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Case #: 379US184

NO. 11.  ARGUED OCTOBER 13-14, 1964.  - DECIDED DECEMBER 7, 1964.  - 153
SO. 2D 1, REVERSED. 


A FLORIDA CRIMINAL STATUTE PROHIBITS AN UNMARRIED INTERRACIAL COUPLE
FROM HABITUALLY LIVING IN AND OCCUPYING THE SAME ROOM IN THE
NIGHTTIME.  NO OTHER FLORIDA STATUTE PENALIZES PRECISELY THE SAME
CONDUCT WHEN ENGAGED IN BY MEMBERS OF THE SAME RACE.  HELD:  THE
FLORIDA STATUTE DENIES THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY
THE FOURTEENTH AMENDMENT AND IS INVALID.  PP. 184-196. 

MCLAUGHLIN ET AL. V. FLORIDA. 

APPEAL FROM THE SUPREME COURT OF FLORIDA. 

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT. 

AT ISSUE IN THIS CASE IS THE VALIDITY OF A CONVICTION UNDER SEC.
798.05 OF THE FLORIDA STATUTES, PROVIDING THAT: 

"ANY NEGRO MAN AND WHITE WOMAN, OR ANY WHITE MAN AND NEGRO WOMAN, WHO
ARE NOT MARRIED TO EACH OTHER, WHO SHALL HABITUALLY LIVE IN AND OCCUPY
IN THE NIGHTTIME THE SAME ROOM SHALL EACH BE PUNISHED BY IMPRISONMENT
NOT EXCEEDING TWELVE MONTHS, OR BY FINE NOT EXCEEDING FIVE HUNDRED
DOLLARS." 

BECAUSE THE SECTION APPLIES ONLY TO A WHITE PERSON AND A NEGRO WHO
COMMIT THE SPECIFIED ACTS AND BECAUSE NO COUPLE OTHER THAN ONE MADE UP
OF A WHITE AND A NEGRO IS SUBJECT TO CONVICTION UPON PROOF OF THE
ELEMENTS COMPRISING THE OFFENSE IT PROSCRIBES, WE HOLD SEC.  798.05
INVALID AS A DENIAL OF THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY
THE FOURTEENTH AMENDMENT. 

THE CHALLENGED STATUTE IS A PART OF CHAPTER 798 ENTITLED "ADULTERY
AND FORNICATION."  (FN1) SECTION 798.01 FORBIDS LIVING IN ADULTERY AND
SEC. 798.02 PROSCRIBES LEWD COHABITATION.  BOTH SECTIONS ARE OF GENERAL
APPLICATION, BOTH REQUIRE PROOF OF INTERCOURSE TO SUSTAIN A CONVICTION,
AND BOTH AUTHORIZE IMPRISONMENT UP TO TWO YEARS.  (FN2)  SECTION
798.03, ALSO OF GENERAL APPLICATION, PROSCRIBES FORNICATION (FN3) AND
AUTHORIZES A THREE-MONTH JAIL SENTENCE.  THE FOURTH SECTION OF THE
CHAPTER, 798.04, MAKES CRIMINAL A WHITE PERSON AND A NEGRO'S LIVING
TOGETHER IN ADULTERY OR FORNICATION.  A ONE-YEAR PRISON SENTENCE IS
AUTHORIZED.  THE CONDUCT IT REACHES APPEARS TO BE THE SAME AS IS
PROSCRIBED UNDER THE FIRST TWO SECTIONS OF THE CHAPTER.  (FN4)  SECTION
798.05, THE SECTION AT ISSUE IN THIS CASE, APPLIES ONLY TO A WHITE
PERSON AND A NEGRO WHO HABITUALLY OCCUPY THE SAME ROOM AT NIGHTTIME. 
THIS OFFENSE, HOWEVER, IS DISTINGUISHABLE FROM THE OTHER SECTIONS OF
THE CHAPTER IN THAT IT IS THE ONLY ONE WHICH DOES NOT REQUIRE PROOF OF
INTERCOURSE ALONG WITH THE OTHER ELEMENTS OF THE CRIME.  (FN5) 

APPELLANTS WERE CHARGED WITH A VIOLATION OF SEC. 798.05.  THE
ELEMENTS OF THE OFFENSE AS DESCRIBED BY THE TRIAL JUDGE ARE THE (1)
HABITUAL OCCUPATION OF A ROOM AT NIGHT, (2) BY A NEGRO AND A WHITE
PERSON (3) WHO ARE NOT MARRIED.  THE STATE PRESENTED EVIDENCE GOING TO
EACH FACTOR, APPELLANTS' CONSTITUTIONAL CONTENTIONS WERE OVERRULED AND
THE JURY RETURNED A VERDICT OF GUILTY.  SOLELY ON THE AUTHORITY OF PACE
V. ALABAMA, 106 U.S. 583, THE FLORIDA SUPREME COURT AFFIRMED AND
SUSTAINED THE VALIDITY OF SEC. 798.05 AS AGAINST APPELLANTS' CLAIMS
THAT THE SECTION DENIED THEM EQUAL PROTECTION OF THE LAWS GUARANTEED BY
THE FOURTEENTH AMENDMENT.  WE NOTED PROBABLE JURISDICTION, 377 U.S.
914.  WE DEAL WITH THE SINGLE ISSUE OF EQUAL PROTECTION AND ON THIS
BASIS SET ASIDE THESE CONVICTIONS.  (FN6)

                      I. 

IT IS READILY APPARENT THAT SEC. 798.05 TREATS THE INTERRACIAL COUPLE
MADE UP OF A WHITE PERSON AND A NEGRO DIFFERENTLY THAN IT DOES ANY
OTHER COUPLE.  NO COUPLE OTHER THAN A NEGRO AND A WHITE PERSON CAN BE
CONVICTED UNDER SEC. 798.05 AND NO OTHER SECTION PROSCRIBES THE PRECISE
CONDUCT BANNED BY SEC. 798.05.  FLORIDA MAKES NO CLAIM TO THE CONTRARY
IN THIS COURT.  HOWEVER, ALL WHITES AND NEGROES WHO ENGAGE IN THE
FORBIDDEN CONDUCT ARE COVERED BY THE SECTION AND EACH MEMBER OF THE
INTERRACIAL COUPLE IS SUBJECT TO THE SAME PENALTY. 

IN THIS SITUATION, PACE V. ALABAMA, SUPRA, IS RELIED UPON AS
CONTROLLING AUTHORITY.  IN OUR VIEW, HOWEVER, PACE REPRESENTS A LIMITED
VIEW OF THE EQUAL PROTECTION CLAUSE WHICH HAS NOT WITHSTOOD ANALYSIS IN
THE SUBSEQUENT DECISIONS OF THIS COURT.  IN THAT CASE, THE COURT LET
STAND A CONVICTION UNDER AN ALABAMA STATUTE FORBIDDING ADULTERY OR
FORNICATION BETWEEN A WHITE PERSON AND A NEGRO AND IMPOSING A GREATER
PENALTY THAN ALLOWED UNDER ANOTHER ALABAMA STATUTE OF GENERAL
APPLICATION AND PROSCRIBING THE SAME CONDUCT WHATEVER THE RACE OF THE
PARTICIPANTS.  THE OPINION ACKNOWLEDGED THAT THE PURPOSE OF THE EQUAL
PROTECTION CLAUSE "WAS TO PREVENT HOSTILE AND DISCRIMINATING STATE
LEGISLATION AGAINST ANY PERSON OR CLASS OF PERSONS" AND THAT EQUALITY
OF PROTECTION UNDER THE LAWS IMPLIES THAT ANY PERSON, "WHATEVER HIS
RACE  ..  SHHALL NOT BE SUBJECTED, FOR THE SAME OFFENCE, TO ANY GREATER
OR DIFFERENT PUNISHMENT."  106 U.S., AT 584.  BUT TAKING QUITE
LITERALLY ITS OWN WORDS, "FOR THE SAME OFFENCE", THE COURT POINTED OUT
THAT ALABAMA HAD DESIGNATED AS A SEPARATE OFFENSE THE COMMISSION BY A
WHITE PERSON AND A NEGRO OF THE IDENTICAL ACTS FORBIDDEN BY THE GENERAL
PROVISIONS.  THERE WAS, THEREFORE, NO IMPERMISSIBLE DISCRIMINATION
BECAUSE THE DIFFERENCE IN PUNISHMENT WAS "DIRECTED AGAINST THE OFFENCE
DESIGNATED" AND BECAUSE IN THE CASE OF EACH OFFENSE ALL WHO COMMITTED
IT, WHITE AND NEGRO, WERE TREATED ALIKE.  (FN7)  UNDER PACE THE ALABAMA
LAW REGULATING THE CONDUCT OF BOTH NEGROES AND WHITES SATISFIED THE
EQUAL PROTECTION CLAUSE SINCE IT APPLIED EQUALLY TO AND AMONG THE
MEMBERS OF THE CLASS WHICH IT REACHED WITHOUT REGARD TO THE FACT THAT
THE STATUTE DID NOT REACH OTHER TYPES OF COUPLES PERFORMING THE
IDENTICAL CONDUCT AND WITHOUT ANY NECESSITY TO JUSTIFY THE DIFFERENCE
IN PENALTY ESTABLISHED FOR THE TWO OFFENSES.  BECAUSE EACH OF THE
ALABAMA LAWS APPLIED EQUALLY TO THOSE TO WHOM IT WAS APPLICABLE, THE
DIFFERENT TREATMENT ACCORDED INTERRACIAL AND INTRARACIAL COUPLES WAS
IRRELEVANT.  (FN8) 

