It’s interesting to hear and read the proceedings from just 47 years ago, hearing similar thought that’s now being applied today for and against same-sex marriage. And to think that it has been only 47 years ago that the nation was before, in discord over the right to marry. What's of particular interest are the views of granting marriage and of states' rights when granting marriage, right of inheritance as well as defining race and class. (I made notation in bold and underlined text of passages that caught particular attention as I read through the transcript.)
Audio(go to site and scroll down to audio link): http://www.oyez.org/cases/1960-1969/1966/1966_395
Argument of Philip J. Hirschkop
Chief Justice Earl Warren: Number 395, Richard Perry Loving, et al., Appellants, versus Virginia.
Mr. Cohen: Mr. Chief Justice, may it please the Court.
I'm Bernard S. Cohen.
I would like to move the admission of Mr. Philip J. Hirschkop pro hac vice, my co-counsel in this matter.
He's a member of the Bar of Virginia.
Chief Justice Earl Warren: Your motion is granted.
Mr. Hirschkop, you may proceed.
Mr. Hirschkop: Thank you Your Honor.
Mr. Chief Justice, Associate Justices, may it please the Court.
We will divide the argument.
Accordingly, I will handle the Equal Protection argument as we view it and Mr. Cohen will argue the Due Process argument.
You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law.
We referred to the law itself -- oh at first, I'd like to bring the Court's attention, there are some discrepancy in the briefs between us and the common law especially as to which laws are in essence.
They have particularly said that Section 20-58 and 20-59 of the Virginia Code are the only things for consideration by this Court, and those two Sections, of course, are the criminal section, making a criminal penalty for Negro and white to intermarry in the State of Virginia.
20-58 is the evasion section under which this case particularly arose which makes it a criminal act to people who go outside the State to avoid the laws of Virginia to get married.
We contend, however, Your Honors that there is much more in essence here.
That there's actually one simple issue, and the issue is, may a State proscribe a marriage between two adult consenting individuals because of their race and this would take in much more in the Virginia statutes.
Sections 20-54 and 20-57 void such marriages and if they void such marriages, you would only decide on 20-58 and 20-59, these people, whether they go back to Virginia and they are in Virginia now, will be subject to immediate arrest under the fornest -- fornication statute, and the lewd and lascivious cohabitation statute and more than that, there are many, many other problems with this.
Their children would be declared bastards under many Virginia decisions.
They themselves would lose their rights for insurance, social security and numerous other things to which they're entitled.
So we strongly urge the Court considering this to consider this basic question, may the state proscribe a marriage between such individuals because of their race and their race alone.
Justice John M. Harlan: How many states (Inaudible)?
Mr. Hirschkop: There are 16 states, Your Honors that have these States.
Presently, Maryland just repealed theirs.
These all are southern states with four or five border southern states as Oklahoma and Missouri, and Delaware.
There have been in recent years two Oklahoma and Missouri that have had bills to repeal them but they did not pass the statute.
Now, in dealing with the equal protection argument, we feel that on its face, on its face, these laws violate the equal protection of the laws.
They violate the Fourteenth Amendment, and in dealing this, we look at the arguments advanced by the State and there're basically two arguments advanced by the State.
On one hand, they say the Fourteenth Amendment specifically exempted marriage from its limitations.
On the other hand, they say if it didn't, the Maynard versus Hill doctrine would apply here, that this is only for the State to legislate them.
In replying to that, we think their health and welfare aspect of it is in essence and we hope to show to the Court, these are not health and welfare laws.
These are slavery laws pure and simple.
Now for this reason, we went to some length in our brief to go into the history of these laws, to look at why Virginia passed these laws and why other States have these laws on a books and how they used these laws.
Without reiterating what is in the brief, I will just refer to that history very briefly.
As we pointed out in the brief, laws go back to the 1600s.
The 1691 Act is the first basic Act we have.
There was a 1662 Act which held that the child of a Negro woman and a white man would be free or slave according to the condition of his mother.
It's a slavery law and it was only concerned with one thing, and it's an important element in this matter.
Negro man, white woman, that's all they were really concerned with.
I think maybe all these still concern with.
It's purely the white woman, not purely the Negro woman.
These laws robbed the Negro race of their dignity.
It's the worst part of these laws and that's what they're meant to do, to hold the Negro class in a lower position, lower social position, the lower economic position.
1691 was the first basic Act and it was entitled an Act for this pressing of outline slaves and the language of the Act is important while we go back to it because they talk about the prevention of bad abominable mixture and spurious issue and we'll see that language time and again throughout all the judicial decisions referred to by the State.
And then they went into two centuries of trying to figure out who these people were that they were proscribing.
I won't touch upon all the States.
I understand amicus will do that.
But at one time, in 1705 it was a person with one-eight or more Negro blood and then in 1785, it became person with one quarter or more and it went on and on.
It wasn't until 1930 that we finally arrived that what a Negro is in the State of Virginia, that's a person with any traceable Negro blood, a matter which we think defies any scientific interpretation.
And the first real judicial decision we get in Virginia was in 1878 when the Kinney versus Commonwealth case came down.
And there again, we have a very interesting decision because in Kinney versus Commonwealth, they talk about the public policy of the State of Virginia.
Now what that public policy was and how would it be applied?
If Your Honors will indulge me, I have the language here which is the language that had carried through, through the history of Virginia.
And they talk about spurious issue again, and that is what's constantly carried through and carried through for an act to suppressing of outlawing slaves.
And they talk about the church southern civilization, but they didn't speak about the southern civilization as a whole but this white southern civilization.
And they want the race as kept distinct and separate, the same thing this Court has heard since Brown and before Brown, but it's heard so many times during the Brown argument and since the Brown argument.
And they talk about alliances so unnatural that God has forbidden them and this language --
Justice Hugo L. Black: Would you mind telling me what case that was?
Mr. Hirschkop: That's Kinney versus Commonwealth, Your Honor.
Justice Hugo L. Black: Kinn --
Mr. Hirschkop: Kinney, K-I-N-N-E-Y and then in 1924, in the period of great history in the United States, the historical period we're all familiar with, a period when the west was in arms over the yellow peril and western states were thinking about these laws or some (Inaudible), a period when the immigration laws were being passed to the United States because the north was worried about the great influx of Italian immigrants and Irish immigrants, a period when the Klan rode openly in the south and that's when they talked about bastardy of races, and miscegenation and amalgamation and race suicide became the watch word, and John Powell, a man we singled out in our brief, a noted pianist of his day, started taking up the Darwin Theory and perverting it through the theory of eugenics, the theory that applied to animals, to pigs, and hogs, and cattle.
They started applying it to human beings.
In taking Darwinism that the Negro race was a stepping stone, was that lost men we've always been looking for between the white man and the abominable snowman whoever else, they went back.
And that's when the Anglo-Saxon Club was formed in the State of Virginia and that's when Virginia Legislature passed our present body of law.
They took all these old laws.
These antebellum and postbellum laws and they put them together into what we presently have.
Chief Justice Earl Warren: How many states for the first time in that -- in the 20s passed these kinds of laws, do you recall?
Mr. Hirschkop: Your Honor, to the best of our knowledge, basically most States had them.
It was just Virginia and then Georgia copied the Virginia Act which had such a complete act and it was described in many places as the most perfect model with this type of Act.
Chief Justice Earl Warren: But you were saying that the western states and the eastern states and others during the 1924 period passed these laws as I understood you.
Mr. Hirschkop: Most -- No Your Honor, most of them actually had them on the books.
Chief Justice Earl Warren: I see, alright.
Mr. Hirschkop: They -- with summary codification, this one Virginia strove to do this to make a perfect model law and only Georgia thought it was expected from our reading of history that many other States would follow but they just let remain what they had.
There was very few repeals on those days.
Actually, the great body of repeal has been since Brown with 13 states have repealed since that time.
Chief Justice Earl Warren: Yes.
Well, what relevance do that 1924 period have to this?
Mr. Hirschkop: Because some of the statutes we have were enacted then, all the registration statutes were enacted in 1924 Your Honor.
These are the statutes basically which you have to have a -- a certificate of racial composition in the State of Virginia.
The statutes which we find absolutely mostly odious, the statutes will reflect back the Nazi Germany and to the present South African situation.
Chief Justice Earl Warren: I see.
Mr. Hirschkop: But the present bill, as it is on the books is that law from 1924 and it was entitled "A Bill to Preserve the Integrity of the White Race" when it was initially issued.
It was passed as a bill for racial integrity -- to preserve racial integrity.
Now, we would advance the argument very strongly to the Court, they're not concerned with racial integrity of the Negro race, only with the white race.
In fact in Virginia, it's only a crime for white and Negro to intermarry and the lowest couch in such terms that they say, "White may only marry white" in Section 20-54 of our law, but it goes on from there to make it a crime only for whites and Negroes to intermarry.
There's no crime for Malaysian to marry a Negro and it's a -- it's a valid marriage in Virginia but it would be a void marriage for Malaysian or any other race aside from Negro to marry a white person.
A void marriage but there'd be no criminal penalty against anyone but the white person.
They were not concerned with the racial integrity but racial supremacy of the white race.
In 1930, they finally, as I said before, went on, say any person with traceable Negro blood with a Negro.
Now, these laws, Your Honors, are ludicrous in their inception and equally ludicrous in their application.
It's not possible to look at just the Virginia laws alone.
You have to look at what happened in the whole south we feel and the classifications in the south.
It's impossible to say.
I won't go to again, the exact illustration of Negroes but South Carolina, North Carolina make certain Indians white people.
North Carolina, Cherokee and Robeson County is a white person, all of the Cherokee Indians, and Negroes.
In South Carolina is the Kato Indians and these laws came to invent to these other very hateful laws.
In Mississippi advocate of social equality under the mis -- miscegenation body of law.
It's a criminal penalty.
I think it carries one to five years.
If Your Honor please, there are several decisions handed out by States which again point out the racial feeling concerning these laws.
The Missouri laws bottomed on States versus Jackson which basically held that if the progeny of a mixed marriage, married the progeny of a mixed marriage, there'd be no further progeny and fundamentally ridiculous statement.
Maybe it wasn't for those men in that day and age but it certainly is now and Georgia has an equally ridiculous basis for the laws.
In Scott versus Georgia where they held that from the daily observances, they see that the offspring of such marriages are feminine.
And in this case, and I will refer to the appellant's brief here at page 35, the Loving case comes to you based on the case of Name versus Name.
Now, what were they talking about in Name versus Name?
Again, they wanted to preserve the racial integrity of their citizens.
They want not to have a mongrel breed of citizens.
We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride but must permit the corruption of blood even though it weakens or destroy the quality of the citizenship.
These are racial and equal protection thoroughly proscribes these.
In the case before you, the opinion of the lower court, Judge Bazile, and we have the footnote in page 37 of our brief, which says, "Almighty God created the right races, white, black, yellow, malay, and red and he placed them on separate continents," and I didn't read the whole quote, but it's a fundamentally ludicrous quote and again, that's what they're talking about.
We feel the very basic wrong of these statutes is they rob the Negro race of their dignity and fundamental in the concept of liberty in the Fourteenth Amendment is the dignity of the individual, because without that, there is no ordered liberty.
We've quoted from numerous authorities and particularly not for the scientific point but particularly, I refer you to the quotes from Gunner Murdel (Gunnar Myrdal) who's made a noted study in recent years of this, and not the old studies that are otherwise quoted.
Your Honor please, there's one other issue that the State raises that I will touch on briefly, and that's the Fourteenth Amendment issue.
To begin with the state advances, no history of the Fourteenth Amendment debates themselves.
They go to the debates of the 1866 Act and the Freedmen's Bureau Bills which did immediately precede the Fourteenth Amendment and then in their own brief, they have an excellent cite that the Fourteenth Amendment was impart designed to provide a firm constitutional basis for the Civil Rights Act.
