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COUNSEL: Daniel G. Marshall for Petitioners. Harold W. Kennedy, County Counsel (Los Angeles), and Charles C. Stanley, Jr., Deputy County Counsel, for Respondent.<\/p>\n
{Page 712 of 52}\r\nOPINION (the Court in bank)\r\nTRAYNOR, J.\r\n\r\nIn this proceeding in mandamus, petitioners seek to compel the County Clerk of Los Angeles County to issue them a certificate of registry (Civ. Code, \u00a7 69a) and a license to marry. (Civ. Code, \u00a7 69.) In the application for a license, petitioner Andrea Perez\r\nstates 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\r\nlicense may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.\"\r\n\r\nCivil 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\r\nmarriages 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.)\r\n\r\nPetitioners contend that the statutes in question are\r\nunconstitutional 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\r\nCaucasians, they are entitled to receive the sacrament of matrimony.\r\n\r\nThe 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<\/i> v. Connecticut<\/i>, 310 U.S. 296, 303 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].) They may,\r\nhowever, regulate conduct for the protection of society, and\r\ninsofar as their regulations are directed towards a proper end and\r\nare not unreasonably discriminatory, they may indirectly affect\r\nreligious activity without infringing the constitutional guarantee.\r\nAlthough freedom of conscience and the freedom to believe are\r\nabsolute, the freedom to act is not. (Cantwell<\/i> v. Connecticut<\/i>,\r\nsupra<\/i>, at pp. 303-304.)\r\n\r\nThe regulation of marriage is considered a proper function of the\r\nstate. It is well settled that a legislature may declare monogamy\r\nto be the \"law of social life under its dominion,\" even though such\r\na law might inhibit the free exercise of certain religious\r\npractices. (Reynolds<\/i> v. United States<\/i>, 98 U.S. 145, 166 [25 L.Ed.\r\n244]; Davis<\/i> v. Beason<\/i>, 133 U.S. 333, 343 [10 S.Ct. 299, 33 L.Ed.\r\n637].) If the miscegenation law under attack in the present\r\nproceeding is directed at a social evil and employs a reasonable\r\nmeans to prevent that evil, it is valid regardless of its\r\nincidental effect upon the conduct of particular religious groups.\r\nIf, on the other hand, the law is discriminatory and irrational,\r\n{Page 714} it unconstitutionally restricts not only religious\r\nliberty but the liberty to marry as well.\r\n\r\nThe due process clause of the Fourteenth Amendment protects an area\r\nof personal liberty not yet wholly delimited. \"While this Court has\r\nnot attempted to define with exactness the liberty thus guaranteed,\r\nthe term has received much consideration and some of the included\r\nthings have been definitely stated. Without doubt, it denotes not\r\nmerely freedom from bodily restraint, but also the right of the\r\nindividual to contract, to engage in any of the common occupations\r\nof life, to acquire useful knowledge, to marry<\/i>, establish a home\r\nand bring up children, to worship God according to the dictates of\r\nhis own conscience, and, generally, to enjoy those privileges long\r\nrecognized at common law as essential to the orderly pursuit of\r\nhappiness by free men.\" (Italics added; Meyer<\/i> v. Nebraska<\/i>, 262 U.S.\r\n390, 399 [43 S.Ct. 625, 67 L.Ed. 1042].) Marriage is thus\r\nsomething more than a civil contract subject to regulation by the\r\nstate; it is a fundamental right of free men. There can be no\r\nprohibition of marriage except for an important social objective\r\nand by reasonable means.\r\n\r\nNo law within the broad areas of state interest may be unreasonably\r\ndiscriminatory or arbitrary. The state's interest in public\r\neducation, for example, does not empower the Legislature to compel\r\nschool children to receive instruction from public teachers only,\r\nfor it would thereby take away the right of parents to \"direct the\r\nupbringing and education of children under their control.\" (Pierce<\/i>\r\nv. Society of Sisters<\/a>, 268 U.S. 510, 534-535 [45 S.Ct. 571, 69\r\nL.Ed. 1070, 39 A.L.R. 468].) Again, the state's vital concern in\r\nthe prevention of crime and the mental health of its citizens does\r\nnot empower the Legislature to deprive \"individuals of a right\r\nwhich is basic to the perpetuation of a race--the right to have\r\noffspring\" by authorizing the sterilization of criminals upon an\r\narbitrary basis of classification and without a fair hearing.\r\n(Skinner<\/i> v. Oklahoma<\/i>, 316 U.S. 535, 536 [62 S.Ct. 1110, 86 L.Ed.\r\n1655].){fn.1<\/a>}\r\n\r\n{Page 715}\r\nThe right to marry is as fundamental as the right to send one's\r\nchild to a particular school or the right to have offspring.\r\nIndeed, \"We are dealing here with legislation which involves one\r\nof the basic civil rights of man. Marriage and procreation are\r\nfundamental to the very existence and survival of the race.\"\r\n(Skinner<\/i> v. Oklahoma<\/i>, supra<\/i>, at p. 541.) Legislation infringing\r\nsuch rights must be based upon more than prejudice and must be free\r\nfrom oppressive discrimination to comply with the constitutional\r\nrequirements of due process and equal protection of the laws.\r\n\r\n I\r\nSince the right to marry is the right to join in marriage with the\r\nperson of one's choice, a statute that prohibits an individual from\r\nmarrying a member of a race other than his own restricts the scope\r\nof his choice and thereby restricts his right to marry. It must\r\ntherefore be determined whether the state can restrict that right\r\non the basis of race alone without violating the equal protection\r\nof the laws clause of the United States Constitution.\r\n \"Distinctions between citizens solely because of their\r\n ancestry are by their very nature odious to a free people\r\n whose institutions are founded upon the doctrine of\r\n equality. For that reason, legislative classification or\r\n discrimination based on race alone has often been held\r\n to be a denial of equal protection. Yick Wo<\/i> v. Hopkins<\/i>,\r\n 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]; Yu Cong Eng<\/i>\r\n v. Trinidad<\/i>, 271 U.S. 500 [46 S.Ct. 619, 70 L.Ed. 1059];\r\n Hill<\/i> v. Texas<\/i>, 316 U.S. 400 [62 S.Ct. 1159, 86 L.Ed.\r\n 1559].