THIS NARROW VIEW OF THE EQUAL PROTECTION CLAUSE WAS SOON SWEPT AWAY. 
WHILE ACKNOWLEDGING THE CURRENCY OF THE VIEW THAT "IF THE LAW DEALS
ALIKE WITH ALL OF A CERTAIN CLASS" IT IS NOT OBNOXIOUS TO THE EQUAL
PROTECTION CLAUSE AND THAT "AS A GENERAL PROPOSITION, THIS IS
UNDENIABLY TRUE," THE COURT IN GULF, C.&S.F.R. CO. V. ELLIS, 165 U.S.
150, 155, SAID THAT IT  WAS "EQUALLY TRUE THAT SUCH CLASSIFICATION
CANNOT BE MADE ARBITRARILY  ..  .""  CLASSIFICATION "MUST ALWAYS REST
UPON SOME DIFFERENCE WHICH BEARS A REASONABLE AND JUST RELATION TO THE
ACT IN RESPECT TO WHICH THE CLASSIFICATION IS PROPOSED, AND CAN NEVER
BE MADE ARBITRARILY AND WITHOUT ANY SUCH BASIS."  IBID. "ARBITRARY
SELECTION CAN NEVER BE JUSTIFIED BY CALLING IT CLASSIFICATION."  ID.,
AT 159.  THIS APPROACH WAS CONFIRMED IN ATCHISON, T.&S.F.R. CO. V.
MATTHEWS, 174 U.S. 96, 104-105, AND IN NUMEROUS OTHER CASES.  (FN9)
SEE, E.G., AMERICAN SUGAR REF. CO. V. LOUISIANA, 179 U.S. 89, 92;
SOUTHERN R. CO. V. GREENE, 216 U.S. 400, 417; F.S. ROYSTER GUANO CO. V.
VIRGINIA, 253 U.S. 412, 415; AIR-WAY ELEC.  APPLIANCE CORP. V. DAY, 266
U.S. 71, 85; LOUISVILLE GAS & ELEC.  CO. V. COLEMAN, 277 U.S. 32, 37
39; HARTFORD STEAM BOILER INSPECTION & INS.  CO. V. HARRISON, 301 U.S.
459, 461-463; SKINNER V. OKLAHOMA EX REL. WILLIAMSON, 316 U.S. 535, 541
543; KOTCH V. PILOT COMM'RS, 330 U.S. 552, 556-557; HERNANDEZ V. TEXAS,
347 U.S. 475, 478; GRIFFIN V. ILLINOIS, 351 U.S. 12, 17-19 (OPINION OF
BLACK, J., ANNOUNCING JUDGMENT), 21-22 (FRANKFURTER, J., CONCURRING);
MOREY V. DOUD, 354 U.S. 457; 465-466; CENTRAL R. CO. V. PENNSYLVANIA,
370 U.S. 607, 617-618; DOUGLAS V. CALIFORNIA, 372 U.S. 353, 356-357. 

JUDICIAL INQUIRY UNDER THE EQUAL PROTECTION CLAUSE, THEREFORE, DOES
NOT END WITH A SHOWING OF EQUAL APPLICATION AMONG THE MEMBERS OF THE
CLASS DEFINED BY THE LEGISLATION.  THE COURTS MUST REACH AND DETERMINE
THE QUESTION WHETHER THE CLASSIFICATIONS DRAWN IN A STATUTE ARE
REASONABLE IN LIGHT OF ITS PURPOSE - IN THIS CASE, WHETHER THERE IS AN
ARBITRARY OR INVIDIOUS DISCRIMINATION BETWEEN THOSE CLASSES COVERED BY
FLORIDA'S COHABITATION LAW AND THOSE EXCLUDED.  THAT QUESTION IS WHAT
PACE IGNORED AND WHAT MUST BE FACED HERE. 

NORMALLY, THE WIDEST DISCRETION IS ALLOWED THE LEGISLATIVE JUDGMENT
IN DETERMINING WHETHER TO ATTACK SOME, RATHER THAN ALL, OF THE
MANIFESTATIONS OF THE EVIL AIMED AT; AND NORMALLY THAT JUDGMENT IS
GIVEN THE BENEFIT OF EVERY CONCEIVABLE CIRCUMSTANCE WHICH MIGHT SUFFICE
TO CHARACTERIZE THE CLASSIFICATION AS REASONABLE RATHER THAN ARBITRARY
AND INVIDIOUS.  SEE, E.G., MCGOWAN V. MARYLAND, 366 U.S. 420, 425-426;
TWO GUYS FROM HARRISON-ALLENTOWN, INC. V. MCGINLEY, 366 U.S. 582, 591
592; ALLIED STORES OF OHIO, INC. V. BOWERS, 358 U.S. 522, 528; RAILWAY
EXPRESS AGENCY, INC. V. NEW YORK, 336 U.S. 106, 110; LINDSLEY V.
NATURAL CARBONIC GAS CO., 220 U.S. 61, 78-79.  BUT WE DEAL HERE WITH
CLASSIFICATION BASED UPON THE RACE OF THE PARTICIPANTS, WHICH MUST BE
VIEWED IN LIGHT OF THE HISTORICAL FACT THAT THE CENTRAL PURPOSE OF THE
FOURTEENTH AMENDMENT WAS TO ELIMINATE RACIAL DISCRIMINATION EMANATING
FROM OFFICIAL SOURCES IN THE STATES.  THIS STRONG POLICY RENDERS RACIAL
CLASSIFICATIONS "CONSTITUTIONALLY SUSPECT," BOLLING V. SHARPE, 347 U.S.
497, 499; AND SUBJECT TO THE "MOST RIGID SCRUTINY," KOREMATSO V. UNITED
STATES, 323 U.S. 214, 216; AND "IN MOST CIRCUMSTANCES IRRELEVANT" TO
ANY CONSTITUTIONALLY ACCEPTABLE LEGISLATIVE PURPOSE, HIRABAYASHI V.
UNITED STATES, 320 U.S. 81, 100..  THUS IT IS THAT RACIAL
CLASSIFICATIONS HAVE BEEN HELD INVALID IN A VARIETY OF CONTEXTS.  SEE,
E.G., VIRGINIA BOARD OF ELECTIONS V. HAMM, 379 U.S. 19 (DESIGNATION OF
RACE IN VOTING AND PROPERTY RECORDS); ANDERSON V. MARTIN 375 U.S. 399
(DESIGNATION OF RACE ON NOMINATION PAPERS AND BALLOTS); WATSON V. CITY
OF MEMPHIS, 373 U.S. 526 (SEGREGATION IN PUBLIC PARKS AND PLAYGROUNDS);
BROWN V. BOARD OF EDUCATION, 349 U.S. 294 (SEGREGATION IN PUBLIC
SCHOOLS). 

WE DEAL HERE WITH A RACIAL CLASSIFICATION EMBODIED IN A CRIMINAL
STATUTE.  IN THIS CONTEXT, WHERE THE POWER OF THE STATE WEIGHS MOST
HEAVILY UPON THE INDIVIDUAL OR THE GROUP, WE MUST BE ESPECIALLY
SENSITIVE TO THE POLICIES OF THE EQUAL PROTECTION CLAUSE WHICH, AS
REFLECTED IN CONGRESSIONAL ENACTMENTS DATING FROM 1870, WERE INTENDED
TO SECURE "THE FULL AND EQUAL BENEFIT OF ALL LAWS AND PROCEEDINGS FOR
THE SECURITY OF PERSONS AND PROPERTY" AND TO SUBJECT ALL PERSONS "TO
LIKE PUNISHMENT, PAINS, PENALTIES, TAXES, LICENSES, AND EXACTIONS OF
EVERY KIND, AND TO NO OTHER."  R.S. SEC. 1977, 42 U.S.C.  SEC. 1981
(1958 ED.). 

OUR INQUIRY, THEREFORE, IS WHETHER THERE CLEARLY APPEARS IN THE
RELEVANT MATERIALS SOME OVERRIDING STATUTORY PURPOSE REQUIRING THE
PROSCRIPTION OF THE SPECIFIED CONDUCT WHEN ENGAGED IN BY A WHITE PERSON
AND A NEGRO, BUT NOT OTHERWISE.  WITHOUT SUCH JUSTIFICATION THE RACIAL
CLASSIFICATION CONTAINED IN SEC. 798.05 IS REDUCED TO AN INVIDIOUS
DISCRIMINATION FORBIDDEN BY THE EQUAL PROTECTION CLAUSE. 

THE FLORIDA SUPREME COURT, RELYING UPON PACE V. ALABAMA, SUPRA, FOUND
NO LEGAL DISCRIMINATION AT ALL AND GAVE NO CONSIDERATION TO STATUTORY
PURPOSE.  THE STATE IN ITS BRIEF IN THIS COURT, HOWEVER, SAYS THAT THE
LEGISLATIVE PURPOSE OF SEC. 798.05, LIKE THE OTHER SECTIONS OF CHAPTER
798, WAS TO PREVENT BREACHES OF THE BASIC CONCEPTS OF SEXUAL DECENCY;
(FN10) AND WE SEE NO REASON TO QUARREL WITH THE STATE'S
CHARACTERIZATION OF THIS STATUTE, DEALING AS IT DOES WITH ILLICIT
EXTRAMARITAL AND PREMARITAL PROMISCUITY. 