We would advance that the in part is the answer to the Fourteenth Amendment.
Even if you read in the history, the 1866 Act, it's much broader in scope.
Its language is much broader in the scope.
The language of liberty, due process is much broader than the rights, privileges and immunities that were put in to the 1866 legislative act.
It was more than an effort to put these laws beyond the grasp before the Congress.
It was a greater protection.
And Your Honor please, even if you want to take the history of the Civil Rights Bill of 1866, we feel even reading that language, that wasn't clear.
It's up to the Court to decide what happened.
Many legislators felt it would proscribe, that the Civil Rights Act itself, would proscribe this type of laws in the States.
Even various proponents said amalgamation laws were now touched and basically what they rely on in their brief, and in their argument in the court below, and I might point out to Your Honors that this was argued fully in the court below and the Virginia Supreme Court didn't base the rule on the argument, but push to the side and went to the merits of whether these laws were or were not unconstitutional, taking into account before taking them.
As I recall, this was put before this Court in the McLaughlin case, well I know it was and it was put before the lower court in McLaughlin cases, the same argument.
Now while McLaughlin was cohabitation, I think you'd have to read those laws together if they were intended to be reached because they spoke of amalgamation laws in the arguments of the 1866 Act.
But even if you would read the language of Senator Trumbull which they rely on so strongly, what did he really say?
Well, one point page 17 in their brief, he says, "I presume there is no discrimination in this respect" and he goes on to talk about his argument, the law as I understand it in all States applies equally.
This was the Pace reasoning which this Court has set aside, but the real tip off we feel on this comes on page 22 where they're quoting Trumbull again.
And he says, "This bill would not repeal the law to which the senator refers," in reply to Senator Johnson, "if there is no discrimination made by it, if there is no discrimination made by it."
We submit very strongly as it had been before the Court many times that the application of the Fourteenth Amendment is an open-ended application even on these laws, even when we had this argument, because this is if it's not discriminatory, Your Honors must reach the conclusion whether it's discriminatory or not and it is clearly discriminatory.
We speak of this on page 30 and 31 of our brief, quoting Bickel, a noted constitutional authority.
He said, "They were open-ended and meant to be expanded in light of changing times and circumstances" and quoting this Court from Burton versus Wilmington Parking authority, "Its constitutional assurance was reserved in terms of imprecision was necessary if the right were to be enjoyed in the variety of individual State relations."
There are any number of such quotes in your opinions in the last ten years.
The same argument you had before you all the time that the Fourteenth Amendment doesn't apply.
Your Honors very adequately answered that argument in the McLaughlin decision when you said, "This was essential purpose of the Fourteenth Amendment" and we submit very strongly, it is the essential purpose of the Fourteenth Amendment.
If Your Honors please in resting on the equal protection argument, we fail to see how any reasonable man can but conclude that these laws are slavery laws were incepted to keep the slaves in their place, were prolonged to keep the slaves in their place, and in truth, the Virginia law still views the Negro race as a slave race, that these are the most odious laws to come before the Court.
They robbed the Negro race of its dignity and only a decision which will reach the full body of these laws in the State of Virginia will change that.
We ask that the Court consider the full spectrum of these laws and not just the criminality, because it's more than a criminality that's at point here, that the legitimacy of children right to inherent land, the many, many rights, and in reaching a decision, we ask you reach on that basis.
Thank you Your Honors.
Chief Justice Earl Warren: Mr. Cohen.
Argument of Bernard S. Cohen
Mr. Cohen: Mr. Chief Justice, may it please the Court.
We were here merely to obtain a reversal on behalf of Richard Perry Loving and Mildred Jeter Loving.
I think Mr. Hirschkop would have presented a cogent and complete argument based upon the Equal Protection Clause which would leave no course but to find the statutes question unconstitutional.
However, while there is no doubt in our minds that these statutes are unconstitutional and have run afoul of the Equal Protection Clause of the Fourteenth Amendment, we urge with equal strength that the statutes also run afoul of the Due Process Clause of the Fourteenth Amendment.
Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko versus Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Myer versus Nebraska and Skinner versus Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment.
Justice Potter Stewart: Well, surely that's -- there's some limit on that.
I suppose you would agree that -- that a State could forbid a marriage between a brother and a sister, wouldn't you?
Mr. Cohen: We have conceded that the State may properly regulate marriages and may regulate divorces and indeed they have done so and this Court has upheld certain regulations.
I don't know whether the issue of consanguinity or affinity has ever been here but certainly the one that comes to my mind first would be the Reynolds case in the polygamy matter and that we have no trouble distinguishing those, and I -- I don't think the Court will either.
There was no race question involved.
Justice Potter Stewart: No, but you're -- you're not arguing about any race question.
You're arguing complete freedom to contract, aren't you, under the Due Process Clause?
Mr. Cohen: Well, I -- I have stated that the Due Process Clause has been subject to many articulations.
And what I was going to go on to say was that all of these articulations can find some application in this particular case.
If you ask me for the strength of the argument of the Fourteenth Amendment Due Process Clause as applied to this case, I urge most strongly that it be on the basis of the Fourteenth Amendment is Amendment to protect against racial discrimination.
However, I do not think that the other arguments are completely invalid.
I -- I don't even know if the Court ever has to reach them, but one can still argue that there is liberty and a right to marry as this Court has said in Myer and Skinner and that in no way, detracts from our argument that they cannot -- the State cannot infringe upon the right of Richard and Mildred Loving to marry because of race.
These are -- these are just not acceptable grounds.
We are talking about an arbitrary and capricious ground and we -- we should have no trouble.
Justice Potter Stewart: But some -- some people might think it was reasonable that it's arbitrary and capricious to forbid first cousins to marry each other, state rights to live does have such a law prohibiting first cousins for marrying each other.
Now the -- because large body of opinion might think that's arbitrary and capricious.
Does that mean that the State has no constitutional power to pass such a statute?
Mr. Cohen: I believe that we run into another step before we can reach that Your Honor and that is the burden of coming forth with the evidence.
I think that a State can legislate and can restrict marriage and might even be able to go so far as to restrict marriage between first cousins as some States have.
And I think that if that case were before the Court, they would not have the advantage that we have of a presumption being shifted and a burden being shifted to the State to show that they have a reasonable basis for proscribing inter-racial marriages.
However, if we were here on a first cousins case, I think we would have the tougher road to hoe because we would have to come in and show that the proscription was arbitrary and capricious.
It was not based upon some reasonable grounds, and that is a difficult thing for an appellant to do.
Thankfully, we are not here with that burden.
The State is and we submit that the State cannot overcome that burden.
Not only do we submit that they cannot but for the purposes of this case, we certainly submit they have not.
Nowhere in the State's brief, nowhere in the legislative history of the Fourteenth Amendment, nowhere in the legislative history of Virginia's antimiscegenation statutes, is there anything clearer than would -- Mr. Hirschkop has already elucidated that these are racial statutes to perpetuate the badges and bonds of slavery.
That is not a permissible state action.
Justice Black: Was there any effort to repeal the law in Virginia?
Mr. Cohen: Your Honor, there have not been any efforts and I can tell you from a personal experience that candidates who run for office for the state legislature have told me that they would, under no circumstances, sacrifice their political lives by attempting to introduce such a bill.
There is one candidate who has indicated that he would probably do so at some time in the future, but most of them have indicated that it would be political suicide in Virginia.
Justice Hugo L. Black: May I ask you if you're arguing the due process question on the theory that even if the Court holds that violates the Equal Protection Clause it is necessary to go on and reach the broad expanses you mentioned?
Mr. Cohen: Your Honor, we should be very pleased to have a decision from this Court that all of the statutes are unconstitutional based upon the Equal Protection Clause.
However, what we are concerned about is that the Court, if it uses the equal protection argument to find the statute unconstitutional that there might be some way that Virginia could possibly get around this by reenacting a statute that was -- that would absolutely, only permit whites to marry whites, Negroes to marry Negroes, Malaysians to marry Malaysians, and possibly might -- we might be back here again.
Justice Hugo L. Black: I don't see how that would be possible if the Court held, according to the first argument, this is a plain violation of the Equal Protection Clause.
Mr. Cohen: Well, I -- I quite agree Your Honor and I -- I do think that the equal protection argument is -- is the strongest argument, that is the correct argument and it is the basis upon which we strongly urge the Court to rule.
We are mostly concerned about a narrow ruling that would not go to the whole section of statutes.
There are 10 sections, Section 20-50 through 20-60 and this is our chief concern that the Court might not touch the racial composition certificate statute.
Justice Hugo L. Black: The what?
Mr. Cohen: The racial composition certificate, Section 20-50 says that anybody in Virginia who applies to the State registrar vital statistics shall be given a certificate of racial composition.
He goes and he says -- he goes up to the clerk of the Court and says, "I'm white.
I want a certificate of racial composition or I'm white or Negro.
I want a certificate of racial composition that I'm Negro."
And if the clerk looks at him and believes him, he him fill out something and certifies that to the way it looks to him this person is white, or is Negro, and he sends down to Richmond and he gets a certificate of racial composition.
To the best of my knowledge, this has not been used in recent years and I don't know what is its extent was.
Back around 1924, except the legislative history shows that they brought in the state registrar of vital statistics and he testified that there was great confusion under the old law as to who is a member of which race and that they were having a little bit of difficulty determining who is a member of which race and who could be proscribed from marrying whom and called for this very strict statute which now says that white persons may only marry white persons.
Therefore, what they've done is make it a crime for a white person to marry a Negro or a Negro person to marry a white person, but it's not a crime for a Negro to marry a Malaysian.
It's a void marriage in Virginia and they may be prosecuted for violation of the fornication statutes but not for violation of the -- of the antimiscegenation statute.
The Section 20-54 merely makes civil disability apparent in a white -- in a marriage between a -- a white and a Malaysian or a Negro and a -- a -- well, we're not exactly sure about that but between a white and anybody else, but another white or a Negro, it is not a criminal act and therefore, they are under great civil disability.
They -- the children are illegitimate.
The white cannot --
Justice Hugo L. Black: Could that -- could that possibly be fit through if the Court should decide to straight out that the State cannot prevent a marriage, the relationship of marriage between the whites and the blacks because of their color.
Mr. Cohen: Absolutely not.
That would be no problem.
Justice Hugo L. Black: That would settle it, wouldn't it?
Mr. Cohen: Yes, I think it would.
Justice Hugo L. Black: That would settle it constitutionally.
Mr. Cohen: I believe it would.
The enormity of the injustices involved under this statute is -- merely serves us indicia of how the civil liabilities amount to a denial of due process to the individuals involved.
As I started to say before, no matter how we articulate this, no matter which theory of the Due Process Clause or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, "Mr. Cohen, tell the Court I love my wife and it is just unfair that I can't live with her in Virginia."
I think this very simple layman has a concept of fundamental fairness and ordered liberty that he can articulate as a brick layer that we hope this Court has set out time and time again in its decisions on the Due Process Clause.
With respect to the legislative history urged by the State as being conclusive that the Fourteenth Amendment did not mean to make unconstitutional State statutes prohibiting miscegenation.
We want to emphasize three important points.
One, only a small group of Senators in any of the debates cited ever expressed themselves at all with respect to the miscegenation statutes.
There are perhaps five or six that are even quoted and these were for the Freedmen's Bureau Bill in the Act -- Civil Rights Act of 1866.
If absence of debate ever has any influence at all, this is a classic case.
Nowhere has the State been able to cite one item of legislative debate on the Fourteenth Amendment itself with respect to antimiscegenation statutes, not one item.
All of their references are to the 1866 Act.
And again, we point out that those comments were very carefully worded by both proponents and opponents of the bill.
Again, we carefully point out that their own record of the legislative history shows that they were just as many Senators who believed that indeed, especially the Southern Senators who States had antimiscegenation statutes, they were just as many of them who did believe that the passage of the Civil Rights Act of 1866 would invalidate such an Act.
