions among 'all persons born or naturalized
in the United States.' Their opponents, just as certainly, were
antagonistic to both the letter and the spirit of the Amendments
and wished them to have the most limited effect." <=13> Brown
v. Board of Education, 347 U.S. 483, 489 (1954). See {***13} also
<=14> Strauder {*10} v. West Virginia , 100 U.S. 303, 310 (1880).
We have rejected the proposition that the debates in the Thirty-ninth
Congress or in the state legislatures which ratified the Fourteenth
Amendment supported the theory advanced by the State, that the
requirement of equal protection of the laws is satisfied by penal
laws defining offenses based on racial classifications so long
as white and Negro participants in the offense were similarly
punished. <=15> McLaughlin v. Florida, 379 U.S. 184 (1964).
The State finds support for its
"equal application" theory in the decision of the Court in <=16>
Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court
upheld a conviction under an Alabama statute forbidding adultery
or fornication between a white person and a Negro which imposed
a greater penalty than that of a statute proscribing similar conduct
by members of the same race. The Court reasoned {**1823} that
the statute could not be said to discriminate against Negroes
because the punishment for each participant in the offense was
the same. However, as recently as the 1964 Term, in rejecting
{***14} the reasoning of that case, we stated "Pace represents
a limited view of the Equal Protection Clause which has not withstood
analysis in the subsequent decisions of this Court." <=17> McLaughlin
v. Florida, supra, at 188. As we there demonstrated, the Equal
Protection Clause requires the consideration of whether the classifications
drawn by any statute constitute an arbitrary and invidious discrimination.
The clear and central purpose of the Fourteenth Amendment was
to eliminate all official state sources of invidious racial discrimination
in the States. <=18> Slaughter-House Cases, 16 Wall. 36, 71 (1873);
<=19> Strauder v. West Virginia , 100 U.S. 303, 307-308 (1880);
<=20> Ex parte Virginia , 100 U.S. 339, 344-345 (1880); <=21>
Shelley v. Kraemer, 334 U.S. 1 (1948); <=22> Burton v. Wilmington
Parking Authority, 365 U.S. 715 (1961).
{*11} There can be no question
but that Virginia's miscegenation statutes rest solely upon distinctions
drawn according to race. The statutes proscribe generally accepted
conduct if engaged in by members of different races. Over the
years, this {***15} Court has consistently repudiated "distinctions
between citizens solely because of their ancestry" as being "odious
to a free people whose institutions are founded upon the doctrine
of equality." <=23> Hirabayashi v. United States, 320 U.S. 81,
100 (1943). At the very least, the Equal Protection Clause demands
that racial classifications, especially suspect in criminal statutes,
be subjected to the "most rigid scrutiny," <=24> Korematsu v.
United States, 323 U.S. 214, 216 (1944), and, if they are ever
to be upheld, they must be shown to be necessary to the accomplishment
of some permissible state objective, independent of the racial
discrimination which it was the object of the Fourteenth Amendment
to eliminate. Indeed, two members of this Court have already stated
that they "cannot conceive of a valid legislative purpose . .
. which makes the color of a person's skin the test of whether
his conduct is a criminal offense." <=25> McLaughlin v. Florida,
supra, at 198 (STEWART, J., joined by DOUGLAS, J., concurring).
There is patently no legitimate
overriding purpose independent of invidious racial discrimination
which justifies {***16} this classification. The fact that Virginia
prohibits only interracial marriages involving white persons demonstrates
that the racial classifications must stand on their own justification,
as measures designed to maintain White Supremacy. n11 We have
consistently denied {*12} the constitutionality of measures which
restrict the rights of citizens on account of race. There can
be no doubt that restricting the freedom to marry solely because
of racial classifications violates the central meaning of the
Equal Protection Clause.
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n11 Appellants point out that the State's
concern in these statutes, as expressed in the words of the 1924
Act's title, "An Act to Preserve Racial Integrity," extends only
to the integrity of the white race. While Virginia prohibits whites
from marrying any nonwhite (subject to the exception for the descendants
of Pocahontas), Negroes, Orientals, and any other racial class
may intermarry without statutory interference. Appellants contend
that this distinction renders Virginia's miscegenation statutes
arbitrary and unreasonable even assuming the constitutional validity
of an official purpose to preserve "racial integrity." We need
not reach this contention because we find the racial classifications
in these statutes repugnant to the Fourteenth Amendment, even
assuming an even-handed state purpose to protect the "integrity
"of all races.
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{***17} II. {**1824} These statutes also
deprive the Lovings of liberty without due process of law in violation
of the Due Process Clause of the Fourteenth Amendment. The freedom
to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil
rights of man," fundamental to our very existence and survival.
<=26> Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also
<=27> Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental
freedom on so unsupportable a basis as the racial classifications
embodied in these statutes, classifications so directly subversive
of the principle of equality at the heart of the Fourteenth Amendment,
is surely to deprive all the State's citizens of liberty without
due process of law. The Fourteenth Amendment requires that the
freedom of choice to marry not be restricted by invidious racial
discriminations. Under our Constitution, the freedom to marry,
or not marry, a person of another race resides with the individual
and cannot be infringed by the State.
These convictions must be reversed.
It is so ordered.
CONCURBY: {***18}
STEWART
CONCUR: {*13} MR. JUSTICE STEWART,
concurring. I have previously expressed the belief that "it is
simply not possible for a state law to be valid under our Constitution
which makes the criminality of an act depend upon the race of
the actor." <=28> McLaughlin v. Florida, 379 U.S. 184, 198 (concurring
opinion). Because I adhere to that belief, I concur in the judgment
of the Court.