\"\r\n(Hirabayashi<\/i> v. United States<\/i>, 320 U.S. 81, 100 [63 S.Ct. 1375,\r\n87 L.Ed. 1774].) In the Hirabayashi<\/i> case the United States\r\nSupreme Court held that despite the fact that under the\r\nConstitution of the United States \"racial discriminations are in\r\nmost circumstances irrelevant and therefore prohibited, it by no\r\nmeans follows that, in dealing with the perils of war, Congress\r\nand the Executive are wholly precluded from taking into account\r\nthose facts and circumstances which are relevant to measures for\r\nour national defense and for the successful prosecution of the\r\nwar, and which may in fact place citizens of one ancestry in a\r\ndifferent category from others. ... The adoption by Government,\r\nin the crisis of war and of threatened invasion, of measures for\r\nthe public safety, based upon the recognition of facts and\r\ncircumstances which indicate that a group of one national\r\nextraction {Page 716} may menace that safety more than others, is\r\nnot wholly beyond the limits of the Constitution and is not to be\r\ncondemned merely because in other and in most circumstances\r\nracial distinctions are irrelevant. ... The fact alone that\r\nattack on our shores was threatened by Japan rather than another\r\nenemy power set these citizens apart from others who have no\r\nparticular association with Japan.\" (320 U.S. 81, 100-101.)\r\nWhether or not a state could base similar measures on the peril\r\ncaused by a national emergency in the face of the equal\r\nprotection of the laws clause of the United States Constitution,\r\nwhich does not apply to the federal government, it clearly could\r\nnot make such a distinction based on ancestry in the absence of\r\nan emergency.\r\n\r\nA state law prohibiting members of one race from marrying members\r\nof another race is not designed to meet a clear and present peril\r\narising out of an emergency. In the absence of an emergency the\r\nstate clearly cannot base a law impairing fundamental rights of\r\nindividuals on general assumptions as to traits of racial groups.\r\nIt has been said that a statute such as section 60 does not\r\ndiscriminate against any racial group, since it applies alike to\r\nall persons whether Caucasian, Negro, or members of any other\r\nrace. (In re Estate of Paquet<\/i>, 101 Ore. 393, 399 [200 P. 911].)\r\nThe decisive question, however, is not whether different races,\r\neach considered as a group, are equally treated. The right to\r\nmarry is the right of individuals, not of racial groups. The\r\nequal protection clause of the United States Constitution does\r\nnot refer to rights of the Negro race, the Caucasian race, or any\r\nother race, but to the rights of individuals. (State of Missouri\r\nex rel. Gaines<\/i> v. Canada<\/i>, 305 U.S. 337, 351 [59 S.Ct. 232, 83\r\nL.Ed. 208]; McCabe<\/i> v. Atchison, Topeka & Santa Fe Ry. Co.<\/i>, 235\r\nU.S. 151, 161-162 [35 S.Ct. 69, 59 L.Ed. 169].) In construing the\r\nequal protection of the laws clause of the Constitution, the\r\nUnited States Supreme Court has declared that the\r\nconstitutionality of state action must be tested according to\r\nwhether the rights of an individual are restricted because of his\r\nrace. Thus, in holding invalid state enforcement of covenants\r\nrestricting the occupation of real property on grounds of race,\r\nthe Supreme Court of the United States declared: \"The rights\r\ncreated by the first section of the Fourteenth Amendment are, by\r\nits terms, guaranteed to the individual. It is, therefore, no\r\nanswer to these petitioners to say that the courts may also be\r\ninduced to deny white {Page 717} persons rights of ownership and\r\noccupancy on grounds of race or color. Equal protection of the\r\nlaws is not achieved through indiscriminate imposition of\r\ninequalities.\" (Shelley<\/i> v. Kraemer<\/i>, 334 U.S. 1 [68 S.Ct. 836,\r\n846, 92 L.E.d. 1161].) In an earlier case, where a Negro\r\ncontended that the state's failure to give him equal facilities\r\nwith others to study law within the state impaired his\r\nconstitutional rights under the equal protection clause, the\r\ncourt rejected any consideration of the difference of the demand\r\nfor legal education among white persons and Negroes, stating:\r\n\"Petitioner's right was a personal one. It was as an individual\r\nthat he was entitled to the equal protection of the laws, and the\r\nState was bound to furnish him within its borders facilities for\r\nlegal education substantially equal to those which the State\r\nthere afforded for persons of the white race, whether or not\r\nother negroes sought the same opportunity.\" (State of Missouri ex\r\nrel. Gaines<\/i> v. Canada<\/i>, 305 U.S. 337, 351 [59 S.Ct. 232, 83 L.Ed.\r\n208]; Sipuel<\/i> v. Board of Regents<\/i>, 332 U.S. 631 [68 S.Ct. 299, 92\r\nL.Ed. ___].) Similarly, with regard to the furnishing of\r\nsleeping, dining, and chair car facilities on trains, the Supreme\r\nCourt of the United States has held that even though there was\r\nless demand for such facilities among Negroes than among whites,\r\nthe right of a member of the Negro race to substantially equal\r\nfacilities was a right of the individual and not of the racial\r\ngroup: \"It is the individual who is entitled to equal protection\r\nof the laws, and if he is denied by a common carrier, acting in\r\nthe matter under the authority of a state law, a facility or\r\nconvenience in the course of his journey which, under\r\nsubstantially the same circumstances, is furnished to another\r\ntraveler, he may properly complain that his constitutional\r\nprivilege has been invaded.\" (McCabe<\/i> v. Atchison, Topeka & Santa\r\nFe Railway Co.<\/i>, 235 U.S. 151, 161, 162 [35 S.Ct. 69, 59 L.Ed.\r\n169].) In these cases the United States Supreme Court determined\r\nthat the right of an individual to be treated without\r\ndiscrimination because of his race can be met by separate\r\nfacilities affording substantially equal treatment to the members\r\nof the different races. A holding that such segregation does not\r\nimpair the right of an individual to ride on trains or to enjoy a\r\nlegal education is clearly inapplicable to the right of an\r\nindividual to marry. Since the essence of the right to marry is\r\nfreedom to join in marriage with the person of one's choice, a\r\nsegregation statute for marriage necessarily impairs the right to\r\nmarry.\r\n\r\n{Page 718}\r\nIn determining whether the public interest requires the\r\nprohibition of a marriage between two persons, the state may take\r\ninto consideration matters of legitimate concern to the state.\r\nThus, disease that might become a peril to the prospective spouse\r\nor to the offspring of the marriage could be made a\r\ndisqualification for marriage. (See for example, Civ. Code, \u00a7\u00a7\r\n79.01, 79.06.) Such legislation, however, must be based on tests\r\nof the individual, not on arbitrary classifications of groups or\r\nraces, and must be administered without discrimination on the\r\ngrounds of race. (Yick Wo<\/i> v. Hopkins<\/i>, 118 U.S. 356, 373 [6 S.Ct.