Their own passages that they printed in the brief around pages 30 through 33 are replete with support for our argument that -- that the -- at best, at best, the legislative history is inconclusive.
And as this Court has found before and we hope will continue to find, the Fourteenth Amendment is an amendment which grows and can be applied to situations as our knowledge becomes greater and as our progress is made and that there will be no problem in finding that this set of statutes in Virginia are erroneous to the Fourteenth Amendment.
I have been questioned about the right of the State to regulate marriage and I think that where the Court has found that the State could in fact regulate marriage within permissible grounds, they've gone on as they did in the Reynolds case to find that the people that there was a danger to the principles on which the Government of the people to a greater or lesser extent rests.
I ask this Court if the State is urging here that there is some State principle involved or some principle of the people involved that is a proper principle of theirs, what is it?
What is the danger to the State of Virginia of interracial marriage?
What is the state of the danger to the people of interracial marriage?
This question has been carefully avoided.
Chief Justice Earl Warren: What is the order -- have you agreed upon an order or -- or I would think Mr. Marutani would probably be next?
Mr. Cohen: Probably in my understanding Mr. Chief Justice?
Chief Justice Earl Warren: Yes.
Well, that would be the normal way.
Mr. Marutani, you may proceed.
Argument of William M. Marutani
Mr. Marutani: Mr. Chief Justice and may it please the Court.
My name is William Marutani, legal counsel for the Japanese American Citizens League which has filed a brief amicus curiae in this appeal.
On behalf of the Japanese American Citizens League, I would like to thank this Court for this privilege.
Because the issues before this Court today revolve around the question of race, may I be excused in making a brief personal reference in this regard?
As a Nisei, that is American born and raised in this country but whose parents came from Japan, I am and I say this with some trepidation of being challenged, perhaps among those few in this courtroom along with the few other Nisei who happened to be here this morning, who can declare with some degree of certainty, the verity of his race, that is at the term race is -- as defined as an endogamous or inbreeding geographic population group.
This means the broad definition of convenience utilized by anthropologists.
Now, those who would trace their ancestry to the European cultures where over the centuries, there have been invasions, cross-invasions, population shifts with the inevitable cross-breeding which follows and particularly those same Europeans who have been part of the melting pot of America, I suggest would have a most difficult, if not impossible task of establishing what Virginia's antimiscegenation statutes require namely, and I quote, proving that, "No trace whatever of any blood other than Caucasian."
This is what Virginia statutes would require.
Incidentally, this presupposes that the term Caucasian is susceptible of some meaningful definition.
A burden incidentally which Virginia's laws somehow conveniently overlooks, but then this same infirmity applies to the remaining 15 States which have similar antimiscegenation laws.
Now, one of the most sophisticated anthropologists with all their specialized training and expertise, flatly reject the notion of any pure race and in this connection.
I refer to the UNESCO proposal, a statement on race which is attached to Appendix A to the amicus brief, and incidentally, also signed by Professor Carleton Coon who is a very frequently cited by those who would uphold racial differences.
Now, notwithstanding the fact that anthropologists, reject, flatly reject the concept that any notion of a pure race under Section 20-53 of Virginia's laws, that clerk or the deputy clerk is endowed with the power to determine whether an applicant for a marriage license is, "Of pure white race," a clerk or his deputy.
Moreover, the common law of Virginia would have layman as its clerks, judges and juries, take a vague and scandalous terms such as colored person, white person, Caucasian and apply them to specific situations coupled with the power in this layman to invoke civil and criminal sanctions where in their view an interpretation of these terms, the laws of Virginia had been violated.
I believe no citation is required to state or to conclude that this is vagueness in its grossest sense.
I refer the Court again to the decision of this Court in Giaccio versus Pennsylvania decided in 1966 in which the Court stated, "Such a law which leaves judges and jurors free to decide without any legally fixed standards what is prohibited and what is not in each particular case fails to meet the requirements of the Due Process Clause.
Now, let us assume arguendo that race -- there are such things as definable races within the human species that these can be defined with sufficient clarity and certainty as to be accurately applied in particular situations and further let's assume that the State of Virginia's laws do exactly this and incidentally, all of this is something that the anthropologist have not been able to do it, we submit but nevertheless, the antimiscegenation laws of Virginia and its sister states are unconstitutional.
For if the antimiscegenation laws purport to preserve morphologic or physical differences.
That is a differences essentially in the shape of the eyes, the size of noses or the texture of hair, pigmentation of skin, such differences are meaningless and neutral.
They serve no proper legislative purpose.
To state the proposition in itself is to expose the other absurdity.
Moreover, the antimiscegenation laws would take the aspiration of marriage which is common to all people and which is otherwise blessed by the State and which institution incidentally has found of course upon one of man's biological grimes, it would take this and solely on the base of rates, it would convert it into a crime.
In McLaughlin where this Court considered a Florida statute which involved " concepts of sexual decency dealing with extramarital and premarital promiscuity, this Court nevertheless struck down such statute because it was formulated on racial classification and thus laid an unequal hand on those who committed intrinsically the same quality of offense.
Now, for the appellants here, Richard Loving and Miller Loving marriage in and of itself is not a crime.
It is not an offense even under Virginia Clause.
By Virginia Clause, it was their race, it was their race which made it an offense.
Incidentally while Mr. Loving apparently admitted that he was white and thereby admitted to the fact which rendered his marriage a criminal act under Virginia's laws, it is suggested that he was incapable of making a knowing admission that he was "A pure white race" or "Had no trace whatever of any blood other than Caucasian."
Now, we further submit that the antimiscegenation laws involved an unequal application of the laws.
Virginia's express state policy for its antimiscegenation laws has been declared to maintain "Purity of public morals, preservation of racial integrity as well as racial pride and to prevent a mongrel breed of citizens."
However, under these antimiscegenation laws since only white persons are prevented from marrying outside of their race and all other races are free to intermarry and within this particular context, they're free thereby to despoil one another and destroy their racial integrity, purity and pride, Virginia's laws are exposed for exactly what they are, a concept based upon racial superior -- superiority that of the white race and white race only.
Now, we submit that striking down of the antimiscegenation laws, well first of all, not to do certain things.
It will not force anyone to do what he presently does not wish to do.
It does not force anyone to marry outside of his race by striking down the antimiscegenation laws.
By striking down the antimiscegenation laws, no one is called to do, undo anything what she has already done and in this connection, perhaps a distinction maybe made to the Brown case or the School Desegregation cases.
On the contrary by striking down the antimiscegenation laws, freedom of choice will be restored to all individuals including those who are opposed to racial intermarriage.
For the white person who marries another white person does not, under Virginia's laws as they now stand has any other choice.
We submit that race as a factor has no proper place in state's laws that governing whom a person by mutual choice may or may not marry.
Now, the major such statutory intervention upon personal freedom may be exposed by applying the same operative racial principle in reverse.
Let us suppose that the State of Virginia exercised its powers of determining -- of applying this racial principle so that it decreed at every citizen must marry a person of a different race, this would indeed be shocking that the same operative principle is happen to be geared in a way it is presently geared makes it no less shocking and the meaning to the citizen.
A question was raised --
Chief Justice Earl Warren: Well, wouldn't you -- wouldn't you concede Mr. Marutani that if the law provided that the other races so-called must not intermarry that the law would be good?
Mr. Marutani: No, sir.
Mr. Chief Justice, we submit that first of all, it is no answer to a compound what we believe to be wrong.
Moreover, as a practical matter, who is to determine -- who is to categorize how many races there?
The anthropologists range from two to 200, live in South and they are the so-called, experts.
They are unable to agree.
If anthropologist cannot agree, I would assume that it would be extremely difficult for the legislators to determine and then having determined it to apply it.
Chief Justice Earl Warren: Yes.
The reason I ask it was because there were some and had mentioned what you have said that -- that they were denied equal protection in that there was not the same prohibition against intermarrying of the so-called races.
Mr. Marutani: The -- I believe the thrust of that argument sir is that to expose this law for exactly what it is.
It is a White Supremacy Law.
Justice Hugo L. Black: May I ask you, it's not material perhaps in any way, but do you happen to know whether there are laws in Japan which prohibits the other marriage between Japanese and what you might call a Caucasian or white people?
Mr. Marutani: Well, Mr. Justice Black, I might answer that I do not know except by custom.
I can state for example that my own mother would have strenuously objected to my marrying a person of the white race.
Now, Mr. Justice Potter I believe raised the question as to whether or not the State properly has a function to play in the area of control of marriage.
Reference is made to consanguinity, and of course to other standards, mentality, age.
Justice Potter Stewart: Age and I -- I suppose number of spouses.
Mr. Marutani: Yes.
Now, we submit that the racial classification cannot be equated with these standards because racial classification is not an additional standard which is added on the same level as these standards was -- were just enumerated.
They are superimposed over and above all these other standards.
To restate it in another way, the standards of consanguinity, mentality, age and number of spouse and so forth apply to all races, white, black, yellow, it doesn't matter to all races without any distinction, but now the racial factor is superimposed over and above this and is therefore is not on the same level.
It is something different.
It is something additional and over and above on a different level.
Chief Justice Earl Warren: Mr. McIlwaine.
Argument of R. D. Mcilwaine Iii
Mr. McIlwaine: Mr. Chief Justice and may it please the Court.
As an Assistant Attorney General for the Commonwealth of Virginia, I appear as one of counsel for the appellee in support of the judgment of the Supreme Court of Appeals of our State affirming the constitutional validity of the two statutes which are involved in this case.
In view of what has been said before, it may not be inappropriate at this point to emphasize that there are only two statutes before this Court for consideration, Section 20-58 and 20-59 of the Virginia code.
These statutes in their combined effect, prohibit white people from marrying colored people and colored people from marrying white people under the same penal section and forbids citizens of Virginia of either race from leaving the State with intent and purpose of evading this law.
No other statutes are involved in this case.
No attempt has been made by any Virginia officials to apply any other statute to the marital relationship before this Court.
The decision of the Supreme Court of Appeals of Virginia can be read from beginning to end without finding any other statute mentioned in it except 20-58 and 20-59 with the exception of that one provision which relates to the power of Court to suspend the execution of sentence upon which ground the Supreme Court of Appeals of Virginia referred this case back to the lower court to have a new condition of suspension imposed.
With that exception, only two provisions of the Virginia Code are mentioned.
Therefore, we take the position that these are the only statutes before the Court and anything that may have to do with any other provision of the Virginia Code which imposes a prohibition on the white race only or has to do with certificates of racial composition, whatever they may be, are not properly before this Court.
This is a statute which applies to a Virginia situation and forbids the intermarriage of the white and colored races.
Chief Justice Earl Warren: It falls on the question of equal protection, maybe your -- your section which allows anyone with one-sixteenth or less of Indian blood to -- to intermarry with the -- with whites would have some significance, would it not where -- where that this one says, anyone who has got a colored blood in them cannot marry with the white.
Mr. McIlwaine: That would only be significant Mr. Chief Justice with respect to that provision 20-54 which is not before the Court which says that a white person shall not marry any other save a white person or a person having no other admixture of blood and white and American-Indian.
That is a special statute.
That is the 20-54 statute against which I myself could find a number of constitutional objections perhaps in that it imposes a restriction upon one race alone which it does not oppose on the other races and therefore, more stringently curtails the rights of one racial group.
But so --
Chief Justice Earl Warren: But you do put a restrictions on North American-Indians if they have more than one-sixteenth of Indian blood in them, do you not?
Mr. McIlwaine: Yes, sir.
But this is because in Virginia, we have only two races of people which are within the territorial boundaries of the State of Virginia in sufficient numbers to constitute a classification with which the legislature must deal.
That is why I say the white and the colored prohibition here completely controls the racial picture with which Virginia is faced.
Chief Justice Earl Warren: You have no Indians in Virginia?
