Reprinted From the U.S. Government Printing Office via GPO Access
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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