Supreme Court of California
Case: PEREZ V. SHARP
COUNSEL: Daniel G. Marshall for Petitioners. Harold W. Kennedy, County Counsel (Los Angeles), and Charles C. Stanley, Jr., Deputy County Counsel, for Respondent.
{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, 736-737 [265 P. 947, 58
A.L.R. 1500]; cases collected 50 Am.Jur. 484.) "It is a
fundamental rule that no citizen should be deprived of his
liberty for the violation of a law which is uncertain and
ambiguous." (In re Stewart, 24 Cal.2d 344, 348 [149 P.2d 689]; In
re Peppers, 189 Cal. 682, 686 [209 P. 896]; United States v.
Cohen Grocery Co., 255 U.S. 81, 89-92 [41 S.Ct. 298, 65 L.Ed.
516]; Lanzetta v. New Jersey, 306 U.S. 451, 453 [59 S.Ct. 618, 83
L.Ed. 888]; Connally v. General Construction Co., 269 U.S. 385,
391 [46 S.Ct. 126, 70 L.Ed. 322].)
The requirement that a law be definite and its meaning
ascertainable by those whose rights and duties are governed
thereby applies not only to penal statutes, but to laws governing
fundamental rights and liberties. (Standard C. & M. Corp. v.
Waugh C. Corp., 231 N.Y. 51, 54 [131 N.E. 566, 14 A.L.R. 1054];
Small Co. v. American Sugar Ref. Co., 267 U.S. 233, 239 [45 S.Ct.
295, 69 L.Ed. 589]; see also State ex rel. Dickason v. Harris,
158 La. 974, 978 [105 So. 33].) Thus, this court in Hewitt v.
Board of Medical Examiners, 148 Cal. 590, 595 [84 P. 39, 113
Am.St.Rep. 315, 7 Ann.Cas. 750, 3 L.R.A.N.S. 896] declared
invalid a statute regulating the practice of medicine on the
ground that its provisions were too vague and uncertain to govern
one's right to practice a profession. In In re Di Torio, 8 F.2d
279, 281 it was held that a provision of a statute regulating
naturalization of aliens was invalid on the same ground.
Although the provision in question seemed clear on its face, the
court refused to apply the statute to vacate an order of
admission to citizenship because "An act is void where its
language appears on its face to have a meaning, but it is
impossible to give it any precise or intelligible application in
the circumstances under which it was intended to operate." (In re
Di Torio, supra at 281 and cases there cited.)
Section 60 of the Civil Code declares void all marriages of white
persons with Negroes, Mongolians, members {Page 729} of the Malay
race or mulattoes. In this section, the Legislature has adopted
one of the many systems classifying persons on the basis of race.
Racial classifications that have been made in the past vary as to
the number of divisions and the features regarded as
distinguishing the members of each division. The number of races
distinguished by systems of classification "varies from three or
four to thirty-four." (Boas, 7 Encyclopedia of Soc. Sciences, 25,
26.) The Legislature's classification in section 60 is based on
the system suggested by Blumenbach early in the nineteenth
century. (Roldan v. Los Angeles County, 129 Cal.App. 267, 273
[18 P.2d 706].) Blumenbach classified man into five races:
Caucasian (white), Mongolian (yellow), Ethiopian (black),
American Indian (red), and Malayan (brown). Even if that hard
and fast classification be applied to persons all of whose
ancestors belonged to one of these racial divisions,{fn.8a} the
Legislature has made no provision for applying the statute to
persons of mixed ancestry. The fact is overwhelming that there
has been a steady increase in the number of people in this
country who belong to more than one race, and a growing number
who have succeeded in identifying themselves with the Caucasian
race even though they are not exclusively Caucasian. Some of
these persons have migrated to this state; some are born here
illegitimately; others are the progeny of miscegenous marriages
valid where contracted and therefore valid in California.
(Pearson v. Pearson, 51 Cal. 120, 125.) The apparent purpose of
the statute is to discourage the birth of children of mixed
ancestry within this state. Such a purpose, however, cannot be
accomplished without taking into consideration marriages of
persons of mixed ancestry. A statute regulating fundamental
rights is clearly unconstitutional if it cannot be reasonably
applied to accomplish its purpose. This court therefore cannot
determine the constitutionality of the statute in question on the
assumption that its provisions might, with sufficient
definiteness, be applied to persons not of mixed ancestry.
The only reference made in the statute to persons of mixed
ancestry is the prohibition of marriages between a "white person"
and a "mulatto." Even the term "mulatto" is not defined. The
lack of a definition of that term leads to a special problem of
how the statute is to be applied to a {Page 730} person, some but
not all of whose ancestors are Negroes.{fn.9} The only case in
this state attempting to define the term "mulatto" in section 60
of the Civil Code leaves undecided whether a person with less
than one-eighth Negro blood is a "mulatto" within the meaning of
the statute. (Estate of Stark, 48 Cal.App.2d 209, 214 [119 P.2d
961].) Even more uncertainty surrounds the meaning of the terms
"white persons," "Mongolians," and "members of the Malay race."
If the statute is to be applied generally to persons of mixed
ancestry the question arises whether it is to be applied on the
basis of the physical appearance of the individual or on the
basis of a genealogical research as to his ancestry. If the
physical appearance of the individual is to be the test, the
statute would have to be applied on the basis of subjective
impressions of various persons. Persons having the same parents
and consequently the same hereditary background could be
classified differently. On the other hand, if the application of
the statute to persons of mixed ancestry is to be based on
genealogical research, the question immediately arises what
proportions of Caucasian, Mongolian, or Malayan ancestors govern
the applicability of the statute. Is it any trace of Mongolian
or Malayan ancestry, or is it some unspecified proportion of such
ancestry that makes a person a Mongolian or Malayan within the
meaning of section 60?
To determine that a person is a Mongolian or Malayan within the
meaning of the statute because of any trace of {Page 731} such
ancestry, however slight, would be absurd. If the classification
of a person of mixed ancestry depends upon a given proportion of
Mongolians or Malayans among his ancestors, how can this court,
without clearly invading the province of the Legislature,
determine what that decisive proportion is? (See, Pacific Coast
etc. Bank v. Roberts, 16 Cal.2d 800, 805 [108 P.2d 439].) Nor can
this court assume that a predominance in number of ancestors of
one race makes a person a Caucasian, Mongolian, or Malayan within
the meaning of the statute, for absurd results would follow from
such an assumption. Thus, a person with three-sixteenths Malay
ancestry might have many so-called Malay characteristics and yet
be considered a white person in terms of his preponderantly white
ancestry. Such a person might easily find himself in a dilemma,
for if he were regarded as a white person under section 60, he
would be forbidden to marry a Malay, and yet his Malay
characteristics might effectively preclude his marriage to
another white person. Similarly, a person having three-eighths
Mongolian ancestry might legally be classed as a white person
even though he possessed Mongolian characteristics. He might
have little opportunity or inclination to marry any one other
than a Mongolian, yet section 60 might forbid such a marriage.
Moreover, if a person were of four-eighths Mongolian or Malayan
ancestry and four-eighths white ancestry, a test based on
predominance in number of ancestors could not be applied.
Section 69 of the Civil Code and section 60 on which it is based
are therefore too vague and uncertain to be upheld as a valid
regulation of the right to marry. Enforcement of the statute
would place upon the officials charged with its administration
and upon the courts charged with reviewing the legality of such
administration the task of determining the meaning of the
statute. That task could be carried out with respect to persons
of mixed ancestry only on the basis of conceptions of race
classification not supplied by the Legislature. "If no judical
certainty can be settled upon as to the meaning of a statute, the
courts are not at liberty to supply one." (In re Di Torio, 8 F.2d
279, 281.)
In summary, we hold that sections 60 and 69 are not only too
vague and uncertain to be enforceable regulations of a
fundamental right, but that they violate the equal protection of
the laws clause of the United States Constitution by impairing
the right of individuals to marry on the basis of race {Page 732}
alone and by arbitrarily and unreasonably discriminating against
certain racial groups.
Let the peremptory writ issue as prayed.
Gibson, C.J., and Carter, J., concurred.
CARTER, J., concurring:
It is my considered opinion that the statutes here involved (Civ.
Code, §§ 60, 69) are the product of ignorance, prejudice and
intolerance, and I am happy to join in the decision of this court
holding that they are invalid and unenforceable. This decision
is in harmony with the declarations contained in the Declaration
of Independence which are guaranteed by the Bill of Rights and
the Fourteenth Amendment to the Constitution of the United States
and reaffirmed by the Charter of the United Nations, that all
human beings have equal rights regardless of race, color or
creed, and that the right to liberty and the pursuit of happiness
is inalienable and may not be infringed because of race, color or
creed. To say that these statutes may stand in the face of the
concept of liberty and equality embraced within the ambit of the
above-mentioned fundamental law is to make of that concept an
empty, hollow mockery.
The Declaration of Independence declares: "We hold these truths
to be self evident: That all men are created equal; that they are
endowed by their Creator with certain unalienable rights; that
among these are life, liberty and the pursuit of happiness; ..."
The Fifth Amendment to the Constitution of the United States
provides that: "No person shall be deprived of life, liberty or
property without due process of law."
The Fourteenth Amendment to the Constitution of the United States
provides:
"Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
The Charter of the United Nations contains the following
declaration:
"We the Peoples of the United Nations determined: ... to
reaffirm faith in fundamental human rights, in the
dignity and worth of the human person, in the {Page 733}
equal rights of men and women and of nations large and
small ... to promote social progress and better standards
of life in larger freedom, ... And for these ends ... to
practice tolerance ..." (Preamble.) "... in promoting and
encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex,
language, or religion ..."
(Ch. I, art. I, § 3.)
In the face of these authoritative pronouncements the matter of
race equality should be a settled issue. It is, at least, a
settled issue so far as the fundamental law is concerned. And
the only question before us is whether the Legislature may enact
a valid statute in direct conflict with this fundamental law. It
seems clear to me that it is not possible for the Legislature, in
the face of our fundamental law, to enact a valid statute which
proscribes conduct on a purely racial basis. Such are the
statutes here involved. The wisdom of the broad, liberal concept
of liberty and equality declared in our fundamental law should be
apparent to every unprejudiced mind.