Mr. McIlwaine: Well, we have Indians Your Honor, but this is the point that we make with respect to them.
Under the census figures of 1960, 79 and some odds hundreds percent of the Virginia population was made up of white people, 20 and some odd hundred percent of the Virginia population was made up of colored people, whites and Negroes by definition of the United States Department of Commerce Bureau of the Census.
Thus, 99 and 44 one hundredths percent of the Virginia population falls into these two racial categories.
All other racial classes in Virginia combined do not constitute as much as one-fourth of 1% of the Virginia population.
Therefore, we say that this problem of the intermarriage of whites and orientals or Negroes and orientals or any of these two classes with Polynesians or Indians or Asiatic Indians is not a problem with which Virginia has faced and one which is not required to adopt its policy forbidding interracial marriage too.
A statute of course does not have to apply with mathematical precision, but on the basis of the Virginia population, we respectfully submit that the statute before the Court in this case does apply almost with mathematical precision since it covers all the dangers which Virginia has a right to apprehend from interracial marriage in that it prohibits the intermarriage of those two groups which constitute more than 99% of the Virginia population.
Now, so far as the particular appellants in this case are concerned, there is no question of constitutional vagueness or doubtful definition.
It is a matter of record, agreed to by all counsel during the course of this litigation and in the brief that one of the appellants here is a white person within the definition of the Virginia law, the other appellant is a colored person within the definition of Virginia law.
Thus, the Court is simply faced with the proposition of whether or not a State may validly forbid the interracial marriage of two groups, the white and the colored in the context of the present statute.
Justice John M. Harlan: Does Virginia have a statute under (Inaudible)?
Mr. McIlwaine: No, sir.
It does not.
We have the question of whether or not that marriage would be recognized as valid in Virginia even though it was contracted by parties who are not residents of the State of Virginia under the conflict of laws principle that a marriage valid were celebrated is valid everywhere.
This would be a serious question and under Virginia law, it is highly questionable that such a marriage would be recognized in Virginia, especially since Virginia has a very strong policy against interracial marriage and the implementing statutes declare that marriages between white and colored people shall be absolutely void without decree of divorce or other legal process, the implementing statute which forbids Virginia citizens to leave the State for the purpose of evading the law and returning, the exception to the conflict of laws principally I've stated that a marriage valid was celebrated would be valid everywhere except where contrary to the long -- to the strong local public policy.
The Virginia statute here involved thus expresses a strong local public policy against the intermarriage of white and colored people.
Now, with respect to any other interracial marriage, this -- the policy of the Virginia statutes here involved does not express any sentiment at all.
And we do not have any decision of the Virginia Supreme Court Mr. Justice Harlan which would shed light on that proposition insofar as other races are concerned.
Justice John M. Harlan: (Inaudible)
Mr. McIlwaine: Well, the -- it has been suggested that it would.
I do not know whether Virginia is -- or any State --
Justice John M. Harlan: That is beside the point?
Mr. McIlwaine: Yes, sir.
Is requires to recognize a marriage which is contrary to its own law, especially with respect to matters within its own State.
Now, the appellants of course have asserted that the Virginia statute here under attack is violative of the Fourteenth Amendment.
We assert that it is not, and we do so on a basis of to contentions and two contentions only.
The first contention is that the Fourteenth Amendment viewed in the light of its legislative history, has no effect, whatever upon the power of States to enact antimiscegenation laws specifically, antimiscegenation laws forbidding the intermarriage of white and colored persons and therefore as a matter of law, this Court under the Fourteenth Amendment is not authorized to infringe the power of the State.
That the Fourteenth Amendment does not read in the life of its history, touch much less diminished the power of a States in this regard.
The second contention, an alternative contention is, that if the Fourteenth Amendment be deemed to apply to State antimiscegenation statutes, then these statutes serve a legitimate, legislative objective of preventing a sociological, psychological evils which attend interracial marriages, and is a -- an expression, a rational expression of a policy which Virginia has a right to adopt.
So far as the legislative history of the amendment is concerned, we do not understand that this Court has ever avowed in principle, the proposition, that it is necessary in construing the Fourteenth Amendment to give effect to the intention of the Framers.
With respect to the instant situation, you are not presented with any question involving a dubious application of certain principles to a situation which was unforeseen or unknown to those who framed the principles.
The precise question before this Court today, the validity under the Fourteenth Amendment of a statute forbidding the marriage of whites and Negroes was precisely before the Congress of the United States 100 years ago when it adopted the amendment.
The situation is perfectly clear that those who considered the amendment against a charge of infringing state power to forbid white and colored marriages, specifically excluding that power from the scope of the Fourteenth Amendment.
Chief Justice Earl Warren: Do you get that from the debates on the Fourteenth Amendment?
Mr. McIlwaine: Yes Your Honor.
We get it from the -- specifically from the debates --
Chief Justice Earl Warren: Where did you -- where did you quote that in your brief?
Mr. McIlwaine: We get it specifically Your Honor, from the debates leading to the Fourteenth Amendment, the debates on the Freedmen's Bureau Bill and the Civil Rights Act of 1866 --
Chief Justice Earl Warren: That is a little different though, isn't it?
Mr. McIlwaine: Only to this extent, Your Honor.
The Fourteenth Amendment has been construed by members of this Court a number of times in its historical setting.
The Court has said on a number of instances that the specific debates on the Freedmen's Bureau Bill and the Civil Rights Act of 1866 which act ultimately became the first section of the Fourteenth Amendment are the most material relating to the Fourteenth Amendment.
Now in this situation, by the time the Freedmen's Bureau Bill and the Civil Rights Act of 1866 had been debated and passed, the issue of whether or not the Fourteenth -- the Civil Rights Act of 1866 would infringe the power of the States to pass antimiscegenation statutes was so completely settled, that when the Fourteenth Amendment resolution was brought on, the question was no longer considered to be in open one.
The dissent on our brief and pointed out by the adversaries that we take the position that the Fourteenth Amendment was designed in part to place the Civil Rights Act of 1866 in the Constitution beyond the reach of shifting congressional majority.
We say in part only because as Mr. Justice Black has pointed out in his dissent in the Adamson case, there were a number of reasons why people thought the first section of the Fourteenth Amendment was included.
Some people thought that the Civil Rights Act of 1866 was absolutely unconstitutional and that it was necessary to pass an amendment to validate it.
Others thought that the Act was perfectly constitutional but that it could be repealed and that it was necessary to place it in the Constitution to keep it from being repealed.
Still, others thought that the First Section of the Fourteenth Amendment was nothing but the Civil Rights Bill of 1866 in another shape.
Nobody suggested that the Civil Rights Act of 1866 and its adoption into the first section of the Fourteenth Amendment of the Constitution expanded the rights which were covered in the 1866 Bill.
And certainly no one suggested that what was expressly removed from the 1866 Act was reinserted in the Constitution in the Fourteenth Amendment within a period of just a few months.
Now, the debates on the Civil Rights Act of 1866 clearly show that the proponents, those who had the billion charge, those who were instrumental in passing the first section of the Fourteenth Amendment clearly in answer to questions put by their adversaries stated in no uncertain terms that the Bill had no application to the States' power to forbid marriages between white and colored persons, not simply amalgamation but specifically between white and colored persons.
This was repeatedly stated by Senator Trumbull who was the Chairman of the Senate Judiciary Committee who steered the bill to the passage and was instrumental in passing the first section of the Fourteenth Amendment by Senator William Pitt Fessenden of Maine, who was the leading Republican member on the Joint Committee of Reconstruction of Fifteen, and by various other members who supported the Bill, and steered it to passage.
Now, text writers have disagreed as to whether or not the charge that the Civil Rights Act of 1866 would invalidate state laws was seriously made or whether it was made for political purposes simply as a smoke screen.
Regardless of the purpose for which it was made, the historical fact remains that the challenge was put by those who disagreed with the Civil Rights Act of 1866, that it would affect the power of the States to pass antimiscegenation statutes, and the proponents and the managers who had the bill in charge absolutely denied that it would have any such effect.
No one who voted for sponsored or espoused the Civil Rights Act of 1866 dared to suggest that it would have the effect of invalidating state antimiscegenation statutes.
Plus, we have a clear intent on the part of those who framed and adopted the amendment to exclude this area of state power from the reach of the amendment.
And this history is buttressed by the fact that the state legislatures, which ratified the amendment, clearly did not understand that it would have any effect at all upon their power to pass antimiscegenation statutes.
Justice Abe Fortas: Mr. McIlwaine, what do you with this Court's decision in the McLaughlin against Florida?
I don't believe you discussed that in your brief, at least I don't remember that you did.
Mr. McIlwaine: No sir, we do not.
We simply say that it relates to a statute which is above and beyond or extraneous to the interracial marriage statutes specifically left this question open for future decision and the question left open in McLaughlin is now here.
Justice Abe Fortas: I -- I understand that but your adversaries can -- made deal of comfort in McLaughlin in theory and principle and with respect to the specific points you are making here.
Mr. McIlwaine: I do not think they take any comfort from McLaughlin with respect to the legislative history of the Fourteenth Amendment, Your Honor.
They take comfort of course from the dicta of Mr. Justice Stewart that it is impossible for a State under the Fourteenth Amendment to make the criminal act turn upon the color of the skin of the individual and if that dicta for stands unchallenged, they have reason to take out -- proponent in this case --
Justice John M. Harlan: (Inaudible)
Mr. McIlwaine: But it has nothing [Laughter] to do with the Fourth -- the legislative history of the Fourteenth Amendment nor do I understand it in McLaughlin that the Court considered this point.
Justice John M. Harlan: (Inaudible) narrower simply because the statute in that case is the statute in this case (Inaudible)
Mr. McIlwaine: Yes sir but we could -- we do not put forward the proposition but the Pace case does justify the statute.
Justice John M. Harlan: Well, I understand.
Mr. McIlwaine: I mean, so if they want to take comfort in that, that's --
Justice John M. Harlan: They can be --
Mr. McIlwaine: -- let them be our guests.
We simply say that the power of the State to forbid interracial marriages, if we get beyond the Fourteenth Amendment, can be justified on other grounds.
Justice John M. Harlan: Your basic -- your basic position (Inaudible) the jurisdiction of this Court, given what you say is the -- the legislative history of (Voice Overlap) that is your basic --
Mr. McIlwaine: That is our basic position.
Yes, Your Honor.
Justice Fortas: But McLaughlin could not have been decided, perhaps McLaughlin could not have been decided as it was if the court had accepted that premise.
Mr. McIlwaine: The legislative history?
Justice Fortas: Yes.
Mr. McIlwaine: Well, I don't know that the legislative history would support the proposition with respect to the statute of lewd and lascivious cohabitation and so forth.
My legislative history or the legislative history which we are set out specifically relates to interracial marriage.
Justice John M. Harlan: The legislative history, it was raised (Inaudible)
Mr. McIlwaine: Well, so far as this case is concerned, we would like to point out one fact which -- or one circumstance which we think is analogous.
Perhaps, the most far reaching decision of this Court, so far as the popular mind is concerned in the last quarter of the century has been Brown against Board of Education.
In that case, the matter was argued in 1952 and in 1953, this Court restored the case to docket for re-argument and entered an order in which it had called the attention of all counsel in that case to certain matters which the Court en banc wished to have counsel consider.
The first of these questions was, and I'm quoting now from the Court's order, "What evidence is there that the Congress which submitted, and the state legislatures, and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand that it would abolish segregation in public schools?"
Now, of course it cannot be -- no presumption can be indulged that -- that question was put to the eminent counsel in that case simply as an academic exercise.
The matter was material to this Court to determine what the evidence was with respect to the intention of those who adopted the Fourteenth Amendment and the legislatures which ratified it.
It was material to the proper disposition of that case.
And in response to that question, on behalf of South Carolina, Mr. John W. Davis filed a brief in excess of 150 pages and on behalf of the Commonwealth of Virginia, the former Attorney General of Virginia and private counsel filed another brief in excess of 150 pages on that point.