WE FIND NOTHING IN THIS SUGGESTED LEGISLATIVE PURPOSE, HOWEVER, WHICH
MAKES IT ESSENTIAL TO PUNISH PROMISCUITY OF ONE RACIAL GROUP AND NOT
THAT OF ANOTHER.  THERE IS NO SUGGESTION THAT A WHITE PERSON AND A
NEGRO ARE ANY MORE LIKELY HABITUALLY TO OCCUPY THE SAME ROOM TOGETHER
THAN THE WHITE OR THE NEGRO COUPLE OR TO ENGAGE IN ILLICIT INTERCOURSE
IF THEY DO.  SECTIONS 798.01-798.05 INDICATE NO LEGISLATIVE CONVICTION
THAT PROMISCUITY BY THE INTERRACIAL COUPLE PRESENTS ANY PARTICULAR
PROBLEMS REQUIRING SEPARATE OR DIFFERENT TREATMENT IF THE SUGGESTED
OVER-ALL POLICY OF THE CHAPTER IS TO BE ADEQUATELY SERVED.  SECTIONS
798.01-798.03 DEAL WITH ADULTERY, LEWD COHABITATION AND FORNICATION, IN
THAT ORDER.  ALL ARE OF GENERAL APPLICATION.  SECTION 798.04 PROHIBITS
A WHITE AND A NEGRO FROM LIVING IN A STATE OF ADULTERY OR FORNICATION
AND IMPOSES A LESSER PERIOD OF IMPRISONMENT THAN DOES EITHER SEC.
798.01 OR SEC. 798.02, EACH OF WHICH IS APPLICABLE TO ALL PERSONS. 
SIMPLE FORNICATION BY THE INTERRACIAL COUPLE IS COVERED ONLY BY THE
GENERAL PROVISION OF SEC.  798.03.  THIS IS NOT, THEREFORE, A CASE
WHERE THE CLASS DEFINED IN THE LAW IS THAT FROM WHICH "THE EVIL MAINLY
IS TO BE FEARED," PATSONE V. PENNSYLVANIA, 232 U.S. 138, 144; OR WHERE
THE "EVILS IN THE SAME FIELD MAY BE OF DIFFERENT DIMENSIONS AND
PROPORTIONS, REQUIRING DIFFERENT REMEDIES," WILLIAMSON V. LEE OPTICAL
CO., 348 U.S. 483, 489; OR EVEN ONE WHERE THE STATE HAS DONE AS MUCH AS
IT CAN AS FAST AS IT CAN, BUCK V. BELL, 274 U.S. 200, 208.  THAT A
GENERAL EVIL WILL BE PARTIALLY CORRECTED MAY AT TIMES, AND WITHOUT
MORE, SERVE TO JUSTIFY THE LIMITED APPLICATION OF A CRIMINAL LAW; BUT
LEGISLATIVE DISCRETION TO EMPLOY THE PIECEMEAL APPROACH STOPS SHORT OF
PERMITTING A STATE TO NARROW STATUTORY COVERAGE TO FOCUS ON A RACIAL
GROUP.  SUCH CLASSIFICATIONS BEAR A FAR HEAVIER BURDEN OF
JUSTIFICATION.  "WHEN THE LAW LAYS AN UNEQUAL HAND ON THOSE WHO HAVE
COMMITTED INTRINSICALLY THE SAME QUALITY OF OFFENSE AND STERILIZES ONE
AND NOT THE OTHER, IT HAS MADE AS INVIDIOUS A DISCRIMINATION AS IF IT
HAD SELECTED A PARTICULAR RACE OR NATIONALITY FOR OPPRESSIVE
TREATMENT.  YICK WO V. HOPKINS (118 U.S. 356); GAINES V. CANADA, 305
U.S. 337."  SKINNER V. OKLAHOMA EX REL.  WILLIAMSON, 316 U.S. 535,
541.  (FN11)                                              II. 

FLORIDA'S REMAINING ARGUMENT IS RELATED TO ITS LAW AGAINST
INTERRACIAL MARRIAGE, FLA.  STAT. ANN. SEC. 741.11, (FN12) WHICH, IN
THE LIGHT OF CERTAIN LEGISLATIVE HISTORY OF THE FOURTEENTH AMENDMENT,
IS SAID TO BE IMMUNE FROM ATTACK UNDER THE EQUAL PROTECTION CLAUSE. 
ITS INTERRACIAL COHABITATION LAW, SEC. 798.05, IS LIKEWISE VALID, IT IS
ARGUED, BECAUSE IT IS ANCILLARY TO AND SERVES THE SAME PURPOSE AS THE
MISCEGENATION LAW ITSELF. 

WE REJECT THIS ARGUMENT, WITHOUT REACHING THE QUESTION OF THE
VALIDITY OF THE STATE'S PROHIBITION AGAINST INTERRACIAL MARRIAGE OR THE
SOUNDNESS OF THE ARGUMENTS ROOTED IN THE HISTORY OF THE AMENDMENT.  FOR
EVEN IF WE POSIT THE CONSTITUTIONALITY OF THE BAN AGAINST THE MARRIAGE
OF A NEGRO AND A WHITE, IT DOES NOT FOLLOW THAT THE COHABITATION LAW IS
NOT TO BE SUBJECTED TO INDEPENDENT EXAMINATION UNDER THE FOURTEENTH
AMENDMENT.  "ASSUMING, FOR PURPOSES OF ARGUMENT ONLY, THAT THE BASIC
PROHIBITION IS CONSTITUTIONAL," IN THIS CASE THE LAW AGAINST
INTERRACIAL MARRIAGE, "IT DOES NOT FOLLOW THAT THERE IS NO
CONSTITUTIONAL LIMIT TO THE MEANS WHICH MAY BE USED TO ENFORCE IT "
OYAMA V. CALIFORNIA, 332 U.S. 633, 646-647.  SEE ALSO BUCHANAN V.
WARLEY, 245 U.S. 60, 81.  SECTION 798.05 MUST THEREFORE ITSELF PASS
MUSTER UNDER THE FOURTEENTH AMENDMENT; AND FOR REASONS QUITE SIMILAR TO
THOSE ALREADY GIVEN, WE THINK IT FAILS THE TEST. 

THERE IS INVOLVED HERE AN EXERCISE OF THE STATE POLICE POWER WHICH
TRENCHES UPON THE CONSTITUTIONALLY PROTECTED FREEDOM FROM INVIDIOUS
OFFICIAL DISCRIMINATION BASED ON RACE.  SUCH A LAW, EVEN THOUGH ENACTED
PURSUANT TO A VALID STATE INTEREST, BEARS A HEAVY BURDEN OF
JUSTIFICATION, AS WE HAVE SAID, AND WILL BE UPHELD ONLY IF IT IS
NECESSARY, AND NOT MERELY RATIONALLY RELATED, TO THE ACCOMPLISHMENT OF
A PERMISSIBLE STATE POLICY.  SEE THE CASES CITED, SUPRA, P. 192.  THOSE
PROVISIONS OF CHAPTER 798 WHICH ARE NEUTRAL AS TO RACE EXPRESS A
GENERAL AND STRONG STATE POLICY AGAINST PROMISCUOUS CONDUCT, WHETHER
ENGAGED IN BY THOSE WHO ARE MARRIED, THOSE WHO MAY MARRY OR THOSE WHO
MAY NOT.  THESE PROVISIONS, IF ENFORCED, WOULD REACH ILLICIT RELATIONS
OF ANY KIND AND IN THIS WAY PROTECT THE INTEGRITY OF THE MARRIAGE LAWS
OF THE STATE, INCLUDING WHAT IS CLAIMED TO BE A VALID BAN ON
INTERRACIAL MARRIAGE.  THESE SAME PROVISIONS, MOREOVER, PUNISH
PREMARITAL SEXUAL RELATIONS AS SEVERELY OR MORE SEVERELY IN SOME
INSTANCES THAN DO THOSE PROVISIONS WHICH FOCUS ON THE INTERRACIAL
COUPLE.  FLORIDA HAS OFFERED NO ARGUMENT THAT THE STATE'S POLICY
AGAINST INTERRACIAL MARRIAGE CANNOT BE AS ADEQUATELY SERVED BY THE
GENERAL, NEUTRAL, AND EXISTING BAN ON ILLICIT BEHAVIOR AS BY A
PROVISION SUCH AS SEC. 798.05 WHICH SINGLES OUT THE PROMISCUOUS
INTERRACIAL COUPLE FOR SPECIAL STATUTORY TREATMENT.  IN SHORT, IT HAS
NOT BEEN SHOWN THAT SEC. 798.05 IS A NECESSARY ADJUNCT TO THE STATE'S
BAN ON INTERRACIAL MARRIAGE.  WE ACCORDINGLY INVALIDATE SEC. 798.05
WITHOUT EXPRESSING ANY VIEWS ABOUT THE STATE'S PROHIBITION OF
INTERRACIAL MARRIAGE, AND REVERSE THESE CONVICTIONS.  REVERSED. 

FN1  FLA. STAT. ANN. SEC. 798.01 - LIVING IN OPEN ADULTERY: 

"WHOEVER LIVES IN AN OPEN STATE OF ADULTERY SHALL BE PUNISHED BY
IMPRISONMENT IN THE STATE PRISON NOT EXCEEDING TWO YEARS, OR IN THE
COUNTY JAIL NOT EXCEEDING ONE YEAR, OR BY FINE NOT EXCEEDING FIVE
HUNDRED DOLLARS.  WHERE EITHER OF THE PARTIES LIVING IN AN OPEN STATE
OF ADULTERY IS MARRIED, BOTH PARTIES SO LIVING SHALL BE DEEMED TO BE
GUILTY OF THE OFFENSE PROVIDED FOR IN THIS SECTION." 

FLA. STAT. ANN. SEC. 798.02 - LEWD AND LASCIVIOUS BEHAVIOR: 

"IF ANY MAN AND WOMAN, NOT BEING MARRIED TO EACH OTHER, LEWDLY AND
LASCIVIOUSLY ASSOCIATE AND COHABIT TOGETHER, OR IF ANY MAN OR WOMAN,
MARRIED OR UNMARRIED, IS GUILTY OF OPEN AND GROSS LEWDNESS AND
LASCIVIOUS BEHAVIOR, THEY SHALL BE PUNISHED BY IMPRISONMENT IN THE
STATE PRISON NOT EXCEEDING TWO YEARS, OR IN THE COUNTY JAIL NOT
EXCEEDING ONE YEAR, OR BY FINE NOT EXCEEDING THREE HUNDRED DOLLARS." 

FLA. STAT. ANN. SEC. 798.03 - FORNICATION: 

"IF ANY MAN COMMITS FORNICATION WITH A WOMAN, EACH OF THEM SHALL BE
PUNISHED BY IMPRISONMENT NOT EXCEEDING THREE MONTHS, OR BY FINE NOT
EXCEEDING THIRTY DOLLARS." 

FLA. STAT. ANN. SEC. 798.04 - WHITE PERSONS AND NEGROES LIVING IN
ADULTERY: 

"IF ANY WHITE PERSON AND NEGRO, OR MULATTO, SHALL LIVE IN ADULTERY OR
FORNICATION WITH EACH OTHER, EACH SHALL BE PUNISHED BY IMPRISONMENT NOT
EXCEEDING TWELVE MONTHS, OR BY FINE NOT EXCEEDING ONE THOUSAND
DOLLARS." 

FLA. STAT. ANN. SEC. 798.05 - NEGRO MAN AND WHITE WOMAN OR WHITE MAN
AND NEGRO WOMAN OCCUPYING SAME ROOM: "ANY NEGRO MAN AND WHITE WOMAN, OR
ANY WHITE MAN AND NEGRO WOMAN, WHO ARE NOT MARRIED TO EACH OTHER, WHO
SHALL HABITUALLY LIVE IN AND OCCUPY IN THE NIGHTTIME THE SAME ROOM
SHALL EACH BE PUNISHED BY IMPRISONMENT NOT EXCEEDING TWELVE MONTHS, OR
BY FINE NOT EXCEEDING FIVE HUNDRED DOLLARS." 