\r\n1064, 30 L.Ed. 220].) It has been suggested that certain races\r\nare more prone than the Caucasian to diseases such as\r\ntuberculosis. If the state determines that certain diseases would\r\nendanger a marital partner or offspring, it may prohibit persons\r\nso diseased from marrying, but the statute must apply to all\r\npersons regardless of race. Sections 60 and 69 are not motivated\r\nby a concern to diminish the transmission of disease by marriage,\r\nfor they make race and not disease the disqualification. Thus, a\r\ntubercular Negro or a tubercular Caucasian may marry subject to\r\nthe race limitation, but a Negro and a Caucasian who are free\r\nfrom disease may not marry each other. If the purpose of these\r\nsections was to prevent marriages by persons who do not have the\r\nqualifications for marriage that the state may properly\r\nprescribe, they would make the possession of such qualifications\r\nthe test for members of all races alike. By restricting the\r\nindividual's right to marry on the basis of race alone, they\r\nviolate the equal protection of the laws clause of the United\r\nStates Constitution.\r\n\r\n II\r\nThe parties, however, have argued at length the question whether\r\nthe statute is arbitrary and unreasonable. They have assumed\r\nthat under the equal protection clause the state may classify\r\nindividuals according to their race in legislation regulating\r\ntheir fundamental rights. If it be assumed that such a\r\nclassification can validly be made under the equal protection\r\nclause in circumstances besides those arising from an emergency,\r\nthe question would remain whether the statute's classification of\r\nracial groups is based on differences between those groups\r\nbearing a substantial relation to a legitimate legislative\r\nobjective. (Barker Bros., Inc.<\/i> v. Los Angeles<\/i>, 10 Cal.2d 603,\r\n609 [76 P.2d 97]; Gulf etc. R. Co.<\/i> v. Ellis<\/i>, 165 U.S. 150, 165,\r\n166 [17 S.Ct. 255, 41 L.Ed. 666]; Quaker City {Page 719} Cab Co.\r\nv. Pennsylvania, 277 U.S. 389, 400 [48 S.Ct. 553, 72 L.Ed. 927].)\r\nRace restrictions must be viewed with great suspicion, for the\r\nFourteenth Amendment \"was adopted to prevent state legislation\r\ndesigned to discriminate on the basis of race or color\" (Railway\r\nMail Ass'n.<\/i> v. Corsi<\/i>, 326 U.S. 88, 94 [65 S.Ct. 1483, 89 L.Ed.\r\n2072]; Williams<\/i> v. International Brotherhood of Boilermakers<\/i>, 27\r\nCal.2d 586, 590 [165 P.2d 903]) and expresses \"a definite\r\nnational policy against discriminations because of race or\r\ncolor.\" (James<\/i> v. Marinship Corp.<\/i>, 25 Cal.2d 721, 740 [155 P.2d\r\n329, 160 A.L.R. 900].) Any state legislation discriminating\r\nagainst persons on the basis of race or color has to overcome the\r\nstrong presumption inherent in this constitutional policy. \"Only\r\nthe most exceptional circumstances can excuse discrimination on\r\nthat basis in the face of the equal protection clause ...\" (Oyama\r\nv. California, 332 U.S. 633 [68 S.Ct. 269, 275, 92 L.Ed. 249].)\r\nWe shall therefore examine the history of the legislation in\r\nquestion and the arguments in its support to determine whether\r\nthere are any exceptional circumstances sufficient to justify it.\r\n\r\nCalifornia's first miscegenation statute (Stats. 1850, ch. 140,\r\np. 424) was enacted at the same time as two other statutes\r\nconcerning race. It has been held that these three statutes were\r\nin pari materia and therefore to be read together. (Estate of\r\nStark<\/i>, 48 Cal.App.2d 209, 214 [119 P.2d 961].) The two companion\r\nstatutes provided: \"No black or mulatto person, or Indian, shall\r\nbe permitted to give evidence in favor of, or against, any white\r\nperson. Every person who shall have one-eighth part or more of\r\nNegro blood shall be deemed a mulatto, and every person who shall\r\nhave one half of Indian blood shall be deemed an Indian.\" (Stats.\r\n1850, ch. 99, \u00a7 14, p. 230; repealed Code Civ. Proc., \u00a7 18,\r\n1872.) \"No black, or mulatto person, or Indian, shall be\r\npermitted to give evidence in any action to which a white person\r\nis a party, in any Court of this State. Every person who shall\r\nhave one eighth part or more of negro blood, shall be deemed a\r\nmulatto; and every person who shall have one half Indian blood,\r\nshall be deemed an Indian.\" (Stats. 1850, ch. 142, \u00a7 306, p. 455;\r\nrepealed Code Civ. Proc., \u00a7 18, 1872.)\r\n\r\nIn 1854, this court held that Chinese (and all others not white)\r\nwere precluded from being witnesses against white persons on the\r\nbasis of the statute quoted above. (People<\/i> v. Hall<\/i>, 4 Cal. 399,\r\n404.) The considerations motivating the decision {Page 720} are\r\ncandidly set forth: \"The anomalous spectacle of a distinct people\r\n[Chinese], living in our community, recognizing no laws of this\r\nState except through necessity, bringing with them their\r\nprejudices and national feuds, in which they indulge in open\r\nviolation of law; whose mendacity is proverbial; a race of people\r\nwhom nature has marked as inferior, and who are incapable of\r\nprogress or intellectual development beyond a certain point, as\r\ntheir history has shown; differing in language, opinions, color,\r\nand physical conformation; between whom and ourselves nature has\r\nplaced an impassable difference, is now presented, and for them\r\nis claimed, not only the right to swear away the life of a\r\ncitizen, but the further privilege of participating with us in\r\nadministering the affairs of our Government.\" (People<\/i> v. Hall<\/i>,\r\nsupra<\/i>, at pp. 404-405.) For these reasons, therefore, \"all races\r\nother than Caucasian\" were held to be included in a statute\r\nreferring only to a \"black or mulatto person, or Indian.\"\r\n\r\nCalifornia courts are not alone in such utterances. Many courts\r\nin this country have assumed that human beings can be judged by\r\nrace and that other races are inferior to the Caucasian. \r\nRespondent's position is based upon those premises. He justifies\r\nthe prohibition of miscegenation on grounds similar to those set\r\nforth in the frequently cited case of Scott<\/i> v. State<\/i>, (1869), 39\r\nGa. 321, 324: \"The amalgamation of the races is not only\r\nunnatural, but is always productive of deplorable results. Our\r\ndaily observation shows us, that the offspring of these unnatural\r\nconnections are generally sickly and effeminate, and that they\r\nare inferior in physical development and strength, to the full\r\nblood of either race.\"{fn.2<\/a>} Modern experts are agreed that the\r\nprogeny of marriages between persons of different races are not\r\ninferior to both parents.(fn.3<\/a>} Nevertheless, even if we were\r\nto assume that inter-racial {Page 721} marriage results in\r\ninferior progeny, we are unable to find any clear policy in the\r\nstatute against marriages on that ground.\r\n\r\nCivil Code, section 60, like most miscegenation statutes (see,\r\nVernier, American Family Laws, \u00a7 44), prohibits marriages only\r\nbetween \"white persons\" and members of certain other so-called\r\nraces. Although section 60 is more inclusive than most\r\nmiscegenation statutes, it does not include \"Indians\" or \"Hindus\"\r\n(see, United States<\/i> v. Bhagat Singh Thind<\/i>, 261 U.S. 204, 214-215\r\n[43 S.Ct. 338, 67 L.Ed. 616]); nor does it set up \"Mexicans\" as a\r\nseparate category, although some authorities consider Mexico to\r\nbe populated at least in part by persons who are a mixture of\r\n\"white\" and \"Indian.