The current Solicitor General of the United States, on behalf of the National Association for the Advancement of Colored People, Mr. Thurgood Marshall, also filed a brief of a similar length in which both sides of this question was presented to this Court.
In view of the conflict which the Court found out the result, the Court said that the legislative history on this point was unclear.
Now, that proposition cannot arise in this case because the legislative history on this point is all one way.
No one has been found who has analyzed this problem, who has suggested that it was the intention of the Framers of the Fourteenth Amendment or the understanding of the legislatures which ratified it that the Fourteenth Amendment affected to any degree the power of the States to forbid the intermarriage of white and colored citizens.
Justice Byron R. White: What was the -- what was the basis for the people who spoke to the question or suggesting that the language of the statutes they were then debating did not cover interracial marriage?
Mr. McIlwaine: Well, the proponents in saying that he did not cover, the bases placed were two.
One, that if the statute equally forbadee the white race to marry the colored race and the colored race to marry the white race then in the opinion of the Framers that that was not a violation of equal protection or due process.
In other words, the classification itself was not a violation.
Second was that historically, the regulation of marital relationship was within the States and it was no intent on the Fourteenth Amendment to have any effect at all upon the States' power over marriage.
These were two bases.
Justice Byron R. White: So whether are you -- you're arguing whether or not that first reason hasn't stood up in terms of Fourteenth Amendment adjudication --
Mr. McIlwaine: It has no effect on the intention of the Framers, the fact was it has not sustained --
Justice Byron R. White: -- even if they were wrong -- even if they intended to exclude it for the wrong reason and nevertheless intended to exclude it.
Mr. McIlwaine: That's correct Your Honor.
How can a subsequent difference in approach of this Court after the Framers of the Fourteenth Amendment are dead and buried possibly have any effect upon what they intended when they wrote this language?
Now, under this, the language which they used in saying that it had no relate -- had no effect upon the state's power over marriage, they also said and provided no discrimination is made by.
It's clear under the legislative history of the Fourteenth Amendment that if a statute had forbade white people to marry colored people and then had a different penalty proscribed for violation of that statute that even the Framers of the Fourteenth Amendment would have thought that that would have been unconstitutional and that the Fourteenth Amendment was specifically designed to meet that difference in penalty proposition.
Justice Byron R. White: These debates didn't' -- or these statements didn't take place with respect to the Fourteenth Amendment itself that --
Mr. McIlwaine: No Your Honor.
These -- the material which we have set at --
Justice White: That they were contemporaneous?
Mr. McIlwaine: Absolutely contemporaneous.
The Fourteenth Amendment resolution was brought on for consideration in early 1866 and it stayed in Committee while the Freedmen's Bureau Bill and the Civil Rights Act of 1866 were steered to passage.
Then after they were steered to passage, the debate began on the Fourteenth Amendment.
And by the time that began, this question of whether or not the Civil Rights Act of 1866 had any effect upon the power of the States to forbid interracial marriages was so thoroughly settled, that it did not even become an issue.
The question there was whether or not the Act was constitutional, unconstitutional needed the first section of the Fourteenth Amendment to substantiate it, but there's no suggestion ever made that it expanded the Civil Rights Act of 1866.
Our reading of the legislative history is sufficient to lead us to believe that if anybody had suggested that it would have that affect, the entire first section of the Fourteenth Amendment would have been lost.
No one, the proponents would never have suggested that the Fourteenth Amendment was going to abolish the power of the States to forbid interracial marriage.
Thus we say that if the legislative history is given effect in this case, the Statute of Virginia cannot be held to violate it.
Thank you Mr. Chief Justice.
Chief Justice Earl Warren: Mr. McIlwaine, you may --
Mr. McIlwaine: Mr. Chief Justice --
Chief Justice Earl Warren: -- continue your argument.
Mr. McIlwaine: -- may it please the Court.
We would sum up the argument which we have made on behalf of the legislative history of the Fourteenth Amendment by referring to a statement of Mr. Justice Black in his dissenting opinion in the recent case of South Carolina against Katzenbach, two sentences which read as follows, "I see no reason to read into the Constitution, meanings it did not have when it was adopted and which had not been put into it since.
The proceedings of the original constitutional convention show beyond all doubt that power to veto or negative state laws were denied in Congress."
We respectfully assert that there was no propriety in this Court's reading into the Constitution meanings it did not have when it was adopted or expanding the reach of the Constitution to embrace a subject which was specifically excluded by the Framers.
Justice Potter Stewart: Mr. McIlwaine, wouldn't it be pretty clear in the absence, in the absence of the specific legislative history which you refer us?
If it just were no history, wouldn't be pretty clear that the very purpose of the Equal Protection Clause of the Fourteenth Amendment was to provide that every state had to treat Negroes citizen the same as white citizens so far as their laws go?
Isn't that what the Equal Protection Clause means?
Mr. McIlwaine: Yes sir, I think it does.
I think that's reinforced by the legislative history and I don't know exactly how to consider the question aside from the legislative history, but that is clearly indicated in the legislative history itself.
Justice Potter Stewart: That is -- that was the very purpose of the Equal Protection Clause coming as it did after the -- in the light of the Civil War.
Mr. McIlwaine: That is correct, but it is clear that the Framers understood that in their intention, a law which equally forbade the members of one race to marry members of another race with same penal sanction on both did treat the individuals of both races equally.
Turning then to our alternative argument which we say, can only be reached if the legislative history of the Fourteenth Amendment is ignored and the Fourteenth Amendment is deemed to reach the state power to enact laws relating to the marriage relationship, we say that the prevention of interracial marriage is a legitimate exercise of the state power.
That there is a rational classification, setting so far as the Virginia population is concerned, for preventing marriages between white and colored people who make up the -- almost the entirety of the State population, and that this is supported by the prevailing climate of scientific opinion.
We take apart the position that while there is evidence on both sides of this question, when such a situation exist it is for the legislature to draw its conclusions and that these conclusions are entitled to wait and unless it can be clearly said that there is no debatable question that a statute of this type cannot be declared unconstitutional.
We start with the proposition, on this connection, that it is the family which constitutes the structural element of society and that marriage is the legal basis upon which families are formed.
Consequently, this Court has held, in a numerous decisions over the years, that society is structured on the institution of marriage that it has more to do with a welfare and civilizations of the people that any other institutions and that out of the fruits of marriage spring relationships and responsibilities with which the state is necessarily required the deal.
Text writers and judicial writers agree that the state has a natural direct and vital interest in maximizing the number of successful marriages, which lead to stable homes and families and in minimizing those which do not.
It is clear from the most recent available evidence on the psycho-sociological aspect of this question that intermarried families are subjected to much greater pressures and problems then those of the intramarried and that the state's prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.
Chief Justice Earl Warren: There are people who have the same -- same feeling about and interreligious marriages, but because that maybe true, would you think that the State could prohibit people from having interreligious marriages?
Mr. McIlwaine: I think that the evidence in support of the prohibition of interracial marriage is stronger than that for the prohibition of interreligious marriage.
But I think that the --
Chief Justice Earl Warren: How can you -- how can you say that?
Mr. McIlwaine: Well, we say that principally --
Chief Justice Earl Warren: Because -- because you believe that?
Mr. McIlwaine: No, sir.
We say it principally on the basis of the authority which we have cited in our brief, particularly, this one volume, which we have cited from copiously in our brief which is --
Chief Justice Earl Warren: Who wrote that?
Mr. McIlwaine: This is a book by Dr. Albert I. Gordon, Your Honor, which is characterized as the definitive book by Dr. Albert I. Gordon, which is characterized as the definitive book on intermarriage, and has the most careful, up to date, methodologically sound study of intermarriage in North America that exists.
It is entitled "Intermarriage, Interfaith, Interracial, Interethnic."
Now, our proposition on the psycho-sociological aspects of this question is bottomed almost exclusively on this particular volume.
This is the work of a Jewish Rabbi who is also, has a M.A. in sociology and a Ph.D. in social anthropology.
It is a statistical study of over 5000 marriages which was aided by the computers of the Harvard Laboratory of Social Relations and the MIT Computation Center.
This book has been given statistical form and basis to the proposition that from the psycho-sociological point of view, interracial marriages are detrimental to the individual, to the family, and to society.
I do not say that the author of this book would advocate the prohibition of such marriages by law but we do say that he personally and clearly expresses his view as a social scientist that interracial marriages are definitely undesirable that they hold no promise for a bright and happy future for mankind.
And that the interracial marriages bequeath to the progeny of those marriages, more psychological problems than parents have a right to bequeath to them.
As I say, this book has been widely accepted and it was published in 1964 as being the definitive book on intermarriage in North American that exists.
Justice Hugo L. Black: Is he an orthodox -- an orthodox rabbi?
Mr. McIlwaine: I have not been able to ascertain that, Your Honor, from any of the two that I've given.
He's a rabbi in Temple Emanuel in Newton Center, Massachusetts.
I do not understand that the -- and certainly, the religious view of the orthodox or the conservative or the reformed Jewish phase disagree necessarily on this particular proposition, but I cannot say whether Dr. Gordon is orthodox or a reformed Jewish rabbi.
I am more interested of course in his credentials as a scientist for this purpose, as a doctor of social anthropology and as a sociologist and of course, I am in his religious affiliation.
But it is clear, unmistakably clear, and we have set it forth as I say, in our brief and in the appendix to our brief, the results of the study which has been made and which is embodied in this volume.
As I say, it was published in 1964 and some of the statements which made in it based upon the demonstrably -- statistically demonstrably greater ratio of a marry -- of divorce, annulment in intermarried couples than intramarried couples.
Dr. Gordon has stated it as his opinion that it is my conviction that intermarriage is definitely inadvisible, that they are wrong because they are most frequently if not solely entered into under the present day circumstances by people who have a rebellious attitude towards -- towards society, self-hatred, neurotic tendencies, immaturity and other detrimental psychological factors.
Justice Potter Stewart: You don't know what is cause and what is effect, assuming the validity of these statistics. I suppose one could be argued that one reason that marriages of this kind are sometimes unsuccessful as the existence of the kind of laws that are in issue here and the -- and the attitudes of laws reflect, is that correct?
Mr. McIlwaine: I think it is more the latter, the attitudes that perhaps the laws reflect.
I don't find anywhere in this that the existence of law.
It is the attitude which society has taught interracial marriages, which in detailing his opposition says, "Causes a child to have almost insuperable difficulties in identification and that the problems which a child of an interracial marriage faces are those which no child can come through without damage to himself."
Now if the state has an interest in marriage, if it has an interest in maximizing the number of stable marriages and in protecting the progeny of interracial marriages from these problems, then clearly, there is scientific evidence available that this is so.
It is not infrequent that the children of intermarried parents are referred to not merely as the children of intermarried parents but as the victims of intermarried parents and as the martyrs of intermarried parents.
These are the direct quotes from the volume.
Chief Justice Earl Warren: Does Mr. Gordon take the position that there is a basic difference in the intelligence in the races?
Mr. McIlwaine: No, Sir, I don't understand that he does.
All that he purports to say one way or the other about the biological difference is, this is not his field, in other words, genetics and biology.
He reviews the materials on this and concludes for the purpose of his study that biologically and genetically, there is probably no justification for the prevention of intermarriage.
Then he takes it further into the psycho-sociological field and its effect upon children and upon the intermarried couples and this is what his views are based upon.
Chief Justice Earl Warren: I was wondering what you thought of the findings of this great committee of UNESCO where -- where about 20 of greatest anthropologists in the world joined unanimously in making some very cogent findings on -- on the races.
Do you agree with that or is it -- your position consistent with what is said by this group?
Mr. McIlwaine: No, Sir, we take two positions with respect to that.
One is that the evidence there is negative.
They take the position that there is no reliable evidence that there are any harmful consequences of intermarriage.