FN2  SECTION 798.02 PROSCRIBES TWO OFFENSES:  (1) OPEN AND GROSS
LEWDNESS AND LASCIVIOUS BEHAVIOR BY EITHER A MAN OR A WOMAN; (2) LEWD
AND LASCIVIOUS ASSOCIATION AND COHABITATION BY A MAN AND WOMAN.   THE
LATTER OFFENSE IS IDENTICAL TO THAT PROSCRIBED BY SEC. 798.01, EXCEPT
THAT SEC. 798.01 CONTAINS THE ADDITIONAL REQUIREMENT THAT ONE OF THE
PARTICIPANTS BE MARRIED TO A THIRD PARTY.  CONVICTION UNDER EITHER
MAINTAINED SEXUAL RELATIONS OVER A PERIOD OF TIME AS IN THE CONJUGAL
RELATION BETWEEN HUSBAND AND WIFE.  BRASWELL V. STATE, 88 FLA. 183, 101
SO. 232 (1924), LOCKHART V. STATE, 79 FLA. 824, 85 SO. 153 (1920)(BOTH
CASES INVOLVING WHAT IS NOW SEC. 798.01); WILDMAN V. STATE, 157 FLA.
334, 25 SO. 2D 808 (1946), PENTON V. STATE, 42 FLA. 560, 28 SO. 774
(1900)(CASES INVOLVING, RESPECTIVELY, SEC. 798.02 AND WHAT IS NOW THAT
STATUTE). 

FN3  UNLIKE ALL THE OTHER SECTIONS OF CHAPTER 798, SEC. 798.03 DOES
NOT RELATE ONLY TO HABITUAL CONDUCT.  IT PROSCRIBES SINGLE AND
OCCASIONAL ACTS OF FORNICATION.  SEE COLLINS V. STATE, 83 FLA. 458, 92
SO. 681 (1922). 

FN4  WE HAVE NOT FOUND ANY DECISIONS CONSTRUING SEC. 798.04.  ITS
OPERATIVE LANGUAGE, "LIVE IN ADULTERY OR FORNICATION," IS SUBSTANTIALLY
IDENTICAL TO THE PHRASE "LIVES IN AN OPEN STATE OF ADULTERY" IN SEC.
798.01, WHICH HAS BEEN CONSTRUED TO MEAN HABITUAL CONDUCT.  THAT
LANGUAGE SHARPLY CONTRASTS WITH THE PHRASE "COMMITS FORNICATION" IN
SEC. 798.03, WHICH PROSCRIBES CASUAL ACTS OF FORNICATION.  TEXTUAL
ANALYSIS THEREFORE LEADS US TO CONCLUDE THAT THE FLORIDA COURTS WOULD
GIVE SEC. 798.04 A SIMILAR CONSTRUCTION TO THAT ACCORDED SECS.  798.01
AND 798.02.  THIS CONCLUSION THAT SEC. 798.04 IS DUPLICATIVE OF OTHER
PROVISIONS IS CONSISTENT WITH THE APPARENT LACK OF PROSECUTIONS UNDER
SEC. 798.04. 

FN5  PARRAMORE V. STATE, 81 FLA. 621, 88 SO. 472 (1921).  COMPARE
NOTE 2, SUPRA. 

FN6  APPELLANTS PRESENT TWO OTHER CONTENTIONS WHICH IT IS UNNECESSARY
FOR US TO CONSIDER IN VIEW OF OUR DISPOSITION OF THEIR PRINCIPAL
CLAIM.  FIRST, THEY CHALLENGE THE CONSTITUTIONALITY OF FLA. STAT. ANN.
SEC. 741.11 - MARRIAGES BETWEEN WHITE AND NEGRO PERSONS PROHIBITED: 

"IT IS UNLAWFUL FOR ANY WHITE MALE PERSON RESIDING OR BEING IN THIS
STATE TO INTERMARRY WITH ANY NEGRO FEMALE PERSON; AND IT IS IN LIKE
MANNER UNLAWFUL FOR ANY WHITE FEMALE PERSON RESIDING OR BEING IN THIS
STATE TO INTERMARRY WITH ANY NEGRO MALE PERSON; AND EVERY MARRIAGE
FORMED OR SOLEMNIZED IN CONTRAVENTION OF THE PROVISIONS OF THIS SECTION
SHALL BE UTTERLY NULL AND VOID  ..  ."" 

THE BASIS FOR APPELLANTS' COMPLAINT REGARDING THIS STATUTE IS THAT IN
CHARGING THE JURY WITH RESPECT TO APPELLANTS' DEFENSE OF COMMON-LAW
MARRIAGE THE TRIAL JUDGE STATED, WITHOUT OBJECTION BY APPELLANTS, THAT
BECAUSE OF SEC. 741.11 IT WOULD HAVE BEEN UNLAWFUL FOR APPELLANTS TO
HAVE ENTERED INTO A COMMON-LAW MARRIAGE IN FLORIDA.  APPELLANTS CONTEND
THAT THIS APPLICATION OF THE MARRIAGE STATUTE WAS A DENIAL OF DUE
PROCESS AND EQUAL PROTECTION SECURED BY THE FOURTEENTH AMENDMENT. 

APPELLANTS' FINAL CLAIM IS THAT THEIR CONVICTIONS VIOLATED DUE
PROCESS EITHER BECAUSE THERE WAS NO PROOF OF APPELLANT MCLAUGHLIN'S
RACE OR BECAUSE THE FLORIDA DEFINITION OF "NEGRO" IS UNCONSTITUTIONALLY
VAGUE.  FLA. STAT. ANN. SEC. 1.01(6) PROVIDES:  "THE WORDS 'NEGRO,'
'COLORED,' 'COLORED PERSONS,' 'MULATTO' OR 'PERSONS OF COLOR,' WHEN
APPLIED TO PERSONS, INCLUDE EVERY PERSON HAVING ONE-EIGHTH OR MORE OF
AFRICAN OR NEGRO BLOOD."  AT THE TRIAL ONE OF THE ARRESTING OFFICERS
WAS PERMITTED, OVER OBJECTION, TO STATE HIS CONCLUSION AS TO THE RACE
OF EACH APPELLANT BASED ON HIS OBSERVATION OF THEIR PHYSICAL
APPEARANCE.  APPELLANTS CLAIM THAT THE STATUTORY DEFINITION IS CIRCULAR
IN THAT IT PROVIDES NO INDEPENDENT MEANS OF DETERMINING THE RACE OF A
DEFENDANT'S ANCESTORS AND THAT TESTIMONY BASED ON APPEARANCE IS
IMPERMISSIBLE BECAUSE NOT RELATED TO ANY OBJECTIVE STANDARD.  FLORIDA
ARGUES THAT UNDER FLORIDA APPELLATE PROCEDURE THIS CLAIM WAS ABANDONED
WHEN THE APPELLANTS FAILED TO ARGUE IT IN THE BRIEF THEY PRESENTED TO
THE FLORIDA SUPREME COURT. 

FN7  "THE DEFECT IN THE ARGUMENT OF COUNSEL CONSISTS IN HIS
ASSUMPTION THAT ANY DISCRIMINATION IS MADE BY THE LAWS OF ALABAMA IN
THE PUNISHMENT PROVIDED FOR THE OFFENCE FOR WHICH THE PLAINTIFF IN
ERROR WAS INDICTED WHEN COMMITTED BY A PERSON OF THE AFRICAN RACE AND
WHEN COMMITTED BY A WHITE PERSON.  THE TWO SECTIONS OF THE CODE CITED
ARE ENTIRELY CONSISTENT.  THE ONE PRESCRIBES, GENERALLY, A PUNISHMENT
FOR AN OFFENCE COMMITTED BETWEEN PERSONS OF DIFFERENT SEXES; THE OTHER
PRESCRIBES A PUNISHMENT FOR AN OFFENCE WHICH CAN ONLY BE COMMITTED
WHERE THE TWO SEXES ARE OF DIFFERENT RACES.  THERE IS IN NEITHER
INCLUDES THE OFFENCE WHEN THE PERSONS OF THE TWO SEXES ARE BOTH WHITE
AND WHEN THEY ARE BOTH BLACK.  SECT.  4189 APPLIES THE SAME PUNISHMENT
TO BOTH OFFENDERS, THE WHITE AND THE BLACK.  INDEED, THE OFFENCE
AGAINST WHICH THIS LATTER SECTION IS AIMED CANNOT BE COMMITTED WITHOUT
INVOLVING THE PERSONS OF BOTH RACES IN THE SAME PUNISHMENT.  WHATEVER
DISCRIMINATION IS MADE IN THE PUNISHMENT PRESCRIBED IN THE TWO SECTIONS
IS DIRECTED AGAINST THE OFFENCE DESIGNATED AND NOT AGAINST THE PERSON
OF ANY PARTICULAR COLOR OR RACE.  THE PUNISHMENT OF EACH OFFENDING
PERSON, WHETHER WHITE OR BLACK, IS THE SAME "  106 U.S., AT 585. 

FN8  HAD THE COURT BEEN PRESENTED WITH A STATUTE THAT, FOR EXAMPLE,
PROHIBITED ANY NEGRO MALE FROM HAVING CARNAL KNOWLEDGE OF A WHITE
FEMALE AND PENALIZED ONLY THE NEGRO, SUCH A STATUTE WOULD
UNQUESTIONABLY HAVE BEEN HELD TO DENY EQUAL PROTECTION EVEN THOUGH IT
APPLIED EQUALLY TO ALL TO WHOM IT APPLIED.  SEE STRAUDER V. WEST
VIRGINIA, 100 U.S. 303, 306-308; HO OH KOW V. NUNAN, 12 FED. CAS. 252
(NO. 6546)(C.C.D. CAL. 1879)(FIELD, J.)  ("CHINESE PIGTAIL" CASE). 
BECAUSE OF THE MANIFEST INADEQUACY OF ANY APPROACH REQUIRING ONLY EQUAL
APPLICATION TO THE CLASS DEFINED IN THE STATUTE, ONE MAY CONCLUDE THAT
IN PACE THE COURT ACTUALLY RULED SUB SILENTIO THAT THE DIFFERENT
TREATMENT METED OUT TO INTERRACIAL AND INTRARACIAL COUPLES WAS BASED ON
A REASONABLE LEGISLATIVE PURPOSE.  IF THE COURT DID REACH THAT
CONCLUSION IT FAILED TO ARTICULATE IT OR TO GIVE ITS REASONS, AND FOR
THE REASONS STATED INFRA WE REJECT THE CONTENTION PRESENTED HERE THAT
THE CRIMINAL STATUTE PRESENTLY UNDER REVIEW IS GROUNDED IN A REASONABLE
LEGISLATIVE POLICY. 