\" (See, 15 Encyclopedia Britannica, pp. 381-\r\n382, 60 Harv.L. Rev. 1156-1158.) Thus, \"white persons\" may marry\r\npersons who would be considered other than white by respondent's\r\nauthorities, and all other \"races\" may intermarry freely.\r\n\r\nThe Legislature therefore permits the mixing of all races with\r\nthe single exception that white persons may not marry Negroes,\r\nMongolians, mulattoes, or Malays. It might be concluded\r\ntherefrom that section 60 is based upon the theory that the\r\nprogeny of a white person and a Mongolian or Negro or Malay are\r\ninferior or undesirable, while the progeny of members of other\r\ndifferent races are not. Nevertheless, the section does not\r\nprevent the mixing of \"white\" and \"colored\" blood. It permits\r\nmarriages not only between Caucasians and others of darker\r\npigmentation, such as Indians, Hindus, and Mexicans, but between\r\npersons of mixed ancestry including white. If a person of partly\r\nCaucasian ancestry is yet classified as a Mongolian under section\r\n60 because his ancestry is predominantly Mongolian, a\r\nconsiderable mixture of Caucasian and Mongolian blood is\r\npermissible. A person having five-eighths Mongolian blood and\r\nthree-eighths white blood could properly marry another person of\r\npreponderantly Mongolian blood. Similarly, a mulatto can marry a\r\nNegro. Under the theory of Estate of Stark<\/i>, supra<\/i>, that a\r\nmulatto is a person having one-eighth or more of Negro ancestry,\r\na person having seven-eighths white ancestry could marry a Negro. \r\nIn fact two mulattoes, each of four-eighths white and four-\r\neighths Negro blood, could marry under section 60, and their\r\nprogeny, like them, would belong as much to one race as to the\r\nother. In effect, therefore, section 60 permits a substantial\r\namount of intermarriage between persons of some {Page 722}\r\nCaucasian ancestry and members of other races. Furthermore,\r\nthere is no ban on illicit sexual relations between Caucasians\r\nand members of the proscribed races. Indeed, it is covertly\r\nencouraged by the race restrictions on marriage.\r\n\r\nNevertheless, respondent has sought to justify the statute by\r\ncontending that the prohibition of intermarriage between\r\nCaucasians and members of the specified races prevents the\r\nCaucasian race from being contaminated by races whose members are\r\nby nature physically and mentally inferior to Caucasians.\r\n\r\nRespondent submits statistics relating to the physical\r\ninferiority of certain races. Most, if not all, of the ailments\r\nto which he refers are attributable largely to environmental\r\nfactors. Moreover, one must take note of the statistics showing\r\nthat there is a higher percentage of certain diseases among\r\nCaucasians than among non-Caucasians.{fn.4<\/a>} The categorical\r\nstatement that non-Caucasians are inherently physically inferior\r\nis without scientific proof. In recent years scientists have\r\nattached great weight to the fact that their segregation in a\r\ngenerally inferior environment greatly increases their liability\r\nto physical ailments.{fn.5<\/a>} In any event, generalizations {Page\r\n723} based on race are untrustworthy in view of the great\r\nvariations among members of the same race. The rationalization,\r\ntherefore, that marriage between Caucasians and non-Caucasians is\r\nsocially undesirable because of the physical disabilities of the\r\nlatter, fails to take account of the physical disabilities of\r\nCaucasians and fails also to take account of variations among\r\nnon-Caucasians. The Legislature is free to prohibit marriages\r\nthat are socially dangerous because of the physical disabilities\r\nof the parties concerned. (See, Civ. Code \u00a7\u00a7 79.01, 79.06.) The\r\nmiscegenation statute, however, condemns certain races as unfit\r\nto marry with Caucasians on the premise of a hypothetical racial\r\ndisability, regardless of the physical qualifications of the\r\nindividuals concerned. If this premise were carried to its\r\nlogical conclusion, non-Caucasians who are now precluded from\r\nmarrying Caucasians on physical grounds would also be precluded\r\nfrom marrying among themselves on the same grounds. The concern\r\nto prevent marriages in the first category and the indifference\r\nabout marriages in the second reveal the spuriousness of the\r\ncontention that intermarriage between Caucasians and non-\r\nCaucasians is socially dangerous on physical grounds.\r\n\r\nRespondent also contends that Negroes, and impliedly the other\r\nraces specified in section 60, are inferior mentally to\r\nCaucasians. It is true that in the United States catalogues of\r\ndistinguished people list more Caucasians than members of other\r\nraces. It cannot be disregarded, however, that Caucasians are in\r\nthe great majority and have generally had a more advantageous\r\nenvironment, and that the capacity of the members of any race to\r\ncontribute to a nation's culture depends in large measure on how\r\nfreely they may participate in that culture. There is no\r\nscientific proof that one race is superior to another in native\r\nability.{fn.6<\/a>} The data on which {Page 724} Caucasian\r\nsuperiority is based have undergone considerable reevaluation by\r\nsocial and physical scientists in the past two decades. Although\r\nscientists do not discount the influence of heredity on the\r\nability to score highly on mental tests, there is no certain\r\ncorrelation between race and intelligence. There have been\r\noutstanding individuals in all races, and there has also been\r\nwide variation in the individuals of all races. In any event the\r\nLegislature has not made an intelligence test a prerequisite to\r\nmarriage. If respondent's blanket condemnation of the mental\r\nability of the proscribed races were accepted, there would be no\r\nlimit to discriminations based upon the purported inferiority of\r\ncertain races. It would then be logical to forbid Negroes to\r\nmarry Negroes, or Mongolians to marry Mongolians, on the ground\r\nof mental inferiority, or by sterilization to decrease their\r\nnumbers.\r\n\r\nRespondent contends, however, that persons wishing to marry in\r\ncontravention of race barriers come from the \"dregs of society\"\r\nand that their progeny will therefore be a burden on the\r\ncommunity. There is no law forbidding marriage among the \"dregs\r\nof society,\" assuming that this expression is capable of\r\ndefinition. If there were such a law, it could not be applied\r\nwithout a proper determination of the persons that fall within\r\nthat category, a determination that could hardly be made on the\r\nbasis of race alone.\r\n\r\nRespondent contends that even if the races specified in the\r\nstatute are not by nature inferior to the Caucasian race, the\r\nstatute can be justified as a means of diminishing race tension\r\nand preventing the birth of children who might become social\r\nproblems.