LOVING
SUPREME COURT OF THE UNITED STATES
v.
VIRGINIA
388 U.S. 1 (1967)
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. [n. 1] For reasons 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.
"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." "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 modifying
the sentence, affirmed the convictions. The Lovings appealed this decision,
and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986.
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 for not less than one nor more than
five years."
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,
[n. 3] and §§ 20-54 and 1-14 which, respectively, define "white
persons" and "colored persons and Indians" for purposes of the statutory
prohibitions. [n. 4] 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.
4 Section 20-54 of the Virginia Code
provides:
Section 1-14 of the Virginia Code
provides:
7 Va. Code Ann. § 20-54 (1960
Repl. Vol.).
8 Va. Code Ann. § 20-53 (1960
Repl. Vol.).
9 Va. Code Ann. § 20-50 (1960
Repl. Vol.).
10 Va. Code Ann. § 20-54 (1960
Repl. Vol.). 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. 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 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, 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.
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, 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. 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 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.
McLaughlin v. Florida, 379 U.S. 184 (1964). 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
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).
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).
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 to maintain White Supremacy. [n. 11] We have consistently
denied 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.
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. 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.
1 Section 1 of the Fourteenth
Amendment provides:
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 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:
3 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.).
"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).
"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.).
Virginia is now one of 16 States
which prohibit and punish marriages on the basis of racial classifications.
[n. 5] Penalties for miscegenation arose as an incident to slavery and
have been common in Virginia since the colonial period. 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," [n. 7] a prohibition against issuing marriage licenses
until the issuing official is satisfied that the applicants' statements
as to their race are correct, [n. 8] certificates of "racial composition"
to be kept by both local and state registrars, [n. 9] and the carrying
forward of earlier prohibitions against racial intermarriage. [n. 10]
5 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).
I.
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).
11 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.