FN9  THE PACE HOLDING ITSELF MAY HAVE UNDERGONE SOME MODIFICATION
WHEN THE COURT A FEW YEARS LATER CITED IT FOR THE PROPOSITION "THAT A
DIFFERENT PUNISHMENT FOR THE SAME OFFENCE MAY BE INFLICTED UNDER
PARTICULAR CIRCUMSTANCES, PROVIDED IT IS DEALT OUT TO ALL ALIKE WHO ARE
SIMILARLY SITUATED."  MOORE V. MISSOURI, 159 U.S. 673, 678. 

FN10  "SECTION 798.05, FLORIDA STATUTES, UNDER WHICH THE DEFENDANTS
WERE CHARGED, SIMPLY PROHIBITS HABITUAL COHABITING OF THE SAME ROOM BY
MEMBERS OF OPPOSITE RACES WHO ARE ALSO MEMBERS OF OPPOSITE SEXES.  THE
TERMS OF SECTION 798.05, SUPRA, EXPLICITLY SEEK TO AVOID CIRCUMSTANCES
WHEREIN THERE ARE HIGH POTENTIALS OF SEXUAL ENGAGEMENT  ..  .   SECTION
798.02, FLORIDA STATUTES, WHICH PROHIBITS INTRARACIAL LEWD
COHABITATION, HAS GENERALLY BEEN INTERPRETED AS REQUIRING THE
ADDITIONAL ELEMENT OF SEXUAL OCCURRENCE AS DISTINGUISHED FROM THE
PROVISIONS OF SECTION 798.05, SUPRA, WHICH ONLY REQUIRE A HIGH
POTENTIAL OF SUCH OCCURRENCE.  THE LEGISLATIVE PURPOSE IN ENACTING BOTH
OCCURRENCES  ..  .   THE PURPOSE OF THE LEGISLATURE IN ENACTING BOTH
BREACHES OF BASIC CONCEPTS OF SEXUAL DECENCY WHETHER COMMITTED BY
INTERRACIAL OR INTRARACIAL PARTIES."  BRIEF FOR APPELLEE, 55-56. 

FN11  IN THE SKINNER CASE THE COURT INVALIDATED ON EQUAL-PROTECTION
GROUNDS OKLAHAMA'S LAW PROVIDING FOR THE STERILIZATION OF MULTIPLE
OFFENDERS BUT EXEMPTING OFFENSES ARISING OUT OF THE PROHIBITION LAWS,
THE REVENUE ACTS, EMBEZZLEMENT OR POLITICAL OFFENSES.  THE COURT SAID: 

"OKLAHOMA MAKES NO ATTEMPT TO SAY THAT HE WHO COMMITS LARCENY BY
TRESPASS OR TRICK OR FRAUD HAS BIOLOGICALLY INHERITABLE TRAITS WHICH HE
WHO COMMITS EMBEZZLEMENT LACKS.  OKLAHOMA'S LINE BETWEEN LARCENY BY
FRAUD AND EMBEZZLEMENT IS DETERMINED, AS WE HAVE NOTED, 'WITH REFERENCE
TO THE TIME WHEN THE FRAUDULENT INTENT TO CONVERT THE PROPERTY TO THE
TAKER'S OWN USE' ARISES.  RILEY V. STATE, SUPRA, 64 OKLA. CR. AT P.
189, 78 P.2D P. 715.  WE HAVE NOT THE SLIGHTEST BASIS FOR INFERRING
THAT THAT LINE HAS ANY SIGNIFICANCE IN EUGENICS, NOR THAT THE
INHERITABILITY OF CRIMINAL TRAITS FOLLOWS THE NEAT LEGAL DISTINCTIONS
WHICH THE LAW HAS MARKED BETWEEN THOSE TWO OFFENSES.  IN TERMS OF FINES
AND IMPRISONMENT, THE CRIMES OF LARCENY AND EMBEZZLEMENT RATE THE SAME
UNDER THE OKLAHOMA CODE.  ONLY WHEN IT COMES TO STERILIZATION ARE THE
PAINS AND PENALTIES OF THE LAW DIFFERENT.  THE EQUAL PROTECTION CLAUSE
WOULD INDEED BE A FORMULA OF EMPTY WORDS IF SUCH CONSPICUOUSLY
ARTIFICIAL LINES COULD BE DRAWN."  316 U.S., AT 541-542.    FN12  SEE
NOTE 6, SUPRA.  SEE ALSO FLA. CONST., ART. 16, SEC. 24. 

MR. JUSTICE HARLAN, CONCURRING. 

I JOIN THE COURT'S OPINION WITH THE FOLLOWING COMMENTS. 

I AGREE WITH THE COURT THAT THE COHABITATION STATUTE HAS NOT BEEN
SHOWN TO BE NECESSARY TO THE INTEGRITY OF THE ANTIMARRIAGE LAW, ASSUMED
ARGUENDO TO BE VALID, AND THAT NECESSITY, NOT MERE REASONABLE
RELATIONSHIP, IS THE PROPER TEST, SEE ANTE, PP. 195-196.  NAACP V.
ALABAMA, 377 U.S. 288, 307-308; SAIA V. NEW YORK, 334 U.S. 558, 562;
MARTIN V. STRUTHERS, 319 U.S. 141, 147; THORNHILL V. ALABAMA, 310 U.S.
88, 96; SCHNEIDER V. STATE, 308 U.S. 147, 161, 162, 164; SEE MCGOWAN V.
MARYLAND, 366 U.S. 420, 466-467 (FRANKFURTER, J., CONCURRING). 

THE FACT THAT THESE CASES AROSE UNDER THE PRINCIPLES OF THE FIRST
AMENDMENT DOES NOT MAKE THEM INAPPLICABLE HERE.  PRINCIPLES OF FREE
SPEECH ARE CARRIED TO THE STATES ONLY THROUGH THE FOURTEENTH
AMENDMENT.  THE NECESSITY TEST WHICH DEVELOPED TO PROTECT FREE SPEECH
AGAINST STATE INFRINGEMENT SHOULD BE EQUALLY APPLICABLE IN A CASE
INVOLVING STATE RACIAL DISCRIMINATION - PROHIBITION OF WHICH LIES AT
THE VERY HEART OF THE FOURTEENTH AMENDMENT.  NOR DOES THE FACT THAT
THESE CASES ALL INVOLVED WHAT THE COURT DEEMED TO BE A CONSTITUTIONALLY
EXCESSIVE EXERCISE OF LEGISLATIVE POWER RELATING TO A SINGLE STATE
POLICY, WHEREAS THIS CASE INVOLVES TWO LEGISLATIVE POLICIES -
PREVENTION OF EXTRAMARITAL RELATIONS AND PREVENTION OF MISCEGENATION -
EFFECTUATED BY SEPARATE STATUTES, SERVE TO VITIATE THE SOUNDNESS OF THE
COURT'S CONCLUSION THAT THE VALIDITY OF THE STATE'S ANTIMARRIAGE LAW
NEED NOT BE DECIDED IN THIS CASE.  IF THE LEGITIMACY OF THE
COHABITATION STATUTE IS CONSIDERED TO DEPEND UPON ITS BEING ANCILLARY
TO THE ANTIMARRIAGE STATUTE, THE FORMER MUST BE DEEMED "UNNECESSARY"
UNDER THE PRINCIPLE ESTABLISHED BY THE CITED CASES IN LIGHT OF THE
NONDISCRIMINATORY EXTRAMARITAL RELATIONS STATUTES.  IF, HOWEVER, THE
INTERRACIAL COHABITATION STATUTE IS CONSIDERED TO REST UPON A DISCRETE
STATE INTEREST, EXISTING INDEPENDENTLY OF THE ANTIMARRIAGE LAW, IT
FALLS OF ITS OWN WEIGHT. 

MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE DOUGLAS JOINS,
CONCURRING. 

I CONCUR IN THE JUDGMENT AND AGREE WITH MOST OF WHAT IS SAID IN THE
COURT'S OPINION.  BUT THE COURT IMPLIES THAT A CRIMINAL LAW OF THE KIND
HERE INVOLVED MIGHT BE CONSTITUTIONALLY VALID IF A STATE COULD SHOW
"SOME OVERRIDING STATUTORY PURPOSE."  THIS IS AN IMPLICATION IN WHICH I
CANNOT JOIN, BECAUSE I CANNOT CONCEIVE OF A VALID LEGISLATIVE PURPOSE
UNDER OUR CONSTITUTION FOR A STATE LAW WHICH MAKES THE COLOR OF A
PERSON'S SKIN THE TEST OF WHETHER HIS CONDUCT IS A CRIMINAL OFFENSE. 
THESE APPELLANTS WERE CONVICTED, FINED, AND IMPRISONED UNDER A STATUTE
WHICH MADE THEIR CONDUCT CRIMINAL ONLY BECAUSE THEY WERE OF DIFFERENT
RACES.  SO FAR AS THIS STATUTE GOES, THEIR CONDUCT WOULD NOT HAVE BEEN
ILLEGAL HAD THEY BOTH BEEN WHITE, OR BOTH NEGROES.  THERE MIGHT BE
LIMITED ROOM UNDER THE EQUAL PROTECTION CLAUSE FOR A CIVIL LAW
REQUIRING THE KEEPING OF RACIALLY SEGREGATED PUBLIC RECORDS FOR
STATISTICAL OR OTHER VALID PUBLIC PURPOSES.  CF. TANCIL V. WOOLLS,
ANTE, AT 19.  BUT WE DEAL HERE WITH A CRIMINAL LAW WHICH IMPOSES
CRIMINAL PUNISHMENT.  AND I THINK IT IS SIMPLY NOT POSSIBLE FOR A STATE
LAW TO BE VALID UNDER OUR CONSTITUTION WHICH MAKES THE CRIMINALITY OF
AN ACT DEPEND UPON THE RACE OF THE ACTOR.  DISCRIMINATION OF THAT KIND
IS INVIDIOUS PER SE.* 

*SINCE I THINK THIS CRIMINAL LAW IS CLEARLY INVALID UNDER THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, I DO NOT CONSIDER THE
IMPACT OF THE DUE PROCESS CLAUSE OF THAT AMENDMENT, NOR OF THE
THIRTEENTH AND FIFTEENTH AMENDMENTS. 