\r\n\r\n{Page 725}\r\nIt is true that in some communities the marriage of persons of\r\ndifferent races may result in tension. Similarly, race tension\r\nmay result from the enforcement of the constitutional requirement\r\nthat persons must not be excluded from juries solely on the\r\nground of color, or segregated by law to certain districts within\r\na city. In Buchanan<\/i> v. Warley<\/i>, 245 U.S. 60, 81 [38 S.Ct. 16, 62\r\nL.Ed. 149], the Supreme Court of the United States declared\r\nunconstitutional a statute forbidding a \"white person\" to move\r\ninto a block where the greater number of residences were occupied\r\nby \"colored persons\" and forbidding a \"colored person\" to move\r\ninto a block where the greater number of residences were occupied\r\nby \"white persons.\" The contention was made that the \"proposed\r\nsegregation will promote the public peace by preventing race\r\nconflicts.\" The court stated in its opinion that desirable \"as\r\nthis is, and important as is the preservation of the public\r\npeace, this aim cannot be accomplished by laws or ordinances\r\nwhich deny rights created or protected by the Federal\r\nConstitution.\" (See, Cantwell<\/i> v. State<\/i>, 310 U.S. 296, 310 [60\r\nS.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].)\r\n\r\nThe effect of race prejudice upon any community is unquestionably\r\ndetrimental both to the minority that is singled out for\r\ndiscrimination and to the dominant group that would perpetuate\r\nthe prejudice. It is no answer to say that race tension can be\r\neradicated through the perpetuation by law of the prejudices that\r\ngive rise to the tension. Nor can any reliance be placed on the\r\ndecisions of the United States Supreme Court upholding laws\r\nrequiring segregation of races in facilities supplied by local\r\ncommon carriers and schools, for that court has made it clear\r\nthat in those instances the state must secure equal facilities\r\nfor all persons regardless of race in order that no substantive\r\nright be impaired. (Sipuel<\/i> v. Board of Regents<\/i>, 332 U.S. 631 [68\r\nS.Ct. 299, 92 L.Ed. ___], [16 U.S. Law Week 4090]; Missouri ex\r\nrel. Gaines<\/i> v. Canada<\/i>, 305 U.S. 337, 350-351 [59 S.Ct. 232, 83\r\nL.Ed. 208].) In the present case, however, there is no redress\r\nfor the serious restriction of the right of Negroes, mulattoes,\r\nMongolians, and Malays to marry; certainly there is none in the\r\ncorresponding restriction of the right of Caucasians to marry. A\r\nmember of any of these races may find himself barred by law from\r\nmarrying the person of his choice and that person to him may be\r\nirreplaceable. Human beings are bereft of worth and dignity by a\r\ndoctrine that would make them as interchangeable as trains.\r\n\r\n{Page 726}\r\nRespondent relies on Pace<\/i> v. Alabama<\/i>, 106 U.S. 583 [1 S.Ct. 637,\r\n27 L.Ed. 207], in which the United States Supreme Court held\r\nconstitutional an Alabama statute imposing more severe punishment\r\nfor adultery or fornication between a white person and a Negro\r\nthan for such acts between individuals belonging to the same\r\nrace. The Alabama statute also referred to intermarriage but the\r\ncourt considered the case as one dealing solely with adultery and\r\nnonmarital intercourse. We are not required by the facts of this\r\ncase to discuss the reasoning of Pace<\/i> v. Alabama<\/i> except to state\r\nthat adultery and nonmarital intercourse are not, like marriage,\r\na basic right, but are offenses subject to various degrees of\r\npunishment.\r\n\r\nThe rationalization that race discrimination diminishes the\r\ncontacts and therefore the tensions between races would\r\nperpetuate the deprivation of rights of racial minorities. It\r\nwould justify an abridgment of their privilege of holding office,\r\nof jury service, of entering the professions. The courts have\r\nmade it clear that these privileges are not the prerogatives of\r\nany race.\r\n\r\nIt is contended that interracial marriage has adverse effects not\r\nonly upon the parties thereto but upon their progeny. Respondent\r\nrelies on Buck<\/i> v. Bell<\/i>, 274 U.S. 200 [47 S.Ct. 584, 71 L.Ed.\r\n1000], for the proposition that the state \"may properly protect\r\nitself as well as the children by taking steps which will prevent\r\nthe birth of offspring who will constitute a serious social\r\nproblem, even though such legislation must necessarily interfere\r\nwith a natural right.\" That case, however, involved a statute\r\nauthorizing sterilization of imbeciles following scientific\r\nverification and the observance of procedural guarantees. In\r\nBuck<\/i> v. Bell<\/i> the person sterilized was the feeble-minded child of\r\na feeble-minded mother and was herself the mother of an\r\nillegitimate feeble-minded child. (See, Welf. & Inst. Code,\r\n\u00a7 6624.) The inheritability of mental defectiveness does not\r\nconcern us here, for this case does not involve mentally\r\ndefective persons. The Supreme Court of the United States later\r\nforbade the sterilization of criminals in Skinner<\/i> v. Oklahoma<\/i>,\r\nsupra<\/i>, where the Legislature failed to provide a fair hearing and\r\nset up illogical and discriminatory categories. The racial\r\ncategories in the miscegenation law are as illogical and\r\ndiscriminatory as those condemned by the Supreme Court in Skinner\r\nv. Oklahoma; and there is a corresponding lack of a fair hearing.\r\n\r\n{Page 727}\r\nRespondent maintains that Negroes are socially inferior and have\r\nso been judicially recognized (e.g., Wolfe<\/i> v. Georgia Ry. & Elec.\r\nCo.<\/i>, 2 Ga.App. 499 [58 S.E. 899, 901]), and that the progeny of a\r\nmarriage between a Negro and a Caucasian suffer not only the\r\nstigma of such inferiority but the fear of rejection by members\r\nof both races. If they do, the fault lies not with their\r\nparents, but with the prejudices in the community and the laws\r\nthat perpetuate those prejudices by giving legal force to the\r\nbelief that certain races are inferior. If miscegenous marriages\r\ncan be prohibited because of tensions suffered by the progeny,\r\nmixed religious unions could be prohibited on the same\r\nground.{fn.7<\/a>}\r\n\r\nThere are now so many persons in the United States of mixed\r\nancestry, that the tensions upon them are already diminishing and\r\nare bound to diminish even more in time.{fn.8<\/a>} Already many of\r\nthe progeny of mixed marriages have made important contributions\r\nto the community. In any event the contention that the\r\nmiscegenation laws prohibit interracial marriage because of its\r\nadverse effects on the progeny is belied by the extreme racial\r\nintermixture that it tolerates.\r\n\r\nFor many years progress was slow in the dissipation of the\r\ninsecurity that haunts racial minorities, for there are many who\r\nbelieve that their own security depends on its maintenance. Out\r\nof earnest belief, or out of irrational fears, they reason in a\r\ncircle that such minorities are inferior in health, intelligence,\r\nand culture, and that this inferiority proves the need of the\r\nbarriers of race prejudice.