They do not say that the evidence shows conclusively that there are none.
Their position in the UNESCO's statement is that there is no evidence that there is any harmful effect.
That's the first position, that it is negative on this point.
The second position is set out in appendix C of our brief in which the next year, after the publication of the UNESCO's statement, UNESCO also published another book entitled "The Race Concepts" results of an inquiry in which it set forth the criticisms that had been leveled at that statement by equally eminent anthropologists and biologists with respect to it.
And we have on page 12 through 22 of the appendix to our brief, published extracted from the second UNESCO publication, a symposium of the critiques level at the UNESCO statement as well as other scientists who agreed with the UNESCO statement.
So we said that the UNESCO statement is by no means definitive and it is not the statement which is at all joined in by the scientific community especially on that point.
Chief Justice Earl Warren: I hardly think that -- I hardly think that the whole scientific community would agree with Mr. Gordon either, would they?
Mr. McIlwaine: I guess that they would not, Your Honor, but I do not find that on the psycho-sociological aspects there is any disagreement with his work.
No one has challenged the statistics in this work and it has been widely received as we put -- set forth in our brief as putting statistical form on an embarrassing gap in the literature of the social sciences.
And it has been -- as I say received by -- not only by scientists but by religious individuals as well.
Chief Justice Earl Warren: It seemed to me that the last paragraph of UNESCO's report is rather definite.
It isn't general in any sense.
It said, "The biological data given above stand an open contradiction to the tenets of racism.
Racist's theories can in no way pretend to have any scientific foundation and the anthropologist should endeavor to prevent the results of their researches from being used in such a bias way that they would serve nonscientific ends that rather --
Mr. McIlwaine: And --
Chief Justice Earl Warren: -- is a definite finding it seems me.
Mr. McIlwaine: Yes, sir, but there is equally in the second publication of UNESCO, there is equally stringent criticism of that statement as being an attempt to close a system of knowledge and to state that there is no scientific evidence the other way when that is simply not the case, and the -- this material which we've set forth in our brief if some the second UNESCO's statement.
In other words, UNESCO itself realized that its first publication elicited such criticism that it felt down to put this criticism as well as other supplementing UNESCO statement in a second publication, which shows that there is by no means unanimity of agreement on this point.
And we have pointed out in further appendices to our brief, the 1964, the UNESCO statement of course in 1951 and 52, we have pointed out the recent statements of Professor Engel, professor of physiology at Chicago University in which he cautions against interracial marriages on the ground, not of any specific finding of his own, but on the grounds that there has not been sufficient scientific investigation of this matter for a physiologist at least to determine the true effects, physiologically speaking of interracial marriage and cautions against it.
And it is perfectly clear that the libraries are filled with criticizes and research studies of the cautionary nature which advised against it on a biological and genetic point of view.
A number of these were cited in Perez against Sharp in the dissenting opinion and we have updated them by the citation of additional authorities most of which were published in the last five years, which updates that study.
Perhaps, I can summarize this.
Justice Hugo L. Black: I guess we would agree, wouldn't you, that you can't settle that controversy?
Mr. McIlwaine: I would Your Honor.
I have stated clearly in the brief that the Court to undertake to end of this controversy, the Court would find itself admired in a sembonian bag of conflicting scientific opinions which I assure the Court is sufficiently broad, sufficiently fluid and sufficiently deep to swallow up the entire federal judiciary.
If you read one volume on this point, you find 20 additional authorities cited in that one volume which you haven't read.
By the time you read six articles on this point, you've got a bibliography of a 150 books on the same subject, pro and con.
Justice Hugo L. Black: May I ask you this question, aside from all questions from the genetics, psychology, psychiatry, sociology, and everything else aside from all of them, forgetting it for the moment, is there any doubt in your mind that the object of this statute, the basic premise on which they rest, is that the white people are superiors of the colored people and should not be permitted to marry?
Mr. McIlwaine: On these -- the two statutes before Your Honor, I do think that that is not so.
So far as 20-54 is concerned, the Act of Virginia of 1924 to preserve racial purity, I think that is unquestionably true.
Justice Hugo L. Black: I'm not talking about what they labeled it.
I'm just asking your -- your judgment.
Mr. McIlwaine: I think it was --
Justice Hugo L. Black: Is there any possible basis, or is -- is not the basic premise on which they read white people are superior to the colored people and that they should not therefore be permitted to marry because it might pollute the white race.
Mr. McIlwaine: Your Honor I think that there is.
In other words, I think there is its justification for saying that is not the --
Justice Hugo L. Black: Well, do you -- do you would think there's a stronger justification that that is it?
Mr. McIlwaine: You mean -- I think historically that the -- that the legislatures that which enacted them had that thought in mind.
Justice Hugo L. Black: That's right.
Mr. McIlwaine: Yes, I think that -- that's clear.
Justice Hugo L. Black: Basic thing in which they rested.
Mr. McIlwaine: That -- that's which the original enactments were rested.
I think that's perfectly clear.
But Your Honor I say that you are facing a problem in 1967 (Voice Overlap) --
Justice Hugo L. Black: Well, whether its 1967 or 1868, makes no difference to me in discussion of the equal protection of the laws.
It is that -- as I would see it, is it not true that that is the basic reason it was done?
Mr. McIlwaine: I think --
Justice Hugo L. Black: And that a man who belongs for this race, that is forbidden to marry -- marry in the other race.
It's bound to feel that he is not given equal protection of the laws.
Mr. McIlwaine: Well, the prohibition Your Honor works both ways.
Justice Hugo L. Black: Work what?
Mr. McIlwaine: The prohibition works both ways.
You say a man that is prohibited from marrying into another race feels inferior.
The prohibition also prohibits the white person to marry the colored person.
Justice Hugo L. Black: (Voice Overlap) prohibition is the same but it's the common sense and pragmatic of it not as the result of the old slavery days.
Mr. McIlwaine: The motivation --
Justice Hugo L. Black: And the old feeling that the white man which a period to the colored, which was exactly was the Fourteenth Amendment was adopted to prevent.
Mr. McIlwaine: Your Honor, I think it is clear that the motivation of the earlier statutes, if you -- by motivation you undertake to analyze the feelings of the individual members of the legislature that were responsible for the adaption of the statutes, I think that is correct, but I do not see how that can affect the constitutional problem which is presented to this Court where an enactment of the general assembly of Virginia is on trial in which we submit was beyond the scope of Fourteenth Amendment as the first proposition and as a second proposition even if it wasn't beyond the scope of the Fourteenth Amendment and is subjected to due process and equal protection test it is a justifiable regulation in view of today's evidence on the point.
Chief Justice Earl Warren: Well, I want to know Mr. McIlwaine if it does work equally as against both.
Now, as counsel pointed out, it -- it prevents -- it keeps the white race as you -- you would say pure but it doesn't keep the other racists that way.
You don't -- you don't have any prohibition against the Negro marrying a Malay or a Mongolian.
Mr. McIlwaine: We don't have any prohibition against anyone in Virginia, so far as these statutes are concerned marrying a Mongolian or Malay.
Chief Justice Earl Warren: Well, I know but if it's to -- if it is to preserve the purity of the racists, why aren't they and as much entitled to have purity of their racists protected as a white race?
Mr. McIlwaine: They are, Your Honor and if --
Chief Justice Earl Warren: But how can you -- how can you -- what prohibits it under Virginia law?
What prohibits the -- a Negro from marrying an Indian?
What prevents a Negro from marrying a Japanese or a Malay?
Mr. McIlwaine: There's nothing -- there's nothing that prohibits the whites either.
Chief Justice Earl Warren: I beg your pardon.
Mr. McIlwaine: There's nothing that prohibits the whites either as I've undertaken to say Your Honor that Virginia statute deals with Virginia situation.
The western statutes whereas their aspiration or classification of a statement maybe one-third Caucasian, one-third Negro and one-third Oriental, those statutes deal with that problem.
But Virginia problem is not presented -- it does not present any question of any social evil with which the legislatures required to deal resulting from interracial marriage between Negroes and Malays or whites and Malays because there is no significant population distribution to that extent in Virginia.
Chief Justice Earl Warren: Well, I -- I understood from the brief of Mr. Marutani that there are 1750 Japanese in Virginia according to the last census.
Mr. McIlwaine: I do not say that this is not so.
Chief Justice Earl Warren: Well, do we -- do we deny for protection to them?
Mr. McIlwaine: No, Sir, because that --
Chief Justice Earl Warren: That's all what I'm concerned with.
Mr. McIlwaine: That sort of racial composition Your Honor which constitutes less than one-fourth of 1% does not present the probability of sufficient interracial marriages and sufficient difficulty for the Legislature to be required to deal with.
The Legislature in this statute has covered --
Chief Justice Earl Warren: You mean the principle because there are only a few people of one race in Virginia that Virginia can say they have no rights?
Mr. McIlwaine: It isn't the amount of saying that they have no rights, Your Honor.
It's a matter of saying that they -- they do not present a problem.
Chief Justice Earl Warren: (Voice Overlap) they have the same rights as the other -- other race, the white race to keep their race pure.
Mr. McIlwaine: We simply say that in Virginia those -- that segment of the population is --
Chief Justice Earl Warren: Does (Voice Overlap)
Mr. McIlwaine: No, it does not present a problem, which we are required to deal.
The justification for these statutes --
Chief Justice Earl Warren: Because they have -- they've got enough of them, is that all (Voice Overlap) --
Mr. McIlwaine: That is correct.
Chief Justice Earl Warren: Well --
Mr. McIlwaine: And on that point, we have said that a -- this Court has clearly said that a statute is not unconstitutional simply because it does not reach every facet of the evil with which it might conceivably deal.
Suppose in Virginia there were no Japanese, would a statute beyond constitutionals -- suppose that Virginia's population was entirely 100% white or colored in any proportion you want, but there was no Japanese in Virginia, would a statute, which did not undertake to regulate marriages between Mongols or Malays or Japanese beyond constitutional, simply because it didn't regulate a relationship which doesn't even exist under Virginia law?
Now, the fact that there are only few who does not, you cannot inflate this minority group into constitutional significance when you're talking about the Legislature dealing with the problems with which is it likely to be faced.
The statute doesn't have to apply with mathematical (Inaudible).
It is sufficient if it reasonably deals with what the Legislature can reasonably apprehend to be an evil and with 99% of the population in Virginia, in one of these two races, the danger of interracial marriages so far as Virginia is concerned is the danger of marriage between white and colored, not the danger of marriage of either the white or the colored with racist, which all intents and purposes hardly exist, as one of the text writers which they have cited in their brief.
Mr. Applebaum in a previous entitled miscegenation statute is a constitutional and social problem which is probably the most balanced analysis of these statutes that we have found says this, “Coverage of other races in the southeast hardly necessary since they casually exist” and surely this is true under Equal Protection Clause.
The Legislature of Virginia is not required to foresee that someday there'll be in Virginia a significant population of another racial group which may require Virginia to deal with that problem.
Chief Justice Earl Warren: There's a lot of Indians in the south, aren't there?
Mr. McIlwaine: In the south generally, yes, more in the Midwest I think.
Chief Justice Earl Warren: This man says they're lot.
Mr. McIlwaine: Very -- very few in Virginia.
As I said, the statistic show that all other races combined, outside of white and Negro, constitute less than 25, 100 of 1% of Virginia's population, according to the 1960 census and those figures have not varied more than 1% or 2% from the 1950 population figures.
So that the problem of other types of interracial marriages, which cause the interracial marriage statutes of western states to considerably oriental problem just simply doesn't exist in Virginia.
Chief Justice Earl Warren: I suppose that either of this happened to be one of the 1750 Japanese who are in the state and you have a law of that kind, we would deal with – we would somewhat to mean, would we not?
Mr. McIlwaine: I don't see how we would, Your Honor.