The Apostle Paul declared that: "God ... hath made of one blood
all nations of men for to dwell on all the face of the earth, and
hath determined the times before appointed, and the bounds of
their habitation." (The Acts of the Apostles, ch. 17, v. 26.)
Cedric Dover writes in his book "Half-Caste":
"Perhaps our Neanderthal ancestors arose from mixture
between ape-men of the Ice Age. Perhaps our Neolithic
prototypes emerged from relations between the Aurignacian
invaders of Europe and the local Neanderthals. We shall
be content with the knowledge that miscegenation has
influenced human evolution from the earliest times, that
there has not been a pure race of our species for at
least ten thousand years."
In a letter to Chastellux in 1785 Thomas Jefferson wrote: "I have
supposed the black man, in his present state, might not be in
body and mind equal to the white man; but it would be hazardous
to affirm that, equally cultivated for a few generations, he
would not become so." Notwithstanding this statement, Jefferson,
who was the author of the Declaration of Independence, made it
clear that the Negro is entitled to enjoy equally with others the
"unalienable rights of life, liberty and the pursuit of
happiness."
The Declaration of Independence is a part of the law of our land.
It is to be found as part of the Statutes at Large {Page 734} on
page 1 of volume 1. It has been given effect as a legislative
enactment (Inglis v. Trustees of the Sailor's Snug Harbor, 28
U.S. (3 Pet.) 99 [7 L.Ed. 617], and other cases cited in
U.S.C.A., 1 Constitution, pp. 7, 8; Fidelity & Casualty Co. of
New York v. Union Savings Bank Co., 29 Ohio App. 154 [163 N.E.
221]). It declares that: "All men are created equal; that they
are endowed by their Creator with certain unalienable rights;
that among these are life, liberty and the pursuit of happiness;
...." No one will question that, so far as petitioners are
concerned, this case involves the pursuit of happiness in its
clearest and most universally approved form.
It is a matter of law as well as historical knowledge that after
the Revolution all men were not, in law, equal (Dred Scott v.
Sanford, 19 How. (U.S.) 393 [15 L.Ed. 691]). But it is well to
remember that men fought, bled, and died for the truth of the
proposition.
In the Dred Scott case, supra, the truth of the proposition was
questioned and denied in an opinion by Chief Justice Taney. It
is again a matter of historical knowledge that this decision
helped to kindle the fire which brought on the Civil War. In
this war men fought, bled and died for their belief in the
essential equality of man.
Abraham Lincoln, in his never-to-be-forgotten Gettysburg Address,
told us, because he was speaking to the future as well as of the
past, that "Four score and seven years ago our fathers brought
forth upon this continent, a new nation, conceived in Liberty,
and dedicated to the proposition that all men are created equal."
He asked whether "[A]ny nation, so conceived and so dedicated,
can long endure." The Civil War was supposed to definitely and
conclusively answer that question. This being so, should a
state, or even a number of states, legislate to destroy that
ideal when great wars have been fought to preserve it? An ideal
for which men gave their lives and the lives of their families
should be a precious heritage to be carefully guarded. And yet
all men are not now being given equal treatment!
The freedom to marry the person of one's choice has not always
existed, and evidently does not exist here today. But is not
that one of the fundamental rights of a free people? Blackstone
said that: "Liberty consists in being limited only by that
Supreme Law which is the expression of abstract right." If the
right to marry is a fundamental right, then it must be conceded
that an infringement of that right by {Page 735} means of a
racial restriction is an unlawful infringement of one's liberty.
It is immaterial that perhaps only a few would wish to marry
persons not of their own race or color. It is material that the
few who do so desire have the right to make that choice. It is
only ignorance, prejudice and intolerance which denies it. Since
this state will recognize as valid a marriage performed in
another state between members of these two races it follows that
the marriage cannot be considered vitally detrimental to the
public health, welfare and morals.
The Constitution of the State of California, article I, section
13, provides that no person shall be deprived of life, liberty or
property without due process of law. Due process of law consists
not only of the individual's right to procedural due process, but
his right to substantive due process--that the state, through
legislation, shall not deprive him of one of his "liberties."
Our Constitution, like the Constitution of the United States, is
a restriction upon the powers of the state. Upon this court
devolves the duty of guarding that Constitution and the rights it
protects, as upon the Supreme Court of the United States devolves
the duty of guarding the Constitution of the United States.
The student of constitutional law knows that the Civil War
amendments to the Constitution did not accomplish their intended
purpose, which was to create a real, over-all equality such as
the Declaration of Independence contemplated, and which such
cases as the Dred Scott case prevented from being realized.
(Waite, The Negro in the Supreme Court, 30 Minn. L.Rev. 219.)
In the years following the adoption of the Thirteenth, Fourteenth
and Fifteenth Amendments, many courts still did not think that
there was real equality among men despite the fact that the
language of the amendments is quite clear. Another round of the
vicious circle was begun, this time by limiting as far as
possible the language of the amendments. Many cases might be
cited to support this view, but the hardest blow to liberal
minded persons--the biggest step backwards into days of slavery--
was the decision in Plessy v. Ferguson, 163 U.S. 537 [16 S.Ct.
1138, 41 L.Ed. 256]. That case involved a Louisiana statute
which provided that railroads must provide "equal but separate"
accommodations for white and colored passengers, and that, under
penalty, {Page 736} no member of either group should be permitted
to use the accommodations provided for the other. The Supreme
Court upheld the statute, and laid down the rule that the state
had power to make regulations of this kind "in good faith for the
promotion of the public good." The court also said that the
question came down to the "reasonableness of the regulation."
(Plessy v. Ferguson, supra, p. 537.) By using that language,
however, the Supreme Court left the door open for a future, more
enlightened generation. For, if the reasonableness of the
regulation is the only test, it may and will happen that a
regulation was reasonable from the point of view of the
Legislature enacting it and the court first passing on it. And
yet, in the light of future developments, all the reasonableness
may have been lost and the regulation may have reduced itself to
a mere tool of oppression--a hangover from quaint and
superstitious days of yore. There are enough statutes of this
kind to fill periodically a column in Collier's magazine. Most
statutes thus rendered obsolete are not especially vicious, and
most of them are not enforced. It is safe to assume that most of
them would be struck down today if their constitutionality were
challenged, because what once may have appeared reasonable has
become an absurdity.
It is, of course, conceded that the state in the exercise of the
police power may legislate for the protection of the health and
welfare of the people and in so doing may infringe to some extent
on the rights of individuals. But it is not conceded that a
state may legislate to the detriment of a class--a minority who
are unable to protect themselves, when such legislation has no
valid purpose behind it. Nor may the police power be used as a
guise to cloak prejudice and intolerance. Prejudice and
intolerance are the cancers of civilization.
It is my position that the statutes now before us never were
constitutional. When first enacted, they violated the supreme
law of the land as found in the Declaration of Independence. It
is further my position that the Fourteenth Amendment to the
Constitution of the United States invalidated the statutes here
involved. In a powerful dissent in Plessy v. Ferguson, supra,
Justice Harlan said, at page 559:
"Our Constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law. ... The
law regards man as man, and takes no account of his
surroundings or of his color when his civil rights as
guaranteed by the supreme {Page 737} law of the land are
involved ... the judgment this day rendered will, in
time, prove to be quite as pernicious as the decision
made by this tribunal in the Dred Scott case."
This language needs no elaboration. The time at which this
judgment has become pernicious has arrived.
Even if I concede, which I do not, that the statutes here
involved were at any time reasonable, they are no longer
reasonable and therefore no longer valid today. The rule is that
the constitutionality of a statute is not determined once and for
all by a decision upholding it. A change in conditions may
invalidate a statute which was reasonable and valid when enacted
(Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405 [55
S.Ct. 486, 79 L.Ed. 949], 16 C.J.S. 150).
In this case, there are no decisions of either this court or the
Supreme Court of the United States which uphold the validity of a
statute forbidding or invalidating miscegenous marriages. As has
been pointed out, even if there were precedent, it would not
necessarily be binding in this case. The cases from other
jurisdictions are, of course, not binding here. Under the test
laid down by the United States Supreme Court in Plessy v.
Ferguson, supra, the reasonableness of the regulation is
therefore the decisive factor. And there are decisions rendered
in this state which definitely point the way as to what is to be
considered "reasonable" and in accord with the public policy of
this state.
This court has upheld the validity of miscegenous marriages, so-
called, when the marriage was entered into in a jurisdiction
where no prohibition existed (Pearson v. Pearson, 51 Cal. 120,
125). Under the well-settled rules of the law of Conflict of
Laws, this court could have denied validity to such marriages,
provided they were "odious" to its own internal policy. It did
not do so, and it has indicated in other holdings in which the
problem of miscegenation was collaterally involved that it does
not consider the internal policy of this state one which would
lead it to refuse validity to such marriages (Rest. of Conflicts
of Laws, § 132 (c)).
Some of the statutes of the type here under attack have been
upheld as reasonably designed to prevent race rioting. The fact
that this court grants recognition to foreign miscegenous
marriages, valid where contracted, is enough to rebut that
argument. Riots would either follow in both cases or in none.
One author sums up the problem by asking: "Does this not mean
that the miscegenation statute applies only to {Page 738} those
who either have an inadequate knowledge of the law and/or cannot
afford the train fare to a state where the attempted marriage
would be valid?" (Tragen, 32 Cal.L.Rev. 269, 277.)
So far as the policy of this court is concerned, there is no
basis for upholding the statutes. But it is said that it is not
the policy of the court but that of the Legislature which should
control. And there again, there are strong indications of
legislative trends and intentions which point the way. So far as
employment under public contracts is concerned, the laws of this
state forbid discrimination based on color (Lab. Code, § 1735).
So far as civil rights other than the right to marry are
concerned, they are guaranteed by Civil Code, section 52. The
statutes forbidding miscegenous marriages here under attack are
further distinguished from statutes in other jurisdictions in
that they are entirely declaratory, while all the others carry
with them penalties for violation. This, too, would indicate an
attitude of comparative indifference on part of the Legislature,
and the absence of any clearly expressed public sentiment or
policy.