\r\n\r\nCareful examination of the arguments in support of the\r\nlegislation in question reveals that \"there is absent the\r\ncompelling justification which would be needed to sustain\r\ndiscrimination of that nature.\" (Oyama<\/i> v. California<\/i>, 332 U.S.\r\n633 [68 S.Ct. 269, 272, 92 L.Ed. 249].) Certainly the fact alone\r\nthat the discrimination has been sanctioned by the state for many\r\nyears does not supply such justification. (Shelley<\/i> v. Kraemer<\/i>,\r\n334 U.S. 1 [68 S.Ct. 836, 92 L.Ed. 1161]; Oyama<\/i> v. California<\/i>,\r\nsupra<\/i>; Takahashi<\/i> v. Fish & Game Com.<\/i>, 334 U.S. 410 [68 S.Ct.\r\n1138, 92 L.Ed. 249]; see Winters<\/i> v. New York<\/i>, 333 U.S. 507 [68\r\nS.Ct. 665, 92 L.Ed. 840].)\r\n\r\n{Page 728} III\r\nEven if a state could restrict the right to marry upon the basis\r\nof race alone, sections 60 and 69 of the Civil Code are\r\nnevertheless invalid because they are too vague and uncertain to\r\nconstitute a valid regulation. A certain precision is essential\r\nin a statute regulating a fundamental right. \"It is the duty of\r\nthe lawmaking body in framing laws to express its intent in clear\r\nand plain language to the end that the people upon whom it is\r\ndesigned to operate may be able to understand the legislative\r\nwill.\" (In re Alpine<\/i>, 203 Cal. 731, 736-737 [265 P. 947, 58\r\nA.L.R. 1500]; cases collected 50 Am.Jur. 484.) \"It is a\r\nfundamental rule that no citizen should be deprived of his\r\nliberty for the violation of a law which is uncertain and\r\nambiguous.\" (In re Stewart<\/i>, 24 Cal.2d 344, 348 [149 P.2d 689]; In\r\nre Peppers, 189 Cal. 682, 686 [209 P. 896]; United States<\/i> v.\r\nCohen Grocery Co.<\/i>, 255 U.S. 81, 89-92 [41 S.Ct. 298, 65 L.Ed.\r\n516]; Lanzetta<\/i> v. New Jersey<\/i>, 306 U.S. 451, 453 [59 S.Ct. 618, 83\r\nL.Ed. 888]; Connally<\/i> v. General Construction Co.<\/i>, 269 U.S. 385,\r\n391 [46 S.Ct. 126, 70 L.Ed. 322].)\r\n\r\nThe requirement that a law be definite and its meaning\r\nascertainable by those whose rights and duties are governed\r\nthereby applies not only to penal statutes, but to laws governing\r\nfundamental rights and liberties. (Standard C. & M. Corp.<\/i> v.\r\nWaugh C. Corp.<\/i>, 231 N.Y. 51, 54 [131 N.E. 566, 14 A.L.R. 1054];\r\nSmall Co.<\/i> v. American Sugar Ref. Co.<\/i>, 267 U.S. 233, 239 [45 S.Ct.\r\n295, 69 L.Ed. 589]; see also State ex rel. Dickason<\/i> v. Harris<\/i>,\r\n158 La. 974, 978 [105 So. 33].) Thus, this court in Hewitt<\/i> v.\r\nBoard of Medical Examiners<\/i>, 148 Cal. 590, 595 [84 P. 39, 113\r\nAm.St.Rep. 315, 7 Ann.Cas. 750, 3 L.R.A.N.S. 896] declared\r\ninvalid a statute regulating the practice of medicine on the\r\nground that its provisions were too vague and uncertain to govern\r\none's right to practice a profession. In In re Di Torio<\/i>, 8 F.2d\r\n279, 281 it was held that a provision of a statute regulating\r\nnaturalization of aliens was invalid on the same ground. \r\nAlthough the provision in question seemed clear on its face, the\r\ncourt refused to apply the statute to vacate an order of\r\nadmission to citizenship because \"An act is void where its\r\nlanguage appears on its face to have a meaning, but it is\r\nimpossible to give it any precise or intelligible application in\r\nthe circumstances under which it was intended to operate.\" (In re\r\nDi Torio<\/i>, supra<\/i> at 281 and cases there cited.)\r\n\r\nSection 60 of the Civil Code declares void all marriages of white\r\npersons with Negroes, Mongolians, members {Page 729} of the Malay\r\nrace or mulattoes. In this section, the Legislature has adopted\r\none of the many systems classifying persons on the basis of race. \r\nRacial classifications that have been made in the past vary as to\r\nthe number of divisions and the features regarded as\r\ndistinguishing the members of each division. The number of races\r\ndistinguished by systems of classification \"varies from three or\r\nfour to thirty-four.\" (Boas, 7 Encyclopedia of Soc. Sciences, 25,\r\n26.) The Legislature's classification in section 60 is based on\r\nthe system suggested by Blumenbach early in the nineteenth\r\ncentury. (Roldan<\/i> v. Los Angeles County<\/i>, 129 Cal.App. 267, 273\r\n[18 P.2d 706].) Blumenbach classified man into five races:\r\nCaucasian (white), Mongolian (yellow), Ethiopian (black),\r\nAmerican Indian (red), and Malayan (brown). Even if that hard\r\nand fast classification be applied to persons all of whose\r\nancestors belonged to one of these racial divisions,{fn.8a<\/a>} the\r\nLegislature has made no provision for applying the statute to\r\npersons of mixed ancestry. The fact is overwhelming that there\r\nhas been a steady increase in the number of people in this\r\ncountry who belong to more than one race, and a growing number\r\nwho have succeeded in identifying themselves with the Caucasian\r\nrace even though they are not exclusively Caucasian. Some of\r\nthese persons have migrated to this state; some are born here\r\nillegitimately; others are the progeny of miscegenous marriages\r\nvalid where contracted and therefore valid in California. \r\n(Pearson<\/i> v. Pearson<\/i>, 51 Cal. 120, 125.) The apparent purpose of\r\nthe statute is to discourage the birth of children of mixed\r\nancestry within this state. Such a purpose, however, cannot be\r\naccomplished without taking into consideration marriages of\r\npersons of mixed ancestry. A statute regulating fundamental\r\nrights is clearly unconstitutional if it cannot be reasonably\r\napplied to accomplish its purpose. This court therefore cannot\r\ndetermine the constitutionality of the statute in question on the\r\nassumption that its provisions might, with sufficient\r\ndefiniteness, be applied to persons not of mixed ancestry.\r\n\r\nThe only reference made in the statute to persons of mixed\r\nancestry is the prohibition of marriages between a \"white person\"\r\nand a \"mulatto.\" Even the term \"mulatto\" is not defined. The\r\nlack of a definition of that term leads to a special problem of\r\nhow the statute is to be applied to a {Page 730} person, some but\r\nnot all of whose ancestors are Negroes.{fn.9<\/a>} The only case in\r\nthis state attempting to define the term \"mulatto\" in section 60\r\nof the Civil Code leaves undecided whether a person with less\r\nthan one-eighth Negro blood is a \"mulatto\" within the meaning of\r\nthe statute. (Estate of Stark<\/i>, 48 Cal.App.2d 209, 214 [119 P.2d\r\n961].) Even more uncertainty surrounds the meaning of the terms\r\n\"white persons,\" \"Mongolians,\" and \"members of the Malay race.