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{Page 712 of 52}
OPINION (the Court in bank)
TRAYNOR, J.

In this proceeding in mandamus, petitioners seek to compel the
County Clerk of Los Angeles County to issue them a certificate of
registry (Civ. Code, § 69a) and a license to marry.  (Civ. Code,
§ 69.)  In the application for a license, petitioner Andrea Perez
states that she is a white person and petitioner Sylvester Davis
that he is a Negro.  Respondent refuses to issue the certificate and
license, invoking Civil Code, section 69, which provides:  "... no
license may be issued authorizing the marriage of a white person
with a Negro, mulatto, Mongolian or member of the Malay race."

Civil Code, section 69, implements Civil Code, section 60, which
provides: "All marriages of white persons with negroes, Mongolians,
members of the Malay race, or mulattoes are illegal and void."  This
section originally appeared in the Civil Code in 1872, but at that
time it prohibited marriages only between white persons and Negroes
or mulattoes.  It {Page 713} succeeded a statute prohibiting such
marriages and authorizing the imposition of certain criminal
penalties upon persons contracting or solemnizing them.  (Stats.
1850, ch. 140, p. 424.)  Since 1872, Civil Code, section 60, has
been twice amended, first to prohibit marriages between white
persons and Mongolians (Stats. 1901, p. 335) and subsequently to
prohibit marriages between white persons and members of the Malay
race.  (Stats. 1933, p. 561.)

Petitioners contend that the statutes in question are
unconstitutional on the grounds that they prohibit the free
exercise of their religion and deny to them the right to
participate fully in the sacraments of that religion.  They are
members of the Roman Catholic Church.  They maintain that since the
church has no rule forbidding marriages between Negroes and
Caucasians, they are entitled to receive the sacrament of
matrimony.

The provision of the First Amendment to the Constitution of the
United States that Congress shall make no law "respecting an
establishment of religion, or prohibiting the free exercise
thereof" is encompassed in the concept of liberty in the Fourteenth
Amendment.  State legislatures are therefore no more competent than
Congress to enact such a law.  (Cantwell v. Connecticut, 310 U.S.
296, 303 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].)  They may,
however, regulate conduct for the protection of society, and
insofar as their regulations are directed towards a proper end and
are not unreasonably discriminatory, they may indirectly affect
religious activity without infringing the constitutional guarantee.
Although freedom of conscience and the freedom to believe are
absolute, the freedom to act is not.  (Cantwell v. Connecticut,
supra, at pp. 303-304.)

The regulation of marriage is considered a proper function of the
state.  It is well settled that a legislature may declare monogamy
to be the "law of social life under its dominion," even though such
a law might inhibit the free exercise of certain religious
practices.  (Reynolds v. United States, 98 U.S. 145, 166 [25 L.Ed.
244]; Davis v. Beason, 133 U.S. 333, 343 [10 S.Ct. 299, 33 L.Ed.
637].)  If the miscegenation law under attack in the present
proceeding is directed at a social evil and employs a reasonable
means to prevent that evil, it is valid regardless of its
incidental effect upon the conduct of particular religious groups.
If, on the other hand, the law is discriminatory and irrational,
{Page 714} it unconstitutionally restricts not only religious
liberty but the liberty to marry as well.

The due process clause of the Fourteenth Amendment protects an area
of personal liberty not yet wholly delimited.  "While this Court has
not attempted to define with exactness the liberty thus guaranteed,
the term has received much consideration and some of the included
things have been definitely stated.  Without doubt, it denotes not
merely freedom from bodily restraint, but also the right of the
individual to contract, to engage in any of the common occupations
of life, to acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to the dictates of
his own conscience, and, generally, to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of
happiness by free men."  (Italics added; Meyer v. Nebraska, 262 U.S.
390, 399 [43 S.Ct. 625, 67 L.Ed. 1042].)  Marriage is thus
something more than a civil contract subject to regulation by the
state; it is a fundamental right of free men.  There can be no
prohibition of marriage except for an important social objective
and by reasonable means.

No law within the broad areas of state interest may be unreasonably
discriminatory or arbitrary.  The state's interest in public
education, for example, does not empower the Legislature to compel
school children to receive instruction from public teachers only,
for it would thereby take away the right of parents to "direct the
upbringing and education of children under their control."  (Pierce
v. Society of Sisters, 268 U.S. 510, 534-535 [45 S.Ct. 571, 69
L.Ed. 1070, 39 A.L.R. 468].)  Again, the state's vital concern in
the prevention of crime and the mental health of its citizens does
not empower the Legislature to deprive "individuals of a right
which is basic to the perpetuation of a race--the right to have
offspring" by authorizing the sterilization of criminals upon an
arbitrary basis of classification and without a fair hearing.
(Skinner v. Oklahoma, 316 U.S. 535, 536 [62 S.Ct. 1110, 86 L.Ed.
1655].){fn.1}

{Page 715}
The right to marry is as fundamental as the right to send one's
child to a particular school or the right to have offspring.
Indeed, "We are dealing here with legislation which involves one
of the basic civil rights of man.  Marriage and procreation are
fundamental to the very existence and survival of the race."
(Skinner v. Oklahoma, supra, at p. 541.)  Legislation infringing
such rights must be based upon more than prejudice and must be free
from oppressive discrimination to comply with the constitutional
requirements of due process and equal protection of the laws.

                                I
Since the right to marry is the right to join in marriage with the
person of one's choice, a statute that prohibits an individual from
marrying a member of a race other than his own restricts the scope
of his choice and thereby restricts his right to marry.  It must
therefore be determined whether the state can restrict that right
on the basis of race alone without violating the equal protection
of the laws clause of the United States Constitution.
     "Distinctions between citizens solely because of their
     ancestry are by their very nature odious to a free people
     whose institutions are founded upon the doctrine of
     equality. For that reason, legislative classification or
     discrimination based on race alone has often been held
     to be a denial of equal protection. Yick Wo v. Hopkins,
     118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]; Yu Cong Eng
     v. Trinidad, 271 U.S. 500 [46 S.Ct. 619, 70 L.Ed. 1059];
     Hill v. Texas, 316 U.S. 400 [62 S.Ct. 1159, 86 L.Ed.
     1559]."
(Hirabayashi v. United States, 320 U.S. 81, 100 [63 S.Ct. 1375,
87 L.Ed. 1774].)  In the Hirabayashi case the United States
Supreme Court held that despite the fact that under the
Constitution of the United States "racial discriminations are in
most circumstances irrelevant and therefore prohibited, it by no
means follows that, in dealing with the perils of war, Congress
and the Executive are wholly precluded from taking into account
those facts and circumstances which are relevant to measures for
our national defense and for the successful prosecution of the
war, and which may in fact place citizens of one ancestry in a
different category from others. ...  The adoption by Government,
in the crisis of war and of threatened invasion, of measures for
the public safety, based upon the recognition of facts and
circumstances which indicate that a group of one national
extraction {Page 716} may menace that safety more than others, is
not wholly beyond the limits of the Constitution and is not to be
condemned merely because in other and in most circumstances
racial distinctions are irrelevant. ...  The fact alone that
attack on our shores was threatened by Japan rather than another
enemy power set these citizens apart from others who have no
particular association with Japan."  (320 U.S. 81, 100-101.)
Whether or not a state could base similar measures on the peril
caused by a national emergency in the face of the equal
protection of the laws clause of the United States Constitution,
which does not apply to the federal government, it clearly could
not make such a distinction based on ancestry in the absence of
an emergency.

A state law prohibiting members of one race from marrying members
of another race is not designed to meet a clear and present peril
arising out of an emergency.  In the absence of an emergency the
state clearly cannot base a law impairing fundamental rights of
individuals on general assumptions as to traits of racial groups.
It has been said that a statute such as section 60 does not
discriminate against any racial group, since it applies alike to
all persons whether Caucasian, Negro, or members of any other
race.  (In re Estate of Paquet, 101 Ore. 393, 399 [200 P. 911].)
The decisive question, however, is not whether different races,
each considered as a group, are equally treated.  The right to
marry is the right of individuals, not of racial groups.  The
equal protection clause of the United States Constitution does
not refer to rights of the Negro race, the Caucasian race, or any
other race, but to the rights of individuals.  (State of Missouri
ex rel. Gaines v. Canada, 305 U.S. 337, 351 [59 S.Ct. 232, 83
L.Ed. 208]; McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235
U.S. 151, 161-162 [35 S.Ct. 69, 59 L.Ed. 169].)  In construing the
equal protection of the laws clause of the Constitution, the
United States Supreme Court has declared that the
constitutionality of state action must be tested according to
whether the rights of an individual are restricted because of his
race.  Thus, in holding invalid state enforcement of covenants
restricting the occupation of real property on grounds of race,
the Supreme Court of the United States declared: "The rights
created by the first section of the Fourteenth Amendment are, by
its terms, guaranteed to the individual.  It is, therefore, no
answer to these petitioners to say that the courts may also be
induced to deny white {Page 717} persons rights of ownership and
occupancy on grounds of race or color.  Equal protection of the
laws is not achieved through indiscriminate imposition of
inequalities."  (Shelley v. Kraemer, 334 U.S. 1 [68 S.Ct. 836,
846, 92 L.E.d. 1161].)  In an earlier case, where a Negro
contended that the state's failure to give him equal facilities
with others to study law within the state impaired his
constitutional rights under the equal protection clause, the
court rejected any consideration of the difference of the demand
for legal education among white persons and Negroes, stating:
"Petitioner's right was a personal one.  It was as an individual
that he was entitled to the equal protection of the laws, and the
State was bound to furnish him within its borders facilities for
legal education substantially equal to those which the State
there afforded for persons of the white race, whether or not
other negroes sought the same opportunity."  (State of Missouri ex
rel. Gaines v. Canada, 305 U.S. 337, 351 [59 S.Ct. 232, 83 L.Ed.
208]; Sipuel v. Board of Regents, 332 U.S. 631 [68 S.Ct. 299, 92
L.Ed. ___].)  Similarly, with regard to the furnishing of
sleeping, dining, and chair car facilities on trains, the Supreme
Court of the United States has held that even though there was
less demand for such facilities among Negroes than among whites,
the right of a member of the Negro race to substantially equal
facilities was a right of the individual and not of the racial
group: "It is the individual who is entitled to equal protection
of the laws, and if he is denied by a common carrier, acting in
the matter under the authority of a state law, a facility or
convenience in the course of his journey which, under
substantially the same circumstances, is furnished to another
traveler, he may properly complain that his constitutional
privilege has been invaded."  (McCabe v. Atchison, Topeka & Santa
Fe Railway Co., 235 U.S. 151, 161, 162 [35 S.Ct. 69, 59 L.Ed.
169].)  In these cases the United States Supreme Court determined
that the right of an individual to be treated without
discrimination because of his race can be met by separate
facilities affording substantially equal treatment to the members
of the different races.  A holding that such segregation does not
impair the right of an individual to ride on trains or to enjoy a
legal education is clearly inapplicable to the right of an
individual to marry.  Since the essence of the right to marry is
freedom to join in marriage with the person of one's choice, a
segregation statute for marriage necessarily impairs the right to
marry.