The legislation here under attack is also sought to be sustained
on the ground that a legislative enactment duly made and based on
"some evidence" is presumptively valid. The general rule to that
effect may be conceded. But it does not apply to a case of this
kind. In cases involving discrimination, the rule is that laid
down by the Supreme Court of the United States in Korematsu v.
United States, 323 U.S. 214, 216 [65 S.Ct. 193, 194, 89 L.Ed.
194, 199], where the court speaking through Mr. Justice Black
said: "... all legal restrictions which curtail the civil rights
of a single racial group are immediately suspect ... courts must
subject them to the most rigid scrutiny Pressing public
necessity may sometimes justify the existence of such
restrictions; racial antagonism never can." That suspicion which
attaches to cases involving discrimination is sufficient to
overcome the presumption of validity and constitutionality
normally present when a statute is attacked as unconstitutional.
Finally, the statute is sought to be upheld for "sociological"
reasons. The evidence presented to sustain the statute and that
tending to show it up as unreasonable falls into two groups. One
is concerned with the social effect of such marriages on the
parties and those close to them. That social ostracism may well
result to the parties and perhaps their offspring, may be
conceded. But that is something {Page 739} which the state is
powerless to control and which it cannot prevent by legislation.
It therefore furnishes no basis for legislation, either. It is
something resting with the parties themselves, for them to
decide. If they choose to face this possible prejudice and think
that their own pursuit of happiness is better subserved by
entering into this marriage with all its risks than by spending
the rest of their lives without each other's company and comfort,
the state should not and cannot stop them.
The other aspect of the evidence adduced is the medico-eugenic
one. A great deal has been written and said about the
desirability or undesirability of racial mixtures. The writers
seem to be in such hopeless conflict that their lack of bias may
well be questioned. Suffice it to quote the following from
petitioner's brief:
"The blood-mixing however, with the lowering of the
racial level caused by it, is the sole cause of the
dying-off of old cultures; for the people do not perish
by lost wars, but by the loss of that force of resistance
which is contained only in the pure blood.
"All that is not race in this world is trash."
"The result of any crossing, in brief, is always the
following: (a) lowering of the standard of the higher
race, (b) physical and mental regression, and, with it,
the beginning of slowly but steadily progressive
lingering illness."
"Every race-crossing leads necessarily sooner or later
to the decline of the mixed product. The danger for the
mixed product is abolished only in the moment of the
bastardization of the last higher, racially pure
element."
"... [T]here is only one most sacred human right, and
this right is at the same time the most sacred
obligation, namely, to see to it that the blood is
preserved pure, so that by its preservation of the best
human material a possibility is given for a more noble
development of these human beings."
This quotation is from Hitler's "Mein Kampf" as published in
translation in New York in 1940. To bring into issue the
correctness of the writings of a madman, a rabble-rouser, a mass-
murderer, would be to clothe his utterances with an undeserved
aura of respectability and authoritativeness. Let us not forget
that this was the man who plunged the world into a war in which,
for the third time, Americans fought, bled, and died for the
truth of the proposition that all men are created equal.
{Page 740}
We may take judicial notice of the fact--since it is a political
and historical fact--that steady inroads have been made on the
myth of racial superiority and its outgrowths.
The rest of the world never has understood and never will
understand why and how a nation, built on the premise that all
men are created equal, can three times send the flower of its
manhood to war for the truth of this premise and still fail to
carry it out within its own borders.
In 1682, Lord Nottingham said in the course of an opinion: "Pray
let us so resolve Cases here, that they may stand with the Reason
of Mankind when they are debated abroad. Shall that be Reason
here that is not Reason in any part of the World besides?" (Duke
of Norfolk's Case, 3 Ch.Cas. 1, 33, 22 Eng.Repr. 931, 935.)
In my opinion, the statutes here involved violate the very
premise on which this country and its Constitution were built,
the very ideas embodied in the Declaration of Independence, the
very issue over which the Revolutionary War, the Civil War, and
the Second World War were fought, and the spirit in which the
Constitution must be interpreted in order that the
interpretations will appear as "Reason in any part of the World
besides."
EDMONDS, J., concurring:
I agree with the conclusion that marriage is "something more than
a civil contract subject to regulation by the state; it is a
fundamental right of free men." Moreover, it is grounded in the
fundamental principles of Christianity. The right to marry,
therefore, is protected by the constitutional guarantee of
religious freedom, and I place my concurrence in the judgment
upon a broader ground than that the challenged statutes are
discriminatory and irrational.
In Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed.
1213, 128 A.L.R. 1352] (1940), the United States Supreme Court,
for the first time expressly held that, through the due process
clause of the Fourteenth Amendment, a state statute may be
declared invalid if it violates the specific guarantee of
religious freedom as stated in the First Amendment. The
consequences of that decision were forcefully stated by Mr.
Justice Jackson in West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 639 [63 S.Ct. 1178, 87 L.Ed. 1628, 147
A.L.R. 674], as follows:
"In weighing arguments of the parties it is important to
distinguish between the due process clause of the
Fourteenth Amendment as an instrument of transmitting the
principles of the First Amendment and {Page 741} those
cases in which it is applied for its own sake. The test
of legislation which collides with the Fourteenth
Amendment, because it also collides with the principles
of the First, is much more definite than the test when
only the Fourteenth is involved. Much of the vagueness
of the due process clause disappears when the specific
prohibitions of the First become its standard. The right
of a State to regulate, for example, a public utility may
well include, so far as the due process test is
concerned, power to impose all of the restrictions which
a legislature may have a 'rational basis' for adopting.
But freedom of speech and of press, of assembly, and of
worship may not be infringed on such slender grounds.
They are susceptible of restriction only to prevent grave
and immediate danger to interests which the State may
lawfully protect."
Reasonable classification, therefore, is not the test to be
applied to a statute which interferes with one of the fundamental
liberties which are protected by the First Amendment. The
question is whether there is any "clear and present danger"
justifying such legislation (Craig v. Harney, 331 U.S. 367, 372
[67 S.Ct. 1249, 91 L.Ed. 1546]; Pennekamp v. Florida, 328 U.S.
331, 333 [66 S.Ct. 1029, 90 L.Ed. 1295]; Cantwell v. Connecticut,
supra, at p. 311; Herndon v. Lowry, 301 U.S. 242, 256 [57 S.Ct.
732, 81 L.Ed. 1066]; Schenck v. United States, 249 U.S. 47, 52
[39 S.Ct. 247, 63 L.Ed. 470]), and the burden of upholding the
enactment is upon him who asserts that the acts which are
denounced do not infringe the freedom of the individual. (Busey
v. District of Columbia, 138 F.2d 592, 595.)
In the present case, the respondent does not claim that there is
any clear and present danger justifying the restrictions imposed
by sections 60 and 69 of the Civil Code. In 18 states, including
New York, Illinois and Pennsylvania, where about 10 per cent of
the Negroes of the United States reside, there are no such
limitations. The population of California, to a large extent, is
made up of people who have come to it from other sections of the
country, and if there are undesirable consequences of interracial
marriages, the challenged legislation is an ineffective means of
meeting the problem.
The decisions upholding state statutes prohibiting polygamy come
within an entirely different category. In Reynolds v. United
States, 98 U.S. 145 [25 L.Ed. 244], marriage was said to be,
"from its very nature a sacred obligation," but the conviction
was sustained upon the ground that polygamy {Page 742} violates
"the principles upon which the government of the people, to a
greater or less extent, rests." Later, the court characterized
the practice of polygamy as being "contrary to the spirit of
Christianity and of the civilization which Christianity has
produced in the Western world" (Church of Jesus Christ of L. D.
S. v. United States, 136 U.S. 1 [10 S.Ct. 792, 34 L.Ed. 478]; see
Davis v. Beason, 133 U.S. 333 [10 S.Ct. 299, 33 L.Ed. 637]). In
effect, therefore, these cases rest upon the principle that the
conduct which the legislation was designed to prevent constituted
a clear and present danger to the well being of the nation and,
for that reason, the statute did not violate constitutional
guarantees.
SHENK, J.
I dissent.
The power of a state to regulate and control the basic social
relationship of marriage of its domiciliaries is here challenged
and set at nought by a majority order of this court arrived at
not by a concurrence of reasons but by the end result of four
votes supported by divergent concepts not supported by authority
and in fact contrary to the decisions in this state and
elsewhere.
It will be shown that such laws have been in effect in this
country since before our national independence and in this state
since our first legislative session. They have never been
declared unconstitutional by any court in the land although
frequently they have been under attack. It is difficult to see
why such laws, valid when enacted and constitutionally
enforceable in this state for nearly 100 years and elsewhere for
a much longer period of time, are now unconstitutional under the
same Constitution and with no change in the factual situation.
It will also be shown that they have a valid legislative purpose
even though they may not conform to the sociogenetic views of
some people. When that legislative purpose appears it is
entirely beyond judicial power, properly exercised, to nullify
them.
This proceeding, therefore, involves a most important state
function long since recognized as such. Indeed as late as June
7, 1948, it has been recognized by the Supreme Court of the
United States "that the regulation of the incidents of the
marital relation involves the exercise by the states of powers of
the most vital importance." (Sherrer v. Sherrer, 334 U.S. 343 [68
S.Ct. 1087, 92 L.Ed. 1429].) Because of the far-reaching effect
of an order of this court in connection {Page 743} with this
basic social relationship the subject is worthy of somewhat
extended discussion in support of our statutes.
According to the verified petition for the writ of mandamus to
compel the issuance of a marriage license, Andrea D. Perez is a
white person and Sylvester S. Davis, Jr., is a Negro. Respondent
county clerk rests his refusal to issue a certificate and license
to them on the ground that he is expressly prohibited from so
doing by the provisions of section 69 of the Civil Code, and upon
the further ground that their purported marriage in this state
would be illegal and void. (Civ. Code, § 60.)
Section 69 of the Civil Code contains the following proviso: "...
no license may be issued authorizing the marriage of a white
person with a Negro, mulatto, Mongolian or member of the Malay
race." And complementary section 60 of the same code reads: "All
marriages of white persons with negroes, Mongolians, members of
the Malay race, or mulattoes are illegal and void."
Petitioners first contend that the above quoted statutory
provisions deprive them of the religious freedom guaranteed by
the First and Fourteenth Amendments of the federal Constitution
and article I, section 4, of the Constitution of this state.