\"\r\n\r\nIf the statute is to be applied generally to persons of mixed\r\nancestry the question arises whether it is to be applied on the\r\nbasis of the physical appearance of the individual or on the\r\nbasis of a genealogical research as to his ancestry. If the\r\nphysical appearance of the individual is to be the test, the\r\nstatute would have to be applied on the basis of subjective\r\nimpressions of various persons. Persons having the same parents\r\nand consequently the same hereditary background could be\r\nclassified differently. On the other hand, if the application of\r\nthe statute to persons of mixed ancestry is to be based on\r\ngenealogical research, the question immediately arises what\r\nproportions of Caucasian, Mongolian, or Malayan ancestors govern\r\nthe applicability of the statute. Is it any trace of Mongolian\r\nor Malayan ancestry, or is it some unspecified proportion of such\r\nancestry that makes a person a Mongolian or Malayan within the\r\nmeaning of section 60?\r\n\r\nTo determine that a person is a Mongolian or Malayan within the\r\nmeaning of the statute because of any trace of {Page 731} such\r\nancestry, however slight, would be absurd. If the classification\r\nof a person of mixed ancestry depends upon a given proportion of\r\nMongolians or Malayans among his ancestors, how can this court,\r\nwithout clearly invading the province of the Legislature,\r\ndetermine what that decisive proportion is? (See, Pacific Coast\r\netc. Bank<\/i> v. Roberts<\/i>, 16 Cal.2d 800, 805 [108 P.2d 439].) Nor can\r\nthis court assume that a predominance in number of ancestors of\r\none race makes a person a Caucasian, Mongolian, or Malayan within\r\nthe meaning of the statute, for absurd results would follow from\r\nsuch an assumption. Thus, a person with three-sixteenths Malay\r\nancestry might have many so-called Malay characteristics and yet\r\nbe considered a white person in terms of his preponderantly white\r\nancestry. Such a person might easily find himself in a dilemma,\r\nfor if he were regarded as a white person under section 60, he\r\nwould be forbidden to marry a Malay, and yet his Malay\r\ncharacteristics might effectively preclude his marriage to\r\nanother white person. Similarly, a person having three-eighths\r\nMongolian ancestry might legally be classed as a white person\r\neven though he possessed Mongolian characteristics. He might\r\nhave little opportunity or inclination to marry any one other\r\nthan a Mongolian, yet section 60 might forbid such a marriage. \r\nMoreover, if a person were of four-eighths Mongolian or Malayan\r\nancestry and four-eighths white ancestry, a test based on\r\npredominance in number of ancestors could not be applied.\r\n\r\nSection 69 of the Civil Code and section 60 on which it is based\r\nare therefore too vague and uncertain to be upheld as a valid\r\nregulation of the right to marry. Enforcement of the statute\r\nwould place upon the officials charged with its administration\r\nand upon the courts charged with reviewing the legality of such\r\nadministration the task of determining the meaning of the\r\nstatute. That task could be carried out with respect to persons\r\nof mixed ancestry only on the basis of conceptions of race\r\nclassification not supplied by the Legislature. \"If no judical\r\ncertainty can be settled upon as to the meaning of a statute, the\r\ncourts are not at liberty to supply one.\" (In re Di Torio<\/i>, 8 F.2d\r\n279, 281.)\r\n\r\nIn summary, we hold that sections 60 and 69 are not only too\r\nvague and uncertain to be enforceable regulations of a\r\nfundamental right, but that they violate the equal protection of\r\nthe laws clause of the United States Constitution by impairing\r\nthe right of individuals to marry on the basis of race {Page 732}\r\nalone and by arbitrarily and unreasonably discriminating against\r\ncertain racial groups.\r\n\r\nLet the peremptory writ issue as prayed.\r\n\r\nGibson, C.J., and Carter, J., concurred.\r\n\r\nCARTER, J., concurring:\r\n\r\nIt is my considered opinion that the statutes here involved (Civ. \r\nCode, \u00a7\u00a7 60, 69) are the product of ignorance, prejudice and\r\nintolerance, and I am happy to join in the decision of this court\r\nholding that they are invalid and unenforceable. This decision\r\nis in harmony with the declarations contained in the Declaration\r\nof Independence which are guaranteed by the Bill of Rights and\r\nthe Fourteenth Amendment to the Constitution of the United States\r\nand reaffirmed by the Charter of the United Nations, that all\r\nhuman beings have equal rights regardless of race, color or\r\ncreed, and that the right to liberty and the pursuit of happiness\r\nis inalienable and may not be infringed because of race, color or\r\ncreed. To say that these statutes may stand in the face of the\r\nconcept of liberty and equality embraced within the ambit of the\r\nabove-mentioned fundamental law is to make of that concept an\r\nempty, hollow mockery.\r\n\r\nThe Declaration of Independence declares: \"We hold these truths\r\nto be self evident: That all men are created equal; that they are\r\nendowed by their Creator with certain unalienable rights; that\r\namong these are life, liberty and the pursuit of happiness; ...\"\r\n\r\nThe Fifth Amendment to the Constitution of the United States\r\nprovides that: \"No person shall be deprived of life, liberty or\r\nproperty without due process of law.\"\r\n\r\nThe Fourteenth Amendment to the Constitution of the United States\r\nprovides:\r\n \"Section 1. All persons born or naturalized in the United\r\n States, and subject to the jurisdiction thereof, are\r\n citizens of the United States and of the State wherein\r\n they reside. No State shall make or enforce any law\r\n which shall abridge the privileges or immunities of\r\n citizens of the United States; nor shall any State\r\n deprive any person of life, liberty, or property, without\r\n due process of law; nor deny to any person within its\r\n jurisdiction the equal protection of the laws.\"\r\n\r\nThe Charter of the United Nations contains the following\r\ndeclaration:\r\n \"We the Peoples of the United Nations determined: ... to\r\n reaffirm faith in fundamental human rights, in the\r\n dignity and worth of the human person, in the {Page 733}\r\n equal rights of men and women and of nations large and\r\n small ... to promote social progress and better standards\r\n of life in larger freedom, ... And for these ends ... to\r\n practice tolerance ...\" (Preamble.) \"... in promoting and\r\n encouraging respect for human rights and for fundamental\r\n freedoms for all without distinction as to race, sex,\r\n language, or religion ...\"\r\n(Ch. I, art. I, \u00a7 3.)\r\n\r\nIn the face of these authoritative pronouncements the matter of\r\nrace equality should be a settled issue. It is, at least, a\r\nsettled issue so far as the fundamental law is concerned. And\r\nthe only question before us is whether the Legislature may enact\r\na valid statute in direct conflict with this fundamental law. It\r\nseems clear to me that it is not possible for the Legislature, in\r\nthe face of our fundamental law, to enact a valid statute which\r\nproscribes conduct on a purely racial basis. Such are the\r\nstatutes here involved. The wisdom of the broad, liberal concept\r\nof liberty and equality declared in our fundamental law should be\r\napparent to every unprejudiced mind.