I mean they had the -- so far as the statute is concerned, there is no prohibition against whites or Negroes marrying any other races.
Chief Justice Earl Warren: It would be probably against Japanese marrying whites.
Mr. McIlwaine: No, Sir, not under this statute.
There is just no prohibition --
Chief Justice Earl Warren: I said counsel to think it was rather open question as to whether --
Mr. McIlwaine: Well, they do Your Honor because they insist on dragging into this case, statutes, which are not here and which they can easily attack.
I mean it's well-known strategy to attack the easy statute which is simply not involved in this case.
Chief Justice Earl Warren: Does your statute require -- apply only the colored people, Negroes?
Mr. McIlwaine: White and colored -- white and colored that's all (Voice Overlap) --
Chief Justice Earl Warren: What about colored?
Mr. McIlwaine: Colored people are defined in Virginia's statute the same way define by the United States Department of Census Your Honor.
Those people who have Negro blood or had any mixed Negro blood are considered to be colored people.
The Virginia statute says --
Chief Justice Earl Warren: Well, but it does -- it does apply, doesn't it, to American-Indians if they -- if anyone has more of the one-sixteenth Indian blood in them, it applies to him, doesn't it?
Mr. McIlwaine: No, Sir, that's 20-54 again.
That's the statute with --
Chief Justice Earl Warren: Well, I know but that's the same -- same body of law on this area, isn't it?
*START HERE Mr. McIlwaine: No, sir, because the two statutes, which you have involved in this case, Your Honor, were originally started as a prototype in 1691 and they have been on the Virginia books for more than two centuries.
The law to which they refer, the law of ruling out of what they call the Hysteria of the 1920s is an entirely separate law which was designed to preserve the purity of the white race.
It is a statute, which is not before this Court, and a statute, which we are not defending.
The statute --
Chief Justice Earl Warren: Have you ever declared it to be unconstitutional or --
Mr. McIlwaine: No, sir.
Chief Justice Earl Warren: -- or invalid?
Mr. McIlwaine: No, sir, the Virginia courts have not.
Justice Hugo L. Black: It's one of the group of statutes, is it not, intended to make it intolerable or impossible or to be very burdensome for white and colored people to marry and for the Japanese and white people to marry and all these others.
How can they be separated, I don't quite understand?
Mr. McIlwaine: They can be separated Your Honor because the fact that historically and in their coverage and in the context of this case, they are different.
The act --
Justice Hugo L. Black: Well, they are not all based on the premise of doing something to make it bad or hard or difficult or illegal for the two groups to marry?
Mr. McIlwaine: The statute before Your Honors is of that nature --
Justice Hugo L. Black: I thought not all of the group.
Mr. McIlwaine: -- the two groups, but the statute that which they refer which had not mentioned in the Virginia opinion, which has never been applied to them and which is not now applied to them and which this Court we respectfully submit cannot possibly reach is a statute which forbids a white person to marry any other than a white person.
Justice Hugo L. Black: What -- what effect that does have on a white person and a colored person --
Mr. McIlwaine: It forbid --
Justice Hugo L. Black: -- who's married in New York and move to Virginia to live?
Mr. McIlwaine: A white person and a colored person who married in New York and moved to Virginia to live under that statute would not be able -- their marriage would not be recognized in Virginia under that statute or under this statute.
Justice Hugo L. Black: Under Virginia law?
Mr. McIlwaine: Under Virginia law, that's correct.
Justice Hugo L. Black: I suppose that they would be living an adultery.
Mr. McIlwaine: That's correct Your Honor.
Well, either that --
Justice Hugo L. Black: Fornication.
Mr. McIlwaine: Fornication.
Justice Hugo L. Black: And that could be punished.
Mr. McIlwaine: Either should go have it or either should --
Justice Hugo L. Black: That should be punished.
Mr. McIlwaine: Yes, Sir.
Chief Justice Earl Warren: As a felony, as a felony?
Mr. McIlwaine: No, sir.
The marriage you see if it were between residents of New York would not offend either of these statutes at all.
It would be a felony if they were Virginia residents and that state for that purpose.
Chief Justice Earl Warren: I though you had a general statutes that says every -- every marriage between colored person and a white was void --
Mr. McIlwaine: That's right.
Chief Justice Earl Warren: -- without the necessity of divorce --
Mr. McIlwaine: Divorce or --
Chief Justice Earl Warren: -- or any other judicial decree.
Mr. McIlwaine: That's correct, Your Honor.
Chief Justice Earl Warren: Then -- that they would be -- that they would be living in adultery, would they not?
Mr. McIlwaine: No, sir because Virginia would not recognize the marriage as void and the offense there would probably be the same type of offense that this Court considered in McLaughlin against Florida and namely illicit cohabitation, a misdemeanor.
Chief Justice Earl Warren: I understood earlier in your argument that if -- if the State of Virginia had -- had shown a strong of interest as they've shown in this case to preserve purity the races that they probably would not recognized the marriage of another state.
Mr. McIlwaine: I think that is true Your Honor, but it does not follow that if they came to Virginia, they would be guilty of a felony.
Only those citizens of Virginia who purport to engage in a miscegenation marriage or who leave the State and go to another State with the intention of returning to Virginia to evade the law are guilty of a felony.
The legal consequences would flow -- which would flow from the position you put, would be that Virginia would not recognize this couple as being married at all.
They would not --
Justice Hugo L. Black: Therefore, they have fall under the law, would they not?
Mr. McIlwaine: Therefore, they would fall under the misdemeanor statute, I believe it is Your Honor, forbidding illicit cohabitation not under this --
Justice Hugo L. Black: (Voice Overlap) criminal law.
Mr. McIlwaine: It would be criminal, yes.
Chief Justice Earl Warren: But I -- I thought you've got a statute which said that -- that cohabitation between whites or between Negroes was only a misdemeanor but that it said it was between white and Negro, it was a felony.
Mr. McIlwaine: No, sir, that's the Florida case.
Chief Justice Earl Warren: I beg your pardon.
Mr. McIlwaine: That is -- that is the Florida case, which was considered.
In Virginia the law is just a simple non-racial elicit cohabitation statute.
In the brief on behalf of appellants, with this I will move to a conclusion, an article is cited which is I say we think it to be the best balance of the authorities investigating this problem.
I suppose that in reading from it, I can summarize best the results of an investigation of the materials, which are available, and the characterization of those materials.
The author of that article says this, "Reference to scientific and sociological evidence of the undesirability of amalgamation is frequently made but the courts have rarely examined any of this evidence.”
The California Court in Perez made the first real inquiry into the evidence and found that the weight of the evidence refuted the view that the Negro race or the progeny of interracial marriage is inferior.
It is not the purpose of this article to reach any conclusion regarding the available scientific data on the results of miscegenation.
It will suffice to indicate by a brief survey of the materials that there are may arguably be sufficient evidence on both sides of the controversy to afford some basis for a legislature to take either side.
He goes on, a large number of studies and research projects have concluded that miscegenation is undesirable.
He points out that Justice Shenk dissenting in Perez cited 10 authorities, one of which itself cited 10 additional authorities which would support a legislative finding that amalgamation of the races is inimical to the public welfare.
He says that these studies were frequently made by notable scientists and it reached that conclusion.
He then goes on and says the authorities' finding that interracial, intermixture has no harmful effects are also quite numerous and he considers that authorities available on that point, including the UNESCO statement and he concluded, “Nonetheless, there is still a considerable debate in comparatively recent studies as the desirability of racial intermixture.
Thus, even today, a legislature can find some scientific support for the position that miscegenation should be banned.”
He then goes on to say that of course the sociological evidence is even more persuasive in support of a policy against miscegenation.
And in the later portion of the article, he takes the position that even if the presumption of the validity of the statute should be reversed and the State were required to carry the burden of justifying the statute as a piece of social legislation, he says that the social harm argument would present a closer case.
He said, “But again, it is not likely that the State could prove that the social difficulties of the children of miscegenous couples are exceptional enough to overcome a presumption against racial categorization.”
He is assuming here that the presumption is against the State.
Concrete evidence of the effect upon such children would be difficult to obtain particular since miscegenation is not widespread.
The State then could not present any definite estimate of the potential of the evil it is attempting to prevent.
A State might produce a strong case by investing in research, but that would involve considerable time and expense.
Now of course, we say it involves no time and the expense is simply an expenditure of $10.
The study which he is suggesting could be made to -- to unable the state to carry the burden of justifying the statute even if the burden were upon the State as already been made and it was rolling off the presses even as Mr. Applebaum wrote this order.
There is no reference in that --
Chief Justice Earl Warren: Assuming Mr. -- Mr. McIlwaine that is correct in the scientific findings, is there quite any of those things to the rights of people under the Fourteenth Amendment equal protection of the laws?
Mr. McIlwaine: Yes, indeed, Your Honor.
He indeed --
Chief Justice Earl Warren: He does that?
Mr. McIlwaine: On both sides of the question, yes Your Honor.
Chief Justice Earl Warren: He argues --
Mr. McIlwaine: He argues both sides of the question.
Chief Justice Earl Warren: Is he legal writer?
Mr. McIlwaine: Yes, Your Honor.
The gentleman in question is a member of Bar of the District of Columbia, an Associate of Covington-Burling in Washington, B.A. of from Yale University and an LL.B of the Harvard Law School.
He concludes or I would assume he concludes that it is necessary for the Court to reverse the presumption in favor of the legislation to be a presumption against the legislation for these statutes to be declared unconstitutional.
If the presumption in favor of the legislation is permitted to prevail, then there is arguable evidence on both sides of this question and the Court is not justified in overturning the legislative determination on this point.
If the presumption is against us, we say that despite the fact that this article would seem to indicate that the State couldn't carry the burden, he said the particular difficulty would be in the absence of evidence of a sociological nature which we say is now at hand and which clearly shows that the State has a justifiable and overriding interest in preventing interracial marriages.
Of course, we go fundamentally to the proposition that for over hundred years since the Fourteenth Amendment was adopted, numerous states as late as 1956 the majority of the States and now even 16 states have been exercising this power without any question being raised as to the authority of the States to exercise this power.
Chief Justice Earl Warren: Those happened to be the same 16 states that had school segregation laws, do they not?
Mr. McIlwaine: Just a number of them are not Your Honor, most of them -- most of them are (Voice Overlap) states.
Chief Justice Earl Warren: (Voice Overlap) 16 are not among those that had segregation laws.
Mr. McIlwaine: Well, Your Honor is now asked me a question, I am not sure by states that had miscegenation laws.
I can give Your Honor the States which now, the 16 states which have these laws on their -- on their books at the present time.
Chief Justice Earl Warren: Yes.
Mr. McIlwaine: But, I do not have available of the -- the states which had antimiscegenation, I mean, the school segregation statutes.
Chief Justice Earl Warren: No, I'm talking about those 16 that -- I've been -- I've just been looking at the list and I -- I can't see single one of these States that wasn't among those that had miscegenation or had the school segregation laws.
You may find one but I like the identical.
Mr. McIlwaine: Well, in Missouri, I'm not sure.
Chief Justice Earl Warren: Yes, Missouri did -- Missouri did have.
Mr. McIlwaine: Well, it may --
Chief Justice Earl Warren: Oklahoma is the border state.
It had --
Mr. McIlwaine: Oklahoman is the border state and -- It had I believe Your Honor.
Chief Justice Earl Warren: Yes.
Well, it doesn't matter of any great consequence but (Voice Overlap) --
Mr. McIlwaine: But of course say that there were 30 states in 1950 which had these statutes and those days included the number of the western states, Wyoming, California and Washington in 1950 --
Chief Justice Earl Warren: But they (Voice Overlap) --
Mr. McIlwaine: -- (Voice Overlap) they repealed that statute, as Maryland had repealed.
And we say that this would indicate to us that this problem is one which should be left to the legislature.
Some states, each individual state has the right to make this determination for itself because under the Fourteenth Amendment it was intended to leave the problem there.