They allege that they are members and communicants of the Roman
Catholic Church; that it is the dogma, belief and teaching of the
church that a person of the white race and a person of the Negro
race, if otherwise eligible, are entitled to receive conjointly
the sacrament of matrimony and to intermarry; that the refusal of
respondent to issue the license denies to them the right to
participate fully in the sacramental life of the religion in
which they believe, prohibits the free exercise by them of their
religion, and violates the guaranty of the free exercise and
enjoyment of their religious profession and worship. It is
further alleged that section 69 of the Civil Code is arbitrary,
capricious and without reasonable relation to any purpose within
the competency of the state to effect.
Respondent on the other hand contends that the classifications
contained in sections 60 and 69 of the Civil Code do not
transgress the petitioners' freedom of religious worship; that
such classifications are reasonably designed to promote the
general welfare and the interests of individual members of the
races mentioned, and that the regulation is therefore a proper
exercise of the police power of the state.
{Page 744}
At the outset it may be noted that the petitioners' alleged right
to marry is not a part of their religion in the broad sense that
it is a duty enjoined by the church, or that penalty and
punishment may in some manner ensue (cf. Reynolds v. United
States, 98 U.S. 145, 161 [25 L.Ed. 244]); but rather that their
marriage is permissive under the dogma, beliefs and teaching of
the church to which they claim membership and that the sacrament
of matrimony will be administered to them by a priest of the
church if and when a license issues. In this connection Father
John La Farge, executive editor of "America," the national
Catholic weekly, in a book entitled "The Race Question and The
Negro" (Permissu Superiorum), (1943), states at page 196: "The
Catholic Church does not impose any impediment, diriment
impediment, upon racial intermarriage, in spite of the Church's
great care to preserve in its utmost purity the integrity of the
marriage bond.
"On the other hand, where such intermarriages are prohibited by
law, as they are in several states of the Union, the Church bids
her ministers to respect these laws, and to do all that is in
their power to dissuade persons from entering into such unions."
The foregoing is mentioned to show that the attitude of the
church has no particular bearing on the asserted rights of the
petitioners. Its attitude is one of respect for local laws and
an admonition to its clergy to advise against their infringement.
Other considerations are presented in connection with
petitioners' contentions that their religious liberty is being
infringed. The First Amendment to the United States Constitution
declares that Congress shall make no law respecting an
establishment of religion or prohibit the free exercise thereof.
The due process of law clause of the Fourteenth Amendment
embraces this fundamental concept of liberty as expressed in the
First Amendment and renders the states likewise incompetent to
transgress it. However, this religious liberty "embraces two
concepts,--freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the second cannot be."
(Cantwell v. Connecticut, 310 U.S. 296, 303 [60 S.Ct. 900, 84
L.Ed. 1213, 128 A.L.R. 1352]; Murdock v. Pennsylvania, 319 U.S.
105, 110 [63 S.Ct. 870, 891, 87 L.Ed. 1292, 146 A.L.R. 81];
Gospel Army v. City of Los Angeles, 27 Cal.2d 232 [163 P.2d
704].) It has long {Page 745} been held that conduct, consisting
of practices and acts, remains subject to regulation for the
health, safety and general welfare. For example, a legislative
determination that monogamy is the "law of social life" has been
held to prevail over the practice of polygamy and bigamy as a
duty required, encouraged or suffered by religion. (Reynolds v.
United States, supra, 98 U.S. 145; Davis v. Beason, 133 U.S. 333
[10 S.Ct. 299, 33 L.Ed. 637]; Cleveland v. United States, 329
U.S. 14 [67 S.Ct. 13, 91 L.Ed. 12].)
The reasoning behind this construction of the Constitution is
obvious. The determination of proper standards of behavior must
be left to the Congress or to the state legislatures in order
that the well being of society as a whole may be safeguarded or
promoted. The protection of the individual's exercise of
religious worship afforded by our state Constitution, article I,
section 4, corresponds with that furnished by the federal
guaranty as interpreted by the United States Supreme Court. Our
Constitution expressly provides that the free exercise of
religion guaranteed "shall not be so construed as to ... justify
practices inconsistent with the peace or safety of this State."
Moreover, the right of the state to exercise extensive control
over the marriage contract has always been recognized. The
institution of matrimony is the foundation of society, and the
community at large has an interest in the maintenance of its
integrity and purity. (Sharon v. Sharon, 75 Cal. 1 [16 P. 345];
16 Cal.Jur. 909.) The Supreme Court of the United States has
stated: "Marriage, as creating the most important relation in
life, as having more to do with the morals and civilization of a
people than any other institution, has always been subject to the
control of the legislature." (Maynard v. Hill, 125 U.S. 190, 205
[8 S.Ct. 723, 31 L.Ed. 654].) And: "Marriage, while from its very
nature a sacred obligation, is nevertheless, in most civilized
nations, a civil contract, and usually regulated by law. Upon it
society may be said to be built, and out of its fruits spring
social relations and social obligations and duties, with which
government is necessarily required to deal." (Reynolds v. United
States, supra, 98 U.S. 145, 165.) In the language of the Supreme
Court of Missouri: "The right to regulate marriage, the age at
which persons may enter into that relation, the manner in which
the rites may be celebrated, and the persons between whom it may
be contracted, has been assumed and exercised by every {Page 746}
civilized and Christian nation." (State v. Jackson, 80 Mo. 175,
179 [50 Am.Rep. 499].) Further: "There can be no doubt as to the
power of every country to make laws regulating the marriage of
its own subjects; to declare who may marry, how they may marry,
and what shall be the legal consequences of their marrying. The
right to regulate the institution of marriage; to classify the
parties and persons who may lawfully marry; to dissolve the
relation by divorce; and to impose such restraints upon the
relation as the laws of God, and the laws of propriety, morality
and social order demand, has been exercised by all civilized
governments in all ages of the world." (Kinney v. The
Commonwealth, 30 Gratt. (Va.) 858, 862 [32 Am.Rep. 690].)
It is apparent from what has been said that if the law under
attack bears a substantial relationship to the health, safety,
morals or some other phase of the general welfare of the people
of this state, it would not be invalid because incidentally in
conflict with the conduct and practice of a particular religious
group. Similarly if there is a rational basis for the law, if it
is reasonable, and all within a given class are treated alike,
there is no violation of the due process or equal protection
clauses of the Fourteenth Amendment to the United States
Constitution. (See Missouri ex rel. Gaines v. Canada, 305 U.S.
337 [59 S.Ct. 232, 83 L.Ed. 208]; Buck v. Bell, 274 U.S. 200 [47
S.Ct. 584, 71 L.Ed. 1000]; Radice v. New York, 264 U.S. 292 [44
S.Ct. 325, 68 L.Ed. 690]; Patsone v. Pennsylvania, 232 U.S. 138
[34 S.Ct. 281, 58 L.Ed. 539]; Noble State Bank v. Haskell, 219
U.S. 104 [31 S.Ct. 186, 55 L.Ed. 112].)
The prohibition of miscegenetic marriage is not a recent
innovation in this state nor is such a law by any means unique
among the states. A short history of miscegenetic marriage laws
in this state and elsewhere will contribute to a better
understanding of the problem at hand. A law declaring marriages
between white persons and Negroes to be illegal and void was
enacted at the first session of our Legislature. (Stats. 1850,
ch. 140, p. 424.) Section 60 of the Civil Code declaring certain
marriages invalid has existed since the advent of our codes in
1872, at which time it extended only to intermarriage between
white persons and Negroes or mulattoes. It succeeded the
prohibition against such marriages found in the above-mentioned
statutes of 1850. Section 60 was amended in 1905 to include
marriage between white persons and Mongolians (Stats. 1905, p.
554). The provisions of the law here attacked {Page 747} have
remained unchallenged for nearly one hundred years and have been
unchanged so far as the marriage of whites with Negroes is
concerned. To indicate that the subject matter is not merely of
ancient legislative consideration it should be noted that in 1933
the District Court of Appeal decided that sections 60 and 69 did
not prohibit the marriage in this state of a white woman and a
Filipino--a member of the Malay race (Roldan v. Los Angeles
County, 129 Cal.App. 267 [18 P.2d 706]). That case was decided on
January 27, 1933. Without delay the Legislature amended both
sections to extend the prohibition to marriages also as between
white persons and members of the Malay race. The amendatory
measures passed both houses of the Legislature and were signed by
the governor on April 20th of the same year (Stats. 1933, p. 561)
thus rendering nugatory the decision in the Roldan case--which
was the obvious purpose of the legislation. As above indicated
the present concern with the legislation is only as it affects
marriages between white persons and Negroes.
Twenty-nine states in addition to California have similar laws.
(Rhodes, "Annullment of Marriage" (1945); Charles S. Manguin,
Jr., "The Legal Status of the Negro" (1940).) Six of these states
have regarded the matter to be of such importance that they have
by constitutional enactments prohibited their legislatures from
passing any law legalizing marriage between white persons and
Negroes or mulattoes. Several states refuse to recognize such
marriages even if performed where valid (see Charles S. Manguin,
Jr., "The Legal Status of the Negro" (1940); In re Takahashi's
Estate, 113 Mont. 490 [129 P.2d 217]), particularly if an attempt
has been made by residents of a state to evade the law (Eggers v.
Olson, 104 Okla. 297 [231 P. 483]; State v. Kennedy, 76 N.C. 251
[22 Am.Rep. 683]). The infrequency of such unions is perhaps the
chief reason why prohibitive laws are not found in the remaining
states. (Reuter, "Race Mixture" (1931), p. 39; Rhodes,
"Annullment of Marriage" (1945), pp. 101, 102.)
The ban on mixed marriages in this country is traceable from the
early colonial period. For example, Maryland forbade the
practice of marriage unions between Negroes or Indians and white
persons as early as 1663. Laws forbidding marriages between
Negroes and whites were passed in Massachusetts in 1705, in
Delaware in 1721, in Virginia in 1726, {Page 748} and in North
Carolina in 1741. In 1724, it was decreed in France that no
Negro-white marriages were to take place in Louisiana. Most of
the remaining states enacted similar legislation in the period
between the formation of the United States and the Civil War.