{Page 718}
In determining whether the public interest requires the
prohibition of a marriage between two persons, the state may take
into consideration matters of legitimate concern to the state.
Thus, disease that might become a peril to the prospective spouse
or to the offspring of the marriage could be made a
disqualification for marriage.  (See for example, Civ. Code, §§
79.01, 79.06.)  Such legislation, however, must be based on tests
of the individual, not on arbitrary classifications of groups or
races, and must be administered without discrimination on the
grounds of race.  (Yick Wo v. Hopkins, 118 U.S. 356, 373 [6 S.Ct.
1064, 30 L.Ed. 220].)  It has been suggested that certain races
are more prone than the Caucasian to diseases such as
tuberculosis.  If the state determines that certain diseases would
endanger a marital partner or offspring, it may prohibit persons
so diseased from marrying, but the statute must apply to all
persons regardless of race.  Sections 60 and 69 are not motivated
by a concern to diminish the transmission of disease by marriage,
for they make race and not disease the disqualification.  Thus, a
tubercular Negro or a tubercular Caucasian may marry subject to
the race limitation, but a Negro and a Caucasian who are free
from disease may not marry each other.  If the purpose of these
sections was to prevent marriages by persons who do not have the
qualifications for marriage that the state may properly
prescribe, they would make the possession of such qualifications
the test for members of all races alike.  By restricting the
individual's right to marry on the basis of race alone, they
violate the equal protection of the laws clause of the United
States Constitution.

                               II
The parties, however, have argued at length the question whether
the statute is arbitrary and unreasonable.  They have assumed
that under the equal protection clause the state may classify
individuals according to their race in legislation regulating
their fundamental rights.  If it be assumed that such a
classification can validly be made under the equal protection
clause in circumstances besides those arising from an emergency,
the question would remain whether the statute's classification of
racial groups is based on differences between those groups
bearing a substantial relation to a legitimate legislative
objective.  (Barker Bros., Inc. v. Los Angeles, 10 Cal.2d 603,
609 [76 P.2d 97]; Gulf etc. R. Co. v. Ellis, 165 U.S. 150, 165,
166 [17 S.Ct. 255, 41 L.Ed. 666]; Quaker City {Page 719} Cab Co.
v. Pennsylvania, 277 U.S. 389, 400 [48 S.Ct. 553, 72 L.Ed. 927].)
Race restrictions must be viewed with great suspicion, for the
Fourteenth Amendment "was adopted to prevent state legislation
designed to discriminate on the basis of race or color" (Railway
Mail Ass'n. v. Corsi, 326 U.S. 88, 94 [65 S.Ct. 1483, 89 L.Ed.
2072]; Williams v. International Brotherhood of Boilermakers, 27
Cal.2d 586, 590 [165 P.2d 903]) and expresses "a definite
national policy against discriminations because of race or
color."  (James v. Marinship Corp., 25 Cal.2d 721, 740 [155 P.2d
329, 160 A.L.R. 900].)  Any state legislation discriminating
against persons on the basis of race or color has to overcome the
strong presumption inherent in this constitutional policy.  "Only
the most exceptional circumstances can excuse discrimination on
that basis in the face of the equal protection clause ..."  (Oyama
v. California, 332 U.S. 633 [68 S.Ct. 269, 275, 92 L.Ed. 249].)
We shall therefore examine the history of the legislation in
question and the arguments in its support to determine whether
there are any exceptional circumstances sufficient to justify it.

California's first miscegenation statute (Stats. 1850, ch. 140,
p. 424) was enacted at the same time as two other statutes
concerning race.  It has been held that these three statutes were
in pari materia and therefore to be read together.  (Estate of
Stark, 48 Cal.App.2d 209, 214 [119 P.2d 961].)  The two companion
statutes provided: "No black or mulatto person, or Indian, shall
be permitted to give evidence in favor of, or against, any white
person.  Every person who shall have one-eighth part or more of
Negro blood shall be deemed a mulatto, and every person who shall
have one half of Indian blood shall be deemed an Indian."  (Stats.
1850, ch. 99, § 14, p. 230; repealed Code Civ. Proc., § 18,
1872.)  "No black, or mulatto person, or Indian, shall be
permitted to give evidence in any action to which a white person
is a party, in any Court of this State.  Every person who shall
have one eighth part or more of negro blood, shall be deemed a
mulatto; and every person who shall have one half Indian blood,
shall be deemed an Indian."  (Stats. 1850, ch. 142, § 306, p. 455;
repealed Code Civ. Proc., § 18, 1872.)

In 1854, this court held that Chinese (and all others not white)
were precluded from being witnesses against white persons on the
basis of the statute quoted above.  (People v. Hall, 4 Cal. 399,
404.)  The considerations motivating the decision {Page 720} are
candidly set forth: "The anomalous spectacle of a distinct people
[Chinese], living in our community, recognizing no laws of this
State except through necessity, bringing with them their
prejudices and national feuds, in which they indulge in open
violation of law; whose mendacity is proverbial; a race of people
whom nature has marked as inferior, and who are incapable of
progress or intellectual development beyond a certain point, as
their history has shown; differing in language, opinions, color,
and physical conformation; between whom and ourselves nature has
placed an impassable difference, is now presented, and for them
is claimed, not only the right to swear away the life of a
citizen, but the further privilege of participating with us in
administering the affairs of our Government."  (People v. Hall,
supra, at pp. 404-405.)  For these reasons, therefore, "all races
other than Caucasian" were held to be included in a statute
referring only to a "black or mulatto person, or Indian."

California courts are not alone in such utterances.  Many courts
in this country have assumed that human beings can be judged by
race and that other races are inferior to the Caucasian. 
Respondent's position is based upon those premises.  He justifies
the prohibition of miscegenation on grounds similar to those set
forth in the frequently cited case of Scott v. State, (1869), 39
Ga. 321, 324: "The amalgamation of the races is not only
unnatural, but is always productive of deplorable results.  Our
daily observation shows us, that the offspring of these unnatural
connections are generally sickly and effeminate, and that they
are inferior in physical development and strength, to the full
blood of either race."{fn.2}  Modern experts are agreed that the
progeny of marriages between persons of different races are not
inferior to both parents.(fn.3}  Nevertheless, even if we were
to assume that inter-racial {Page 721} marriage results in
inferior progeny, we are unable to find any clear policy in the
statute against marriages on that ground.

Civil Code, section 60, like most miscegenation statutes (see,
Vernier, American Family Laws, § 44), prohibits marriages only
between "white persons" and members of certain other so-called
races.  Although section 60 is more inclusive than most
miscegenation statutes, it does not include "Indians" or "Hindus"
(see, United States v. Bhagat Singh Thind, 261 U.S. 204, 214-215
[43 S.Ct. 338, 67 L.Ed. 616]); nor does it set up "Mexicans" as a
separate category, although some authorities consider Mexico to
be populated at least in part by persons who are a mixture of
"white" and "Indian."  (See, 15 Encyclopedia Britannica, pp. 381-
382, 60 Harv.L. Rev. 1156-1158.)  Thus, "white persons" may marry
persons who would be considered other than white by respondent's
authorities, and all other "races" may intermarry freely.

The Legislature therefore permits the mixing of all races with
the single exception that white persons may not marry Negroes,
Mongolians, mulattoes, or Malays.  It might be concluded
therefrom that section 60 is based upon the theory that the
progeny of a white person and a Mongolian or Negro or Malay are
inferior or undesirable, while the progeny of members of other
different races are not.  Nevertheless, the section does not
prevent the mixing of "white" and "colored" blood.  It permits
marriages not only between Caucasians and others of darker
pigmentation, such as Indians, Hindus, and Mexicans, but between
persons of mixed ancestry including white.  If a person of partly
Caucasian ancestry is yet classified as a Mongolian under section
60 because his ancestry is predominantly Mongolian, a
considerable mixture of Caucasian and Mongolian blood is
permissible.  A person having five-eighths Mongolian blood and
three-eighths white blood could properly marry another person of
preponderantly Mongolian blood.  Similarly, a mulatto can marry a
Negro.  Under the theory of Estate of Stark, supra, that a
mulatto is a person having one-eighth or more of Negro ancestry,
a person having seven-eighths white ancestry could marry a Negro. 
In fact two mulattoes, each of four-eighths white and four-
eighths Negro blood, could marry under section 60, and their
progeny, like them, would belong as much to one race as to the
other.  In effect, therefore, section 60 permits a substantial
amount of intermarriage between persons of some {Page 722}
Caucasian ancestry and members of other races.  Furthermore,
there is no ban on illicit sexual relations between Caucasians
and members of the proscribed races.  Indeed, it is covertly
encouraged by the race restrictions on marriage.

Nevertheless, respondent has sought to justify the statute by
contending that the prohibition of intermarriage between
Caucasians and members of the specified races prevents the
Caucasian race from being contaminated by races whose members are
by nature physically and mentally inferior to Caucasians.