The judicial decisions contemporaneous with the Fourteenth Amendment and all of the decisions with exception to Perez case since that time has confirmed the common understanding of everyone that these statues were not within the scope of the Fourteenth Amendment, and we say it is unlikely that judges from all the States and from both judiciaries could have for so long a period of time acted in disregard the provisions or the constitution or in any ignorance of what its provisions were intended to accomplish.
Justice John M. Harlan: Could I ask you a question before you sit down?
Assuming for the moment that your historical argument is rejected, how would you rationalize a decision upholding the statute before Brown against the Board of Education?
Mr. McIlwaine: We rationalize a decision upholding this statute --
Justice John M. Harlan: Upholding this statute, assuming now that your historical argument is rejected --
Mr. McIlwaine: Yes, sir.
Justice John M. Harlan: And I'm expressing no view on that or intimating no view or whatever, but starting from that premise, how would you rationalize the decision of uphold in the statute with Brown against the Board?
Mr. McIlwaine: Well, I would say that Brown against the Board of Education proceeded upon the premise that education was fundamental to good citizenship that it was a necessary requirement of good citizenship that all children were in the modern age required to be educated and that the right to be educated in this present today world was one of overriding importance and that right could not be infringed by statute which the court found made the educational opportunities inherently unequal --
Justice John M. Harlan: Wouldn't now -- wouldn't you say the right of marry and to bear a children as equally important?
Mr. McIlwaine: I would say that the right to marry if I was rationalizing a decision upholding it would under the decision of this Court in Meyer against Nebraska and Pierce against Society of Sisters and Skinner against Oklahoma, but also say that the right to marry is a right but there is no requirement that people marry and therefore, a statute which forbids marriage is not the same as forbidding children to receive education.
Now if you're going -- if you say a decision is going to uphold the statute then you just naturally flow from the fact that marriage is a right that it cannot be arbitrarily infringed.
Then if you make the statement that any racial classification necessarily infringes the right, then you have a decision of course would be consistent with Brown against Board of Education, if you take that view.
But in that case, you do not come to the proposition of the power of the State to forbid interracial marriages and the interest of the state in doing so on the basis of the valid scientific evidence that exists on the detrimental effects of interracial marriage.
I don't see how you can start with the right and come to the proposition that the state statute infringes the right unless you exclude the evidence which tends to show that the statute in question is rational because even rights, a right to marry is subjective to reasonable limitations by the State as always been.
Polygamy statutes have never been questioned.
Incest statutes have never been questioned.
They have in fact been specifically upheld and upheld against the charge in Reynolds against the United States that the person convicted there had religious duty to marry, not to the other right to marry, his religious tenet as a Mormon required him to marry.
And this Court held that the fact that its religious tenet required him to do so, did not prevent him from being convicted criminally about engaging in a polygamous marriage.
So you can't reach the conclusion that this statute infringes, a right under the Fourteenth Amendment without examining evidence on behalf of the State to show that the infringement is a reasonable one, just as reasonable as far as we can determine, as far more evidence of the reasonableness of a ban against interracial marriage than there is against polygamous or incest marriages so far as the scientific proposition is concern.
But I cannot conceive to this Court striking down the polygamy or incest statute on the basis of scientific evidence, and I submit that it would be no more appropriate for this Court to invalidate the miscegenetic statute on that basis.
Chief Justice Earl Warren: Mr. McIlwaine, didn't -- didn't we in the segregation cases have also argued to us what was supposed to be scientific evidence to the -- to the effect the whites would be injured by having to go to school with the -- with the Negroes?
Mr. McIlwaine: Your Honor, I --
Chief Justice Earl Warren: Isn't that -- isn't the same argument you're making here?
Mr. McIlwaine: Yes sir, it is.
But it has been made in a context in which the evidence in support of a proposition is existing evidence which is voluminous in its character and which supports the view not of racial superiority or inferiority, but a simple matter of difference that the difference is such that the progeny of the intermarried are harmed by it and that the divorce rate arises from the difference, not from the inferiority or superiority of either race.
Thank you Mr. Chief Justice.
Chief Justice Earl Warren: I see.
Rebuttal of Bernard S. Cohen
Mr. Cohen: May it please the Court.
The State has made a strong argument in favor of the Court limiting its decision to Sections 20-58 and 20-59 but has very, very carefully avoided the fact that 20-58 which -- which is classified as evasion statute is much more than that.
20-58 cannot exist without 20-54 because it refers to a white person and there is nowhere else the Virginia Code that a white person is defined other than in Section 20-54 which is the general ban on interracial marriages.
So, if he says that 20-58 and 20-59 are before this Court, it is absolutely -- absolutely necessary that 20-54 also be considered because 58 and 59 could not stand without the definition in 54.
In addition, the definition of colored person appears in Section 1-14 of Virginia Code and so it is here involved.
These are the very minimum number of sections which can possibly be involved, but we go further.
When the Racial Integrity Act of 1924 was passed, it was passed as a single act with 10 sections.
It is true and we do not argue with the State that 20-58 and 59 were Sections which had pre-existed the Racial Integrity Act of 1924 and we're just added on with other sections, but it was part and parcel one act and today, the mere fact that it's codified with Virginia Code with different numbers does not the detract from the fact that it was passed as one legislative act on one day with the same vote before the Virginia Legislature.
They are inseparable.
The State has urged that the legislative history is conclusive on the Fourteenth Amendment and that nobody has stated that the Fourteenth Amendment did expand the meaning of equal protection and due process over and above what was meant to be included in the Civil Rights Act of 1866.
In our brief at page 30, we take issue with this and again at page 32, citing Bickel, the original understanding of desegregation decision and we go on to say referring to the Bickel work that a correct appraisal of the legislative history of the broad guarantees of the Fourteenth Amendment for purposes of constitutional adjudication is that they were open ended and meant to be expounded in light of changing times in circumstances.
On page 32, we indicate that the Bickel article has concluded that the principle of the Brown case should control the constitutionality of the miscegenation laws.
This is in the Bickel article, The Least Dangerous Branch at page 71 published in 1962.
This is a definitive work and this is a study of the legislative history, the Fourteenth Amendment that has reached the very conclusion that the State would have us believe and nobody can reach.
Justice John M. Harlan: (Inaudible) other side of the --
Mr. Cohen: Oh yes, Your Honor.
Another point of statutory construction though Your Honor which I think is very significant.
If the Framers had the intent to exclude antimiscegenation statutes, it would have been taken but a single phrase in the Fourteenth Amendment to say excluding antimiscegenation statues.
The language was broad, the language was sweeping, the language meant to include equal protection for Negroes that was at the very heart of it and that equal protection included the right to marry as any other human being had the right to marry subject to only the same limitations.
The State has said that the amount of persons other than Negroes and whites involved is very insignificant and very small.
Well, this is the first Negro-white miscegenation case in Virginia to come to the Supreme Court.
It is the first Negro-white miscegenation case to go to the Supreme Court of Appeals of Virginia.
There have been a handful of others, every single one of them involving a person of what might be called yellow extraction or Malaysian or Filipino and white persons.
So to say that the problem itself is insignificant in Virginia is not at all true which reflected in the actual case law in Virginia, the case of Calma versus Calma, involved a Filipino, the case of Name versus Name involved a possible oriental whose background was not exactly clear from the record.
Now, the State is ignoring a very important point which we cannot overemphasize if this decision only goes to Sections 58 and 59 of the statute and that is the right of Richard and Mildred Loving to wake up in the morning or to go to sleep at night knowing that the sheriff will not be knocking on their door or shining a light in their face in the privacy of their bedroom for illicit cohabitation.
If 58 and 59 are found unconstitutional and 54 is allowed to remain on the books that is precisely what can happen.
It will be an exact repetition of what in fact did happen to them and this Court will not be given the Lovings the relief they require.
The Lovings have the right to go to sleep at night, knowing that should not -- should they not awake in the morning, their children would have the right to inherent from them under intestacy.
They have the right to be secure and knowing that if they go to sleep and do not wake in the morning that one of them or survivor of them has the right to social security benefits.
All of these are denied to them and they will not be denied to them if the whole miscegenous -- antimiscegenation scheme of Virginia Sections 20 through 50 -- through 20-60 are found unconstitutional.
While, I do not place great emphasis on the work of Rabbi Gordon, I feel compelled to note that in the State's quotes from Rabbi Gordon, there is conspicuous absence of the following quotation on appendix page 4 which would fit uniquely in the ellipsis shown there.
Rabbi Gordon states and it is not printed in the State's brief, our democracy would soon be defeated if any group on the American scene was required to cut itself off from context with persons of other religions or races.
The segregation of any group religious or racial either voluntarily or involuntarily is unthinkable and even dangerous to the body politic.
Now, Virginia stands here today and in this Loving case for the first time tries to find a justification other than white racial supremacy for the existence of its statute.
Mr. McIlwaine is quite candid that this is a current day justification not the justification of the Framers.
On the one hand, I see a little dilemma here.
He asks that the Court look to the intent of the Framers of the Fourteenth Amendment but to ignore the Framers of the 1924 Act to preserve racial integrity in Virginia.
It is not a dilemma I would like to be in.
Justice John M. Harlan: (Inaudible)
Mr. Cohen: Well, I have no quarrel with that statement Your Honor.
Chief Justice Earl Warren: You're almost in the same dilemma yourself, aren't you, according the Virginia legislative history of Virginia statute, but finding that the legislative history of Fourteenth Amendment (Voice Overlap) report.
Mr. Cohen: No, but I -- no, I don't feel that dilemma at all Your Honor.
We do not for a moment concede that the legislative history of the Fourteenth Amendment is clear or conclusive that they meant to exclude miscegenetic marriages while Mr. McIlwaine has stood here and I believe conceded that the intent of the Framers of 1924 Act of -- of Racial Integrity was a White Supremacy Act.
So I don't feel it at all uncomfortable in that situation.
Now, on the one hand, the State urges that it is not necessary to prohibit or to -- for the statute to go against smaller minority groups that exist in Virginia.
And I say that why have they taken the trouble in Section 54 to prohibit marriages between whites and Malaysians or white and anybody else.
The fact of the manner is that it is important to the statutory scheme of Virginia to discriminate against anybody but white people.
Now, while there is no definitive case decision as to whether or not a New York couple involved in a miscegenetic marriage moving to Virginia will be prosecuted for a felony and I admit it might be open to some judicial interpretation.
I feel strongly and I think the Court can reach this decision and -- and I think some authorities writing in law journals have reached the decision that under Section 20-59, referring to any white person, intermarrying with a colored person, he shall be guilty of a felony and shall be punished by confinement of the penitentiary for not less than one or more than five years.
I don't see how there's any doubt appearing in a very same Racial Integrity Act of 1924.
Five sections after the act which says it shall hereafter the unlawful for any white person in the state to marry any save a white person.
I don't see how it is possible to conclude that even a New York couple would not be prosecuted for a felony in Virginia.
In any event, the State is conceded that they certainly would be guilty of a crime that of illicit cohabitation and has left be rest open.
We argue that certainly that there is no doubt that there are some prosecutors at the lower trial level some places in Virginia that would have no compunction whatsoever in going ahead and prosecuting under 59 as a felony couples moving into the State involved in miscegenetic marriage.
Justice John M. Harlan: In New York, they don't have a statute (Inaudible)
Mr. Cohen: Not to our knowledge and to our research, Your Honor.
Justice John M. Harlan: I mean the northern state (Voice Overlap) --
Mr. Cohen: I believe some of the Northern States did, Your Honor.
I think the State's position and the appellant's position come together and agree at only one point but the Court should not go into the morass of sociological evidence that is available on both sides of the question.
We strongly urge that it is not necessary and that our position on the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fourteenth Amendment specifically related to it being an anti-racial amendment, give this Court sufficient breadth and sufficient depth to invalidate the entire statutory scheme.