Research has not disclosed a single case where a miscegenetic
marriage law has been declared invalid. As stated in Estate of
Monks, 48 Cal.App.2d 603, 612 [120 P.2d 167]: "Many states have
statutes prohibiting such alliances, and we have had presented no
instance of successful constitutional attacks upon them or any of
them." Not only the state courts but the federal courts as well
have uniformly sustained the validity of such laws. One of the
most recent decisions upon the subject is that of the United
States Circuit Court of Appeals for the 10th Circuit in the case
of Stevens v. United States, 146 F.2d 120, 123, decided December
18, 1944. The court there said: "Section 12 [Title 43, Oklahoma
St. 1941], making unlawful marriages between persons of African
descent and persons of other races or descents is challenged on
the ground that it violates the Fourteenth Amendment. Marriage
is a consentient covenant. It is a contract in the sense that it
is entered into by agreement of the parties. But it is more than
a civil contract between them, subject to their will and pleasure
in respect of effects, continuance, or dissolution. It is a
domestic relation having to do with the morals and civilization
of a people. It is an essential institution in every well
organized society. It affects in a vital manner public welfare,
and its control and regulation is a matter of domestic concern
within each state. A state has power to prescribe by law the age
at which persons may enter into marriage, the procedure essential
to constitute a valid marriage, the duties and obligations which
it creates, and its effect upon the property rights of both
parties. Maynard v. Hill, 125 U.S. 190 [8 S.Ct. 723, 31 L.Ed.
654]. And within the range of permissible adoption of policies
deemed to be promotive of the welfare of society as well as the
individual members thereof, a state is empowered to forbid
marriages between persons of African descent and persons of other
races or descents. Such a statute does not contravene the
Fourteenth Amendment."
In Pace v. Alabama, 106 U.S. 583 [1 S.Ct. 637, 27 L.Ed. 207], the
United States Supreme Court had before it a statute of the State
of Alabama declaring that "if any white person and any negro ...
intermarry or live in adultery or {Page 749} fornication with
each other, each of them must, on conviction, be imprisoned in
the penitentiary or sentenced to hard labor for the county for
not less than two nor more than seven years." A Negro man and
white woman had been convicted in the courts of Alabama of
fornication. Upon writ of error to the United States Supreme
Court it was contended that the statute was in conflict with the
equal protection of law clause of the United States Constitution
because greater punishment was provided than by another law
relating to the same offense committed by peoples of the same
race. The Supreme Court of the United States in upholding the
statute and affirming the judgment of conviction stated:
"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 offense 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 offense committed between persons of
different sexes; the other prescribes a punishment for
an offense which can only be committed where the two
sexes are of different races. ... Whatever discrimination
is made in the punishment prescribed in the two sections
is directed against the offense 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."
In State v. Tutty, 41 F. 753 [7 L.R.A. 50], where a statute was
held not in deprivation of rights under the federal Constitution,
it was said:
"The court will not discuss the argument of defendants'
counsel to the effect that the intermarriages of whites
and blacks do not constitute an evil or an injury against
which the state should protect itself. This is a question
which has been, as we have seen, the subject of repeated
judicial deliverances; but it is more properly, in the
opinion of this court, within the range of legislative
duty. It is enough, for the purpose of its duty, for the
court to ascertain that by a legitimate and settled
policy the state of Georgia has declared such marriages
unlawful and void; for while, in this country, the home
life of the people, their decency and their morality, are
the bases of that vast social structure of liberty, and
obedience to law, which excites the patriotic pride of
our countrymen and the admiration of the {Page 750}
world, and while these attributes of our citizenship
should be cherished and protected by all in authority,
and the creatures who defy them should be condemned by
all, the courts, in their judicial functions, are rarely
concerned with the policy of the laws which are made to
protect the community. The policy of the state upon this
subject has been declared, as we have seen, by its
supreme court as well as by its statutes, and it is
enough to say that this court is unable to discover
anything in that policy with which the federal courts
have the right or the power to interfere."
In Scott v. State of Georgia, 39 Ga. 321, the Supreme Court of
Georgia said of a provision of the state Constitution prohibiting
marriages between whites and Negroes, and declaring all such
marriages void:
"With the policy of this law we have nothing to do. It
is our duty to declare what the law is, not to make law.
For myself, however, I do not hesitate to say that it was
dictated by wise statesmanship, and has a broad and solid
foundation in enlightened policy, sustained by sound
reason and common sense. The amalgamation of the races
is not only unnatural, but is always productive of
deplorable results. ... The power of the Legislature over
the subject matter when the Code was adopted, will not,
I suppose, be questioned. The Legislature certainly had
as much right to regulate the marriage relation by
prohibiting it between persons of different races as they
had to prohibit it between persons within the Levitical
degrees, or between idiots. Both are necessary and proper
regulations. And the regulation now under consideration
is equally so."
In State v. Jackson, supra (80 Mo. 175), the Supreme Court of
Missouri reversed a judgment sustaining a demurrer to an
indictment charging a white woman with violation of a statute
making marriages between white persons and Negroes a felony. The
court said that the law might
"interfere with the tastes of negroes who want to marry
whites, or whites who wish to intermarry with negroes,
but the State has the same right to regulate marriage in
this respect that it has to forbid the intermarriage of
cousins and other blood relations. If the State desires
to preserve the purity of the African blood by
prohibiting intermarriage between whites and blacks, we
know of no power on earth to prevent such legislation.
It is a matter of purely domestic concern. The 14th
amendment to the Constitution of the United States ...
has no such scope as seems to have been accorded it by
the circuit court. ... All of one's rights as a citizen
of the United States {Page 751} will be found guaranteed
by the Constitution of the United States. If any
provision of that instrument confers upon a citizen the
right to marry any one who is willing to wed him, our
attention has not been called to it. If such be one of
the rights attached to American citizenship all our
marriage acts forbidding intermarriage between persons
within certain degrees of consanguinity are void ...
[T]he condition of a community, moral, mental and
physical, which would tolerate indiscriminate
intermarriage for several generations, would demonstrate
the wisdom of laws which regulate marriage and forbid the
intermarriage of those nearly related in blood."
The Supreme Court of Oklahoma, in Eggers v. Olson, supra (104
Okla. 297 [231 P. 483, 486]), said: "The inhibition, like the
incestuous marriage, is in the blood, and the reason for it is
stronger still." The court quoted from 18 R.C.L., section 31, p.
409, in part, as follows:
" 'Civilized society has the power of self preservation,
and, marriage being the foundation of such society, most
of the states in which the negro forms an element of any
note have enacted laws inhibiting intermarriage between
the white and black races ... Statutes forbidding
intermarriage by the white and black races were without
doubt dictated by wise statesmanship, and have a broad
and solid foundation in enlightened policy, sustained by
sound reason and common sense. The amalgamation of the
races is not only unnatural, but is always productive of
deplorable results. The purity of the public morals, the
moral and physical development of both races, and the
highest advancement of civilization, under which the two
races must work out and accomplish their destiny, all
require that they should be kept distinctly separate, and
that connections and alliances so unnatural should be
prohibited by positive law and subject to no evasion.'
"
The miscegenation law of our neighboring state of Oregon (Ore.
L., § 2163) was held valid by the Supreme Court of that state in
In re Paquet's Estate, 101 Ore. 393 [200 P. 911]. In so holding
the court directed attention to 8 R.C.L. section 381 where it is
said: "Miscegenation is a purely statutory offense, consisting in
the intermarriage of a person of the white race with a negro or
colored person. Most states in which the negro or colored people
form an appreciable element have enacted these laws inhibiting
intermarrying between the white and black races, and the offense
thereby created is usually of the grade of a felony. There can
be no doubt as {Page 752} to the power of every country to make
laws regulating the marriage of its own subjects; to declare who
may marry, how they may marry, and what shall be the legal
consequences of their marrying; and accordingly, although
miscegenation statutes have been persistently attacked on the
ground that they are violative of the United States Constitution,
they have been universally upheld as a proper exercise of the
power of each state to control its own citizens." (See also 36
Am.Jur., Miscegenation, § 3.)
The foregoing views are representative of the general tenor of
judicial opinion which has been expressed elsewhere. Without
further amplification reference may be made to cases in Arizona
(State v. Pass (1942), 59 Ariz. 16 [121 P.2d 882]; Kirby v. Kirby
(1922), 24 Ariz. 9 [206 P. 405]), in Colorado (Jackson v. City
and County of Denver (1942), 109 Colo. 196 [124 P.2d 240]), in
Montana (In re Takahashi's Estate, supra, (1942), 113 Mont. 490
[129 P.2d 217]--Japanese-White), in Alabama (Green v. State
(1877), 58 Ala. 190 [29 Am.Rep. 739]), in Virginia (Kinney v. The
Commonwealth, supra (1878), 30 Gratt. 858 [32 Am.Rep. 690]), in
Indiana (State v. Gibson (1871), 36 Ind. 389 [10 Am.Rep. 42]), in
Arkansas (Dodson v. State (1895), 61 Ark. 57 [31 S.W. 977]), in
Texas (Frasher v. State (1877), 3 Tex.App. 263 [30 Am.Rep. 131]),
in Tennessee (Lonas v. State (1871), 50 Tenn. (3 Heisk.) 287), in
Pennsylvania (Philadelphia & West Chester R. R. Co. v. Miles, 2
Am.Law Rev. 358).
The foregoing authorities form an unbroken line of judicial
support, both state and federal, for the validity of our own
legislation, and there is none to the contrary. Those
authorities appear to have passed upon all attacks on such
legislation on constitutional grounds, but notwithstanding their
unanimity it is declared by some of the majority that there is a
sort of racial discrimination which solely formed the basis for
the enactments and by another of the majority that the
constitutional guarantee of freedom of religion has been
infringed. However, it is the law that if there is some factual
background for the legislation, that circumstance forms an
appropriate reason for the enactments, and it is then proper to
consider the rules of law which govern the courts in that
connection.
