LOVING ET UX. v.
VIRGINIA
388 U.S.
1 (1967)
MR. CHIEF JUSTICE WARREN delivered the opinion of the
Court.
[***HR1A] 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.
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."
In June 1958, two
residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white [***1013] 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 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 December 12,
1966, 385 U.S.
986.
n2
206 Va. 924,
147 S. E. 2d 78 (1966).
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."
[***1014] Other central provisions in the Virginia statutory
scheme are § 20-57,
which 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.
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.).
[*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 [***1015] 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
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.
Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (1948).
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.).
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 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. 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 of marriage should be left to
exclusive state control by the Tenth Amendment.
[***HR2] While the state court is no doubt correct in
asserting that marriage is a social relation subject to the State's police
power, 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 Meyer v. Nebraska,
262 U.S. 390 (1923), and 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 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,
[***1016] 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]
[***HR3] 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 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. 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. 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.
[***HR4] 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 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." Brown v. Board of Education, 347 U.S. 483, 489
(1954). See also 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 [***1017] so long as white and Negro participants in
the offense were similarly punished. McLaughlin v. Florida, 379 U.S. 184 (1964).
[***HR5] [***HR6]
The State finds support for its "equal application" theory in
the decision of the Court in 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 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." 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. Slaughter-House
Cases, 16 Wall. 36, 71 (1873); Strauder
v. West Virginia, 100 U.S. 303, 307-308 (1880); Ex parte Virginia, 100 U.S. 339, 344-345 (1880); Shelley
v. Kraemer, 334 U.S. 1 (1948); Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961).
[*11]
[***HR7] [***HR8]
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 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." 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," 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." McLaughlin v. Florida,
supra, at 198 (STEWART, J., joined by DOUGLAS, J., concurring).
[***HR9] There is patently no legitimate overriding
purpose independent of invidious racial discrimination which justifies 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 [***1018] 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.
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.
II.
[**1824]
[***HR10] 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.
[***HR1B] [***HR11]
[***HR12] Marriage is one of the
"basic civil rights of man," fundamental to our very existence and
survival. Skinner
v. Oklahoma, 316 U.S. 535, 541
(1942). See also 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.
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." McLaughlin v. Florida,
379 U.S.
184, 198 (concurring opinion). Because I
adhere to that belief, I concur in the judgment of the Court.