Respondent submits statistics relating to the physical
inferiority of certain races.  Most, if not all, of the ailments
to which he refers are attributable largely to environmental
factors.  Moreover, one must take note of the statistics showing
that there is a higher percentage of certain diseases among
Caucasians than among non-Caucasians.{fn.4}  The categorical
statement that non-Caucasians are inherently physically inferior
is without scientific proof.  In recent years scientists have
attached great weight to the fact that their segregation in a
generally inferior environment greatly increases their liability
to physical ailments.{fn.5}  In any event, generalizations {Page
723} based on race are untrustworthy in view of the great
variations among members of the same race.  The rationalization,
therefore, that marriage between Caucasians and non-Caucasians is
socially undesirable because of the physical disabilities of the
latter, fails to take account of the physical disabilities of
Caucasians and fails also to take account of variations among
non-Caucasians.  The Legislature is free to prohibit marriages
that are socially dangerous because of the physical disabilities
of the parties concerned.  (See, Civ. Code §§ 79.01, 79.06.)  The
miscegenation statute, however, condemns certain races as unfit
to marry with Caucasians on the premise of a hypothetical racial
disability, regardless of the physical qualifications of the
individuals concerned.  If this premise were carried to its
logical conclusion, non-Caucasians who are now precluded from
marrying Caucasians on physical grounds would also be precluded
from marrying among themselves on the same grounds.  The concern
to prevent marriages in the first category and the indifference
about marriages in the second reveal the spuriousness of the
contention that intermarriage between Caucasians and non-
Caucasians is socially dangerous on physical grounds.

Respondent also contends that Negroes, and impliedly the other
races specified in section 60, are inferior mentally to
Caucasians.  It is true that in the United States catalogues of
distinguished people list more Caucasians than members of other
races.  It cannot be disregarded, however, that Caucasians are in
the great majority and have generally had a more advantageous
environment, and that the capacity of the members of any race to
contribute to a nation's culture depends in large measure on how
freely they may participate in that culture.  There is no
scientific proof that one race is superior to another in native
ability.{fn.6}  The data on which {Page 724} Caucasian
superiority is based have undergone considerable reevaluation by
social and physical scientists in the past two decades.  Although
scientists do not discount the influence of heredity on the
ability to score highly on mental tests, there is no certain
correlation between race and intelligence.  There have been
outstanding individuals in all races, and there has also been
wide variation in the individuals of all races.  In any event the
Legislature has not made an intelligence test a prerequisite to
marriage.  If respondent's blanket condemnation of the mental
ability of the proscribed races were accepted, there would be no
limit to discriminations based upon the purported inferiority of
certain races.  It would then be logical to forbid Negroes to
marry Negroes, or Mongolians to marry Mongolians, on the ground
of mental inferiority, or by sterilization to decrease their
numbers.

Respondent contends, however, that persons wishing to marry in
contravention of race barriers come from the "dregs of society"
and that their progeny will therefore be a burden on the
community.  There is no law forbidding marriage among the "dregs
of society," assuming that this expression is capable of
definition.  If there were such a law, it could not be applied
without a proper determination of the persons that fall within
that category, a determination that could hardly be made on the
basis of race alone.

Respondent contends that even if the races specified in the
statute are not by nature inferior to the Caucasian race, the
statute can be justified as a means of diminishing race tension
and preventing the birth of children who might become social
problems.

{Page 725}
It is true that in some communities the marriage of persons of
different races may result in tension.  Similarly, race tension
may result from the enforcement of the constitutional requirement
that persons must not be excluded from juries solely on the
ground of color, or segregated by law to certain districts within
a city.  In Buchanan v. Warley, 245 U.S. 60, 81 [38 S.Ct. 16, 62
L.Ed. 149], the Supreme Court of the United States declared
unconstitutional a statute forbidding a "white person" to move
into a block where the greater number of residences were occupied
by "colored persons" and forbidding a "colored person" to move
into a block where the greater number of residences were occupied
by "white persons."  The contention was made that the "proposed
segregation will promote the public peace by preventing race
conflicts."  The court stated in its opinion that desirable "as
this is, and important as is the preservation of the public
peace, this aim cannot be accomplished by laws or ordinances
which deny rights created or protected by the Federal
Constitution."  (See, Cantwell v. State, 310 U.S. 296, 310 [60
S.Ct. 900, 84 L.Ed. 1213, 128 A.L..R. 1352].)

The effect of race prejudice upon any community is unquestionably
detrimental both to the minority that is singled out for
discrimination and to the dominant group that would perpetuate
the prejudice.  It is no answer to say that race tension can be
eradicated through the perpetuation by law of the prejudices that
give rise to the tension.  Nor can any reliance be placed on the
decisions of the United States Supreme Court upholding laws
requiring segregation of races in facilities supplied by local
common carriers and schools, for that court has made it clear
that in those instances the state must secure equal facilities
for all persons regardless of race in order that no substantive
right be impaired.  (Sipuel v. Board of Regents, 332 U.S. 631 [68
S.Ct. 299, 92 L.Ed. ___], [16 U.S. Law Week 4090]; Missouri ex
rel. Gaines v. Canada, 305 U.S. 337, 350-351 [59 S.Ct. 232, 83
L.Ed. 208].)  In the present case, however, there is no redress
for the serious restriction of the right of Negroes, mulattoes,
Mongolians, and Malays to marry; certainly there is none in the
corresponding restriction of the right of Caucasians to marry.  A
member of any of these races may find himself barred by law from
marrying the person of his choice and that person to him may be
irreplaceable.  Human beings are bereft of worth and dignity by a
doctrine that would make them as interchangeable as trains.

{Page 726}
Respondent relies on Pace v. Alabama, 106 U.S. 583 [1 S.Ct. 637,
27 L.Ed. 207], in which the United States Supreme Court held
constitutional an Alabama statute imposing more severe punishment
for adultery or fornication between a white person and a Negro
than for such acts between individuals belonging to the same
race.  The Alabama statute also referred to intermarriage but the
court considered the case as one dealing solely with adultery and
nonmarital intercourse.  We are not required by the facts of this
case to discuss the reasoning of Pace v. Alabama except to state
that adultery and nonmarital intercourse are not, like marriage,
a basic right, but are offenses subject to various degrees of
punishment.

The rationalization that race discrimination diminishes the
contacts and therefore the tensions between races would
perpetuate the deprivation of rights of racial minorities.  It
would justify an abridgment of their privilege of holding office,
of jury service, of entering the professions.  The courts have
made it clear that these privileges are not the prerogatives of
any race.

It is contended that interracial marriage has adverse effects not
only upon the parties thereto but upon their progeny.  Respondent
relies on Buck v. Bell, 274 U.S. 200 [47 S.Ct. 584, 71 L.Ed.
1000], for the proposition that the state "may properly protect
itself as well as the children by taking steps which will prevent
the birth of offspring who will constitute a serious social
problem, even though such legislation must necessarily interfere
with a natural right."  That case, however, involved a statute
authorizing sterilization of imbeciles following scientific
verification and the observance of procedural guarantees.  In
Buck v. Bell the person sterilized was the feeble-minded child of
a feeble-minded mother and was herself the mother of an
illegitimate feeble-minded child.  (See, Welf. & Inst. Code,
§ 6624.)  The inheritability of mental defectiveness does not
concern us here, for this case does not involve mentally
defective persons.  The Supreme Court of the United States later
forbade the sterilization of criminals in Skinner v. Oklahoma,
supra, where the Legislature failed to provide a fair hearing and
set up illogical and discriminatory categories.  The racial
categories in the miscegenation law are as illogical and
discriminatory as those condemned by the Supreme Court in Skinner
v. Oklahoma; and there is a corresponding lack of a fair hearing.

{Page 727}
Respondent maintains that Negroes are socially inferior and have
so been judicially recognized (e.g., Wolfe v. Georgia Ry. & Elec.
Co., 2 Ga.App. 499 [58 S.E. 899, 901]), and that the progeny of a
marriage between a Negro and a Caucasian suffer not only the
stigma of such inferiority but the fear of rejection by members
of both races.  If they do, the fault lies not with their
parents, but with the prejudices in the community and the laws
that perpetuate those prejudices by giving legal force to the
belief that certain races are inferior.  If miscegenous marriages
can be prohibited because of tensions suffered by the progeny,
mixed religious unions could be prohibited on the same
ground.{fn.7}

There are now so many persons in the United States of mixed
ancestry, that the tensions upon them are already diminishing and
are bound to diminish even more in time.{fn.8}  Already many of
the progeny of mixed marriages have made important contributions
to the community.  In any event the contention that the
miscegenation laws prohibit interracial marriage because of its
adverse effects on the progeny is belied by the extreme racial
intermixture that it tolerates.

For many years progress was slow in the dissipation of the
insecurity that haunts racial minorities, for there are many who
believe that their own security depends on its maintenance.  Out
of earnest belief, or out of irrational fears, they reason in a
circle that such minorities are inferior in health, intelligence,
and culture, and that this inferiority proves the need of the
barriers of race prejudice.

Careful examination of the arguments in support of the
legislation in question reveals that "there is absent the
compelling justification which would be needed to sustain
discrimination of that nature."  (Oyama v. California, 332 U.S.
633 [68 S.Ct. 269, 272, 92 L.Ed. 249].)  Certainly the fact alone
that the discrimination has been sanctioned by the state for many
years does not supply such justification.  (Shelley v. Kraemer,
334 U.S. 1 [68 S.Ct. 836, 92 L.Ed. 1161]; Oyama v. California,
supra; Takahashi v. Fish & Game Com., 334 U.S. 410 [68 S.Ct.
1138, 92 L.Ed. 249]; see Winters v. New York, 333 U.S. 507 [68
S.Ct. 665, 92 L.Ed. 840].)

{Page 728}                     III
Even if a state could restrict the right to marry upon the basis
of race alone, sections 60 and 69 of the Civil Code are
nevertheless invalid because they are too vague and uncertain to
constitute a valid regulation.  A certain precision is essential
in a statute regulating a fundamental right.  "It is the duty of
the lawmaking body in framing laws to express its intent in clear
and plain language to the end that the people upon whom it is
designed to operate may be able to understand the legislative
will."  (In re Alpine, 203 Cal. 731,