In passing upon the validity of any statutory enactment the power
of the courts is not unlimited. It is circumscribed by well
recognized rules, some of which as applicable to the {Page 753}
case are: that all presumptions and intendments are in favor of
the constitutionality of a statute; that all doubts are to be
resolved in favor of and not against the validity of a statute;
that before an act of a coordinate branch of our government can
be declared invalid by the courts for the reason that it is in
conflict with the Constitution, such conflict must be clear,
positive and unquestionable; that in the case of any fair,
reasonable doubt of its constitutionality the statute should be
upheld, and the doubt be resolved in favor of the expressed will
of the Legislature; that it is also to be presumed that the
Legislature acted with integrity and with a purpose to keep
within the restrictions and limitations laid down in the
fundamental law; that when the constitutionality of a statute
depends on the existence of some fact or state of facts, the
determination thereof is primarily for the Legislature and the
courts will acquiesce therein unless the contrary clearly
appears; that the enactment of the statute implies, and the
conclusive presumption is, that the Governor and the members of
the Legislature have performed their duty, and have ascertained
the existence of facts justifying or requiring the legislation;
that this is true even in the absence of an express finding of
those facts embodied in the act; and that the courts may not
question or review the legislative determination of the facts.
(5 Cal.Jur., p. 628 et seq., and the many cases there cited.)
These presumptions apply with particular emphasis to statutes
passed in the exercise of the police power (11 Am.Jur., p. 1088,
and many cases cited).
A recent statement by this court recognizes the general rule. In
In re Porterfield, 28 Cal.2d 91, 103 [168 P.2d 706, 167 A.L.R.
675], with supporting authorities, it is said: "Constitutionality
of purpose and application is generally to be presumed. It has
often been said that it is only when it clearly appears that an
ordinance or statute passes definitely beyond the limits which
bound the police power and infringes upon rights secured by the
fundamental law, that it should be declared void."
Pertinent to the immediate question is Galeener v. Honeycutt, 173
Cal. 100, 104 [159 P. 595]. This court there approved the
doctrine announced in earlier cases. It was said that it had
never since been questioned that, when the right to enact a law
depends upon the existence of a fact, the passage of the act
implies, and the conclusive presumption is, that the {Page 754}
existence of the fact has been ascertained by the legislative
body. (See also In re Spencer, 149 Cal. 396, 400 [86 P. 896, 117
Am.St.Rep. 137, 9 Ann.Cas. 1105]; Martin v. Superior Court, 194
Cal. 93, 101 [227 P. 762]; Pacific Gas & Elec. Co. v. Moore, 37
Cal.App.2d 91, 95 [98 P.2d 819].)
It is not within the province of the courts to go behind the
findings of the Legislature and determine that conditions did not
exist which gave rise to and justified the enactment. Only when,
beyond reasonable doubt, all rational men would agree that the
factual background did not warrant the enactment of a statute
which was ostensibly designed to preserve the general welfare can
we say that a statute is arbitrary and capricious. (In re
Miller, 162 Cal. 687 [124 P. 427]; People v. George, 42
Cal.App.2d 568 [109 P.2d 404].) It is a well settled rule of
constitutional exposition, that if a statute may or may not be,
according to the circumstances, within the limits of legislative
authority, the existence of the circumstances necessary to
support it must be presumed. (Sweet v. Rechel, 159 U.S. 380, 393
[16 S.Ct. 43, 40 L.Ed. 188].) When a question of fact is debated
and debatable, and the extent to which a special constitutional
limitation should be applied is under consideration, the
conclusion may properly be influenced by a widespread and long
continued belief concerning it, and this is within judicial
cognizance. (Muller v. Oregon, 208 U.S. 412, 421 [28 S.Ct. 324,
52 L.Ed. 551].)
The Legislature is, in the first instance, the judge of what is
necessary for the public welfare. Earnest conflict of opinion
makes it especially a question for the Legislature and not for
the courts. (Erie R. R. Co. v. Williams, 233 U.S. 685, 699, 701
[34 S.Ct. 761, 58 L.Ed. 1155], citing other cases.)
"It is established that a distinction in legislation is
not arbitrary, if any state of facts reasonably can be
conceived that would sustain it, and the existence of
that state of facts at the time the law was enacted must
be assumed. ... It makes no difference that the facts may
be disputed or their effect opposed by argument and
opinion of serious strength. It is not within the
competency of the courts to arbitrate in such
contrariety. ... And it is not required that we ... be
convinced of the wisdom of the legislation."
(Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 365-366 [36
S.Ct. 370, 60 L.Ed. 679], citing cases.)
"We need not labor the point, long settled, that where
legislative action is within the scope of the police
power, fairly debatable questions as to its
reasonableness, wisdom and propriety are not for the
determination of the courts, but {Page 755} for that of
the legislative body on which rests the duty and
responsibility of decision. ... We may not test in the
balances of judicial review the weight and sufficiency
of the facts to sustain the conclusion of the legislative
body ..."
(Standard Oil Co. v. Marysville, 279 U.S. 582, 584, 586 [49 S.Ct.
430, 73 L.Ed. 856], and cited cases.) Underlying questions of fact
which may condition the constitutionality of legislation carry with
them the presumption of constitutionality in the absence of some
factual foundation of record for overthrowing the statute.
(O'Gorman & Young v. Hartford F. Ins. Co., 282 U.S. 251, 257-258
[51 S.Ct. 130, 75 L.Ed. 324].)
Again the United States Supreme Court has reiterated in Borden's
F. P. Co. v. Baldwin, 293 U.S. 194, at page 209 [55 S.Ct. 187, 79
L.Ed. 281]:
"When the classification made by the legislature is
called in question, if any state of facts reasonably can
be conceived that would sustain it, there is a
presumption of the existence of that state of facts, and
one who assails the classification must carry the burden
of showing by a resort to common knowledge or other
matters which may be judicially noticed, or to other
legitimate proof, that the action is arbitrary. ... The
principle that the State has a broad discretion in
classification, in the exercise of its power of
regulation, is constantly recognized by this Court."
(People v. Western Fruit Growers, 22 Cal.2d 494, 506-508 [140
P.2d 13]; Western U. Tel. Co. v. Hopkins, 160 Cal. 106, 122 [116
P. 557]; Postal Tel. Cable Co. v. County of Los Angeles, 160 Cal.
129 [116 P. 566].) Whether the legislation is wise or unwise as
a matter of policy is a question with which the courts are not
concerned. (Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398,
447-448 [54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481].)
Courts are neither peculiarly qualified nor organized to
determine the underlying questions of fact with reference to
which the validity of the legislation must be determined.
Differing ideas of public policy do not properly concern them.
The courts have no power to determine the merits of conflicting
theories, to conduct an investigation of facts bearing upon
questions of public policy or expediency, or to sustain or
frustrate the legislation according to whether they happen to
approve or disapprove the legislative determination of such
questions of fact. (Norman v. Baltimore & O. R. Co., 294 U.S.
240 [55 S.Ct. 407, 79 L.Ed. 885, 95 A.L.R. 1352], affirming 265
N.Y. 37 [191 N.E. 726, 92 A.L.R. 1523]; 11 Am.Jur. pp. 823, 824,
and cases cited; see article, "Judicial {Page 756} Determination
of Questions of Fact Affecting the Constitutional Validity of
Legislative Action," 38 Harv.L.Rev. 6.) The fact that the
finding of the Legislature is in favor of the truth of one side
of a matter as to which there is still room for difference of
opinion is not material. What the people's legislative
representatives believe to be for the public good must be
accepted as tending to promote the public welfare. It has been
said that any other basis would conflict with the spirit of the
Constitution and would sanction measures opposed to a republican
form of government. (Atlantic Coast Line R. Co. v. Georgia, 234
U.S. 280 [34 S.Ct. 829, 58 L.Ed. 1312]; Viemeister v. White, 179
N.Y. 235 [72 N.E. 97, 103 Am.St.Rep. 859, 1 Ann.Cas. 334, 70
L.R.A. 796]; State ex rel. Sullivan v. Dammann, 227 Wis. 72 [277
N.W. 687]; Stettler v. O'Hara, 69 Ore. 519 [139 P. 743, Ann.Cas.
1916A 217, L.R.A. 1917C 944], affirmed 243 U.S. 629 [37 S.Ct.
475, 61 L.Ed. 937].)
Text and authorities which constitute the factual basis for the
legislative finding involved in the statute here in question
indicate only that there is a difference of opinion as to the
wisdom of the policy underlying the enactments.
Some of the factual considerations which the Legislature could
have taken into consideration are disclosed by an examination of
the sources of information on the biological and sociological
phases of the problem and which may be said to form a background
for the legislation and support the reasoning found in the
decisions of the courts upholding similar statutes. A reference
to a few of those sources of information will suffice.
On the biological phase there is authority for the conclusion
that the crossing of the primary races leads gradually to
retrogression and to eventual extinction of the resultant type
unless it is fortified by reunion with the parent stock. (W. A.
Dixon, M. D., Journal of American Medical Association, vol. 20,
p. 1 (1893); Frederick L. Hoffman, statistician, Prudential Life
Insurance Co. of America, American Economics Association, vol. 11
(1896) "Race Traits and Tendencies of the American Negro"; C. E.
Woodruff, "The Expansion of Races" (1909).) In September, 1927,
in an article entitled, "Race Mixture," which appeared in
"Science," volume 66, page X, Dr. Charles B. Davenport of the
Carnegie Foundation of Washington, Department of Experimental
Evolution, said: "In the absence of any uniform rule as to
consequences of race crosses, it is well to discourage it except
in those cases where, as {Page 757} in the Hawaiian-Chinese
crosses, it clearly produces superior progeny," and that the
Negro-white and Filipino-European crosses do not seem to fall
within the exception.
In volume 19 of the Encyclopedia Americana (1924), page 275, it
is said:
"The results of racial intermarriage have been
exceedingly variable. Sometimes it has produced a better
race. This is the case when the crossing has been between
different but closely allied stocks. ... Prof. U. G.
Weatherly writes: 'It is an unquestionable fact that the
yellow, as well as the negroid peoples possess many
desirable qualities in which the whites are deficient.
From this it has been argued that it would be
advantageous if all races were blended into a universal
type embodying the excellencies of each. But scientific
breeders have long ago demonstrated that the most
desirable results are secured by specializing types
rather than by merging them.
"'The color line is evidence of an attempt, based on
instinctive choice, to preserve those distinctive values
which a racial group has come to regard as of the highest
moment to itself.'"
In an address before the Commonwealth Club of California on July
9, 1948, Mr. William Gemmill, South African delegate to the
International Labor Organization and one well acquainted with
social conditions and sociological manifestations in that
continent, made the statement that in South Africa, where the
European population is greatly outnumbered by the natives, both
classes are adamant in opposition to intermarriage and that the
free mixing of all the races could in fact only lower the general
level.
A collection of data and references on the result of
miscegenation is found in "The Menace of Color" (1925) by J. W.
Gregory (F.R.S., D.Sc., Professor of Geology in the University of
Glasgow). On page 227 he says that the intermixtures which have
been beneficial to the progress of mankind have been between
nearly related peoples and that the results of a mixture of
widely divergent stock serve to warn against the miscegenation of
distinct races. Dr. J. A. Mjoen of the Winderen Laboratory,
Norway, is credited by Professor Gregory (at p. 229) with the
conclusion from special studies that the evidence is sufficient
to call for immediate action against the intermarriage of widely
distinct races. Gregory states that where two such races are in
contact the inferior qualities are not bred out, but may be
emphasized in the progeny, a principle widely expressed in modern
eugenic literature. Similar views asserting {Page 758} the
unfortunate results of crossings between dissimilar races,
including the American Negro-white, are ascribed by the author to
Prof. H. Lundborg (1922); E. D. Cope, American geologist; Elwang
(1904); Prof. N. S. Shaler (1904); Emile Gaboriau and Gustav Le
Bon, France; F. L. Hoffman of the Prudential Insurance Co. of
America (1923); Prof. A. E. Jenks; and Herbert Spencer (1892).
In March, 1926, the Carnegie Institution of Washington, D. C.,
accepted a gift from one who expressed his interest in the
problem of race crossing with special reference to its
significance for the future of any country containing a mixed
population. The work was undertaken by the Department of
Genetics, Carnegie Institution. An advisory committee was
organized consisting of W. V. Bingham, Charles B. Davenport, E.
L. Thorndike, and Clark Wissler. Mr. Morris Steggerda was
selected as field investigator. Mr. Steggerda had had excellent
training in genetics and psychology, and had shown a marked
fitness for the study and analysis of the individual. The main
project was carried out in Jamaica, B.W.I., by studying in detail
and comparatively, 100 each of adults of full-blooded Negroes
(Blacks), Europeans (Whites), and White-Black mixtures of all
degrees (Brown). Half of the hundred were of each sex. In
addition to the main project some 1,200 children of school and
preschool age were observed and measured. Finally in 1929, an
extensive report was published by the Carnegie Institution, in
book form entitled "Race Crossing in Jamaica," by B. C. Davenport
and Morris Steggerda, in collaboration with others. The results
of their investigation indicated that the crossing of distinct
races is biologically undesirable and should be discouraged.
W. E. Castle, Bussey Institution, Harvard University, in an
article entitled "Biological and Social Consequences of Race
Crossing," printed in volume 9, American Journal of Physical
Anthropology (April, 1926), states on page 152: "If all
inheritance of human traits were simple Mendelian inheritance,
and natural selections were unlimited in its action among human
populations, then unrestricted racial intercrossing might be
recommended. But in the light of our present knowledge, few
would recommend it. For, in the first place, much that is best
in human existence is a matter of social inheritance, not of
biological inheritance. Race crossings disturb social
inheritance. That is one of its worst features." This then leads
to a consideration of the sociological phase.
{Page 759}
The writings of Father John La Farge, S. J., are typical of many
who have considered the subject of race-crosses from a
sociological standpoint. Reference has been made to his work
"The Race Question and the Negro" (1943). Under the heading "The
Moral Aspect," he writes:
"[T]here are grave reasons against any general practice
of intermarriage between the members of different racial
groups. These reasons, where clearly verified, amount
to a moral prohibition of such a practice.
"These arise from the great difference of condition which
is usually experienced by the members of the respective
groups. It is not merely a difference of poverty or
riches, of lesser or greater political power, but the
fact that identification with the given group is far-
reaching and affects innumerable aspects of ordinary
daily life. ...
"Where marriage is contracted by entire solitaries, such
an interracial tension is more easily borne, but few
persons matrimonially inclined are solitaries. They bring
with them into the orbit of married life their parents
and brothers and sisters and uncles and aunts and the
entire social circle in which they revolve. All of these
are affected by the social tension, which in turn reacts
upon the peace and unity of the marriage bond.
"When children enter the scene the difficulty is further
complicated unless a complete and entirely self-
sacrificing understanding has been reached beforehand.
And even then the social effects may be beyond their
control. ...
"In point of facts as the Negro group becomes culturally
advanced, there appears no corresponding tendency to seek
intermarriage with other races."
The foregoing excerpts from scientific articles and legal
authorities make it clear that there is not only some but a great
deal of evidence to support the legislative determination (last
made by our Legislature in 1933) that intermarriage between
Negroes and white persons is incompatible with the general
welfare and therefore a proper subject for regulation under the
police power. There may be some who maintain that there does not
exist adequate data on a sufficiently large scale to enable a
decision to be made as to the effects of the original admixture
of white and Negro blood. However, legislators are not required
to wait upon the completion of scientific research to determine
whether the underlying facts carry sufficient weight to more
fully sustain the regulation.
{Page 760}
A review of the subject indicates that the statutory
classification was determined by the Legislature in the light of
all the circumstances and requirements (see also California
Physicians' Service v. Garrison, 28 Cal.2d 790, 802 [172 P.2d 4,
167 A.L.R. 306]; Livingston v. Robinson, 10 Cal.2d 730 [76 P.2d
1192]); that under our tripartite system of government this court
may not substitute its judgment for that of the Legislature as to
the necessity for the enactment where it was, as here, based upon
existing conditions and scientific data and belief; that even in
the field of fundamental rights it has always been recognized
that where the Legislature has appraised a particular situation
and found a specific condition sufficiently important to justify
regulation, such determination is given great weight when the law
is challenged on constitutional grounds.
Those favoring present day amalgamation of these distinct races
irrespective of scientific data of a cautionary nature based upon
the experience of others, or who feel that a supposed infrequency
of interracial unions will minimize undesirable consequences to
the point that would justify lifting the prohibition upon such
unions, should direct their efforts to the Legislature in order
to effect the change in state policy which they espouse--as was
done in Massachusetts in 1843, Kansas in 1859, New Mexico in
1866, Washington in 1868, Rhode Island in 1881, Minnesota and
Michigan in 1883, and Ohio in 1887.
The contention is also advanced that the statute must fall before
the equal protection clause of the Fourteenth Amendment because
of lack of a sufficient showing of clear and present danger
arising out of an emergency. The cases relied upon are Oyama v.
California, 332 U.S. 633 [68 S.Ct. 269, 92 L.Ed. 249]; Sipuel v.
Board of Regents, 332 U.S. 631 [68 S.Ct. 299, 92 L.Ed. ___];
Railway Mail Assn. v. Corsi, 326 U.S. 88 [65 S.Ct. 1483, 89 L.Ed.
2072]; Hirabayashi v. United States, 320 U.S. 81 [63 S.Ct. 1375,
87 L.Ed. 1774]; Missouri ex rel. Gaines v. Canada, supra, 305
U.S. 337; Williams v. International etc. of Boilermakers, 27
Cal.2d 586 [165 P.2d 903]; and James v. Marinship Corp., 25
Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900] (see also Shelley v.
Kraemer and McGhee v. Sipes, 334 U.S. 1 [68 S.Ct. 836, 92 L.Ed.
1161]; Hurd v. Hodge, 334 U.S. 24 [68 S.Ct. 847, 92 L.Ed. 1187]).
These cases, in general, hold that legislation discriminating
against particular persons, or groups of persons because of race,
must have exceptional circumstances or some {Page 761} compelling
necessity as the source of enactment. These cases have been
analyzed. They have widely divergent factual backgrounds and are
not controlling. Here there is no lack of equal treatment.
Sections 60 and 69 of our Civil Code do not discriminate against
persons of either the white or Negro races. (Pace v. Alabama,
supra, 106 U.S. 583; Jackson v. City and County of Denver, supra,
109 Colo. 196 [124 P.2d 240]; In re Paquet's Estate, supra, 101
Ore. 393 [200 P. 911].) Each petitioner has the right and the
privilege of marrying within his or her own group. The
regulation does not rest solely upon a difference in race. The
question is not merely one of difference, nor of superiority or
inferiority, but of consequence and result. The underlying
factors that constitute justification for laws against
miscegenation closely parallel those which sustain the validity
of prohibitions against incest and incestuous marriages (Pen.
Code, § 285; Civ. Code, § 59; 42 C.J.S., Incest, § 1), and bigamy
(Pen. Code, § 281; Civ. Code, § 61; Davis v. Beason, supra, 133
U.S. 333; Reynolds v. United States, supra, 98 U.S. 145).
Moreover the argument based upon equal protection does not take
into proper account the extensive control the state has always
exercised over the marriage contract, nor of the further fact
that at the very time the Constitution of the United States was
being formulated miscegenation was considered inimical to the
public good and was frowned upon by the colonies, and continued
to be so regarded and prohibited in states having any substantial
admixture of population at the time the Fourteenth Amendment was
adopted. In view of this fact, and the unanimity of judicial
decision sustaining such statutes, it seems impossible to believe
that any constitutional guaranty was intended to prohibit this
legislation.
It has been suggested that sections 60 and 69 of the Civil Code
are unconstitutional because not sufficiently comprehensive.
More specifically it is said that such legislation does not
preclude the possibility of progeny as a result of purported
marriages entered into by persons who have concealed or failed to
disclose their racial origin, nor the possibility of illegitimate
progeny of mixed matings or of issue from such racially mixed
marriages validly contracted in other states by residents of this
state. However it is definitely established that the states, in
seeking a remedy, are not required to extend regulation to all
cases which might possibly be reached. (Radice v. New York,
supra, 264 U.S. 292.) "They {Page 762} may mark and set apart
the classes and types of problems according to the needs and as
dictated or suggested by experience." (Skinner v. Oklahoma, 316
U.S. 535, 540 [62 S.Ct. 1110, 86 L.Ed. 1655]; Bryant v.
Zimmerman, 278 U.S. 63 [49 S.Ct. 61, 73 L.Ed. 184].) The equal
protection clause does not prevent the Legislature from
recognizing "degrees of evil." (Tigner v. Texas, 310 U.S. 141
[60 S.Ct. 879, 84 L.Ed. 1124]; Truax v. Raich, 239 U.S. 33 [36
S.Ct. 7, 60 L.Ed. 131].) Nor is the Legislature prevented by the
equal protection clause from confining "its restrictions to those
classes of cases where the need is deemed to be clearest."
(Miller v. Wilson, 236 U.S. 373, 384 [35 S.Ct. 342, 59 L.Ed.
628].) "[W]here a given situation admittedly presents a proper
field for the exercise of the police power the extent of its
invocation and application is a matter which lies very largely in
legislative discretion." (Zahn v. Board of Public Works, 195 Cal.
497, 514 [234 P. 388].) The need for prohibiting all miscegeny,
together with administrative impracticalities inherent in any
such attempt, were proper matters for the Legislature to
consider. And the fact, if it be a fact, that some people
contract such marriages within this state illegally, or others
contract such marriages validly outside the state and
subsequently reside here, does not lend support to any contention
of unconstitutionality of the statute.
Finally, it is argued that sections 60 and 69 are too vague and
uncertain to constitute valid regulation in that they lack
definitions of descriptive terms, such as mulatto, and are
uncertain as to the mode of proof of race. After almost 100
years of continuous operation of the present and preexisting
similar laws, the claimed obstacles to the application of the
statute are more theoretical than real. In any event the
contention is not a matter for consideration in this proceeding.
In the application for a marriage license the petitioner Perez
states that she is a white person and the petitioner Davis states
that he is a Negro. The petition for the writ contains
allegations of the same facts. There is therefore no
indefiniteness in the code sections that can avail the
petitioners; nor is there here any problem of proof. It is the
well-established rule that a charge of unconstitutionality can be
raised only in a case where that issue is involved in the
determination of the action, and then only by the person or a
member of the class of persons adversely affected. (American
Fruit Growers v. Parker, 22 Cal.2d 513 [140 P.2d 23]; In re
Willing, 12 Cal.2d 591, 597 [86 P.2d 663]; Max {Page 763} Factor
& Co. v. Kunsman, 5 Cal.2d 446 [55 P.2d 177]; People v. Globe
Grain & Mill. Co., 211 Cal. 121 [294 P. 3]; A. F. Estabrook Co.
v. Industrial Acc. Com., 177 Cal. 767 [177 P. 848]; Estate of
Monks, supra, 48 Cal.App.2d 603, 610-612, involving the
miscegenation law of Arizona--see also Kirby v. Kirby, supra, 24
Ariz. 9 [206 P. 405]; and State v. Pass, supra, 59 Ariz. 16 [121
P.2d 882]--Jackson v. City and County of Denver, supra, 109 Colo.
196 [124 P.2d 240], involving a miscegenation statute of that
state.) Here there is no possible uncertainty in the statute as
applied to the petitioners.
The alternative writ should be discharged and the peremptory writ
denied.
Schauer, J., and Spence, J., concurred.
______________________________________________________________
FOOTNOTES:
Fn 1. See also the concurring opinion of Jackson, J.,
indicating that sterilization of criminals as a biological
experiment might be invalid: "There are limits to the extent to
which a legislatively represented majority may conduct biological
experiments at the expense of the dignity and personality and
natural powers of a minority--even those who have been guilty of
what the majority define as crimes. But this Act falls down
before reaching this problem, which I mention only to avoid the
implication that such a question may not exist because not
discussed. On it I would also reserve judgment." (316 U.S. 546-
547; see 51 Yale L.J. 1380.)
Fn 2. Respondent refers to the following language in State v.
Jackson, 80 Mo. 175, 179 [50 Am.Rep. 499], although stating that
"we have not found any other statement to bear out the biological
claims" therein: "It is stated as a well authenticated fact that
if the issue of a black man and a white woman, and a white man
and a black woman intermarry, they cannot possibly have any
progeny, and such a fact sufficiently justifies those laws which
forbid the intermarriage of blacks and whites, laying out of view
other sufficient grounds for such enactments."
Fn 3. See, Castle, Biological and Sociological Consequences
of Race Crossing, 9 Am. J. of Physical Anthropology, pp. 145,
152-153; Linton, Sterling Professor Anthropology, Yale Univ. and
President of the American Anthropological Association, 64
Am.Merc. p. 133 (February 1947).
Fn 4. Between 1930 and 1939 in California deaths resulted
most frequently from diseases of the circulatory system,
particularly heart diseases. These diseases were most prevalent
among white persons, not including Mexicans, with the exception
of Chinese, who slightly exceeded white persons. The second most
important cause of death was cancer; here, white persons exceeded
all others without exception. Tuberculosis, an important cause
of death, occurs with greater frequency among Negroes than among
white persons, not including Mexicans; but Mexicans, Indians,
Chinese and Malays have materially higher death rates owing to
tuberculosis than Negroes and Japanese. Diseases of the nervous
system occur with less frequency among Indians, Japanese,
Mexicans, and Malays than among white persons, Negroes, and
Chinese. (The Population of California, Commonwealth Club of
California Research Service (1946) pp. 217 et seq.)
Respondent's contention that fertility of Negroes and mulattoes
is low is questionable. (See note 3, supra) Dr. S. J. Holmes
(1937) The Negro's Struggle for Survival, p. 176, states: "The
fact is that we have not adequate data on a sufficiently large
scale to enable us to decide how the mixed origin of the mulatto
affects fertility, if it affects it at all." Although Negro
fertility rates are generally lower than those of white persons,
other non-whites far exceed whites in birth rate. Further, the
fertility rate of Rural-farm Negroes exceeds that of Rural-farm
whites. Scientists give various interpretations of statistics on
fertility, analyzing them in the light of environmental as well
as hereditary factors. (Population of California, supra, pp. 212
et seq.; see I Myrdal, p. 134, ch. 7.)
Fn 5. See, I Myrdal, pp. 140-144; S. J. Holmes, The Negro's
Struggle for Survival, p. 130.
Respondent contends, however, that there is a racial ailment
among Negroes known as sickle-cell anemia. According to the
Cyclopedia of Medicine, Surgery and Obstetrics (1946) Vol. 2, p.
746, quoted by respondent, "Statistical studies indicate that 7
to 8 per cent of Negroes show the sickle-cell trait, though not
necessarily suffering from sickle-cell anemia." Assuming that the
sickle-cell trait is found only in Negroes, despite known
extensive intermixture of the races, respondent has shown only
the trait and not the prevalence of sickle-cell anemia. Civil
Code section 79.01, which requires a premarital blood test, makes
no provision for a report on sickle-cell anemia.
Fn 6. See, I Myrdal, pp. 147- 148: "These negative
conclusions from many decades of the most painstaking scientific
labor stand in glaring contrast to the ordinary white American's
firm conviction that there are fundamental psychic differences
between Negroes and whites. The reason for this contrast is not
so much that the ordinary white American has made an error in
observation, for most studies of intelligence show that the
average Negro in the sample, if judged by performance on the
test, is inferior to the average white person in the sample, and
some studies show that the average Negro has certain specific
personality differences from the white man, but that he has made
an error in inferring that observed differences were innate and a
part of 'nature.' He has not been able to discern the influence
of gross environmental differences, much less the influence of
more subtle life experiences. The fact should not be ignored,
however, that he has also made many observational errors, because
his observations have been limited and biased." See, also, Ralph
Linton, Sterling Professor of Anthropology, Yale University, 64
Am.Merc. pp. 133, 139; Joseph Peterson & Lyle H. Lanier, Studies
in the Comparative Abilities of Whites and Negroes, No. 5, Mental
Measurement Monographs (1929); Otto Klineberg, A Study of
Psychological Differences Between "Racial" and National Groups in
Europe, Archives of Psychology, No. 132, vol. XX, (1931); Thomas
Russell Garth (1931) Race Psychology, A Study of Racial Mental
Differences; I Myrdal, pp. 144-153; Otto Klineberg, (1935) Negro
Intelligence and Selective Migration; Ruth Benedict (1943) Race:
Science and Politics, pp. 98-147.
Fn 7. Indeed, Father John La Farge, S. J. (1943) The Race
Question and The Negro (Permissu Superiorum), p. 196, considers
the tensions "not unlike."
Fn 8. See, M. J. Herskovits (1930) The Anthropometry of the
American Negro; E. B. Reuter (1931) Race Mixture; I Myrdal, Pp.
132-133, 1360-1361.
Fn 8a. See Julian S. Huxley and H. C. Haddon (1936) We
Europeans, A Survey of "Racial" Problems, 1-15, 82, 106, 115-
131, 215- 236.
Fn 9. Black's Law Dictionary (3d ed.) defines a mulatto as
"A person that is the offspring of a negress by a white
man, or of a white woman by a negro. ... In a more
general sense, a person of mixed Caucasian and negro
blood, or Indian and Negro blood. ... Properly a mulatto
is a person one of whose parents is wholly black and the
other wholly white; but the word does not always, though
perhaps it does generally, require so exactly even a
mixture of blood, nor is its signification alike in all
the states. ..."
The same source defines a Negro as follows:
"The word 'negro' means a black man, one descended from
the African race, and does not commonly include a
mulatto. ... But the laws of the different states are not
uniform in this respect, some including in the
description 'negro' one who has one-eighth or more of
African blood. Term 'negro' means necessarily person of
color, but not every person of color is a 'negro'."
The foregoing definitions of "Mulatto" and "Negro" are
substantially the same as the definitions contained in Bouvier's
Law Dictionary.
See also I Myrdal, An American Dilemma, p. 113:
"Legislation in this respect tends to conform to social
usage, although often it is not so exclusive. In some
states one Negro grandparent defines a person as a Negro
for legal purposes, in other states any Negro
ancestor--no matter how far removed--is sufficient. In
the Southern states definitions of who is a Negro are
often conflicting. Since reconstruction, there has been
a tendency to broaden the definition. The Northeastern
states generally have no definition of Negro in law."
Reproduced by George A. Winkel, Esq. gwinkel@ivic.net