\r\n\r\nThe Apostle Paul declared that: \"God ... hath made of one blood\r\nall nations of men for to dwell on all the face of the earth, and\r\nhath determined the times before appointed, and the bounds of\r\ntheir habitation.\" (The Acts of the Apostles, ch. 17, v. 26.)\r\n\r\nCedric Dover writes in his book \"Half-Caste\":\r\n \"Perhaps our Neanderthal ancestors arose from mixture\r\n between ape-men of the Ice Age. Perhaps our Neolithic\r\n prototypes emerged from relations between the Aurignacian\r\n invaders of Europe and the local Neanderthals. We shall\r\n be content with the knowledge that miscegenation has\r\n influenced human evolution from the earliest times, that\r\n there has not been a pure race of our species for at\r\n least ten thousand years.\"\r\n\r\nIn a letter to Chastellux in 1785 Thomas Jefferson wrote: \"I have\r\nsupposed the black man, in his present state, might not be in\r\nbody and mind equal to the white man; but it would be hazardous\r\nto affirm that, equally cultivated for a few generations, he\r\nwould not become so.\" Notwithstanding this statement, Jefferson,\r\nwho was the author of the Declaration of Independence, made it\r\nclear that the Negro is entitled to enjoy equally with others the\r\n\"unalienable rights of life, liberty and the pursuit of\r\nhappiness.\"\r\n\r\nThe Declaration of Independence is a part of the law of our land. \r\nIt is to be found as part of the Statutes at Large {Page 734} on\r\npage 1 of volume 1. It has been given effect as a legislative\r\nenactment (Inglis<\/i> v. Trustees of the Sailor's Snug Harbor<\/i>, 28\r\nU.S. (3 Pet.) 99 [7 L.Ed. 617], and other cases cited in\r\nU.S.C.A., 1 Constitution, pp. 7, 8; Fidelity & Casualty Co. of\r\nNew York<\/i> v. Union Savings Bank Co.<\/i>, 29 Ohio App. 154 [163 N.E.\r\n221]). It declares that: \"All men are created equal; that they\r\nare endowed by their Creator with certain unalienable rights;\r\nthat among these are life, liberty and the pursuit of happiness;\r\n....\" No one will question that, so far as petitioners are\r\nconcerned, this case involves the pursuit of happiness in its\r\nclearest and most universally approved form.\r\n\r\nIt is a matter of law as well as historical knowledge that after\r\nthe Revolution all men were not, in law, equal (Dred Scott<\/i> v.\r\nSanford<\/i>, 19 How. (U.S.) 393 [15 L.Ed. 691]). But it is well to\r\nremember that men fought, bled, and died for the truth of the\r\nproposition.\r\n\r\nIn the Dred Scott<\/i> case, supra<\/i>, the truth of the proposition was\r\nquestioned and denied in an opinion by Chief Justice Taney. It\r\nis again a matter of historical knowledge that this decision\r\nhelped to kindle the fire which brought on the Civil War. In\r\nthis war men fought, bled and died for their belief in the\r\nessential equality of man.\r\n\r\nAbraham Lincoln, in his never-to-be-forgotten Gettysburg Address,\r\ntold us, because he was speaking to the future as well as of the\r\npast, that \"Four score and seven years ago our fathers brought\r\nforth upon this continent, a new nation, conceived in Liberty,\r\nand dedicated to the proposition that all men are created equal.\"\r\nHe asked whether \"[A]ny nation, so conceived and so dedicated,\r\ncan long endure.\" The Civil War was supposed to definitely and\r\nconclusively answer that question. This being so, should a\r\nstate, or even a number of states, legislate to destroy that\r\nideal when great wars have been fought to preserve it? An ideal\r\nfor which men gave their lives and the lives of their families\r\nshould be a precious heritage to be carefully guarded. And yet\r\nall men are not now being given equal treatment!\r\n\r\nThe freedom to marry the person of one's choice has not always\r\nexisted, and evidently does not exist here today. But is not\r\nthat one of the fundamental rights of a free people? Blackstone\r\nsaid that: \"Liberty consists in being limited only by that\r\nSupreme Law which is the expression of abstract right.\" If the\r\nright to marry is a fundamental right, then it must be conceded\r\nthat an infringement of that right by {Page 735} means of a\r\nracial restriction is an unlawful infringement of one's liberty. \r\nIt is immaterial that perhaps only a few would wish to marry\r\npersons not of their own race or color. It is material that the\r\nfew who do so desire have the right to make that choice. It is\r\nonly ignorance, prejudice and intolerance which denies it. Since\r\nthis state will recognize as valid a marriage performed in\r\nanother state between members of these two races it follows that\r\nthe marriage cannot be considered vitally detrimental to the\r\npublic health, welfare and morals.\r\n\r\nThe Constitution of the State of California, article I, section\r\n13, provides that no person shall be deprived of life, liberty or\r\nproperty without due process of law. Due process of law consists\r\nnot only of the individual's right to procedural due process, but\r\nhis right to substantive due process--that the state, through\r\nlegislation, shall not deprive him of one of his \"liberties.\"\r\n\r\nOur Constitution, like the Constitution of the United States, is\r\na restriction upon the powers of the state. Upon this court\r\ndevolves the duty of guarding that Constitution and the rights it\r\nprotects, as upon the Supreme Court of the United States devolves\r\nthe duty of guarding the Constitution of the United States.\r\n\r\nThe student of constitutional law knows that the Civil War\r\namendments to the Constitution did not accomplish their intended\r\npurpose, which was to create a real, over-all equality such as\r\nthe Declaration of Independence contemplated, and which such\r\ncases as the Dred Scott<\/i> case prevented from being realized. \r\n(Waite, The Negro in the Supreme Court, 30 Minn. L.Rev. 219.)\r\n\r\nIn the years following the adoption of the Thirteenth, Fourteenth\r\nand Fifteenth Amendments, many courts still did not think that\r\nthere was real equality among men despite the fact that the\r\nlanguage of the amendments is quite clear. Another round of the\r\nvicious circle was begun, this time by limiting as far as\r\npossible the language of the amendments. Many cases might be\r\ncited to support this view, but the hardest blow to liberal\r\nminded persons--the biggest step backwards into days of slavery--\r\nwas the decision in Plessy<\/i> v. Ferguson<\/i>, 163 U.S. 537 [16 S.Ct.\r\n1138, 41 L.Ed. 256]<\/a>. That case involved a Louisiana statute\r\nwhich provided that railroads must provide \"equal but separate\"\r\naccommodations for white and colored passengers, and that, under\r\npenalty, {Page 736} no member of either group should be permitted\r\nto use the accommodations provided for the other. The Supreme\r\nCourt upheld the statute, and laid down the rule that the state\r\nhad power to make regulations of this kind \"in good faith for the\r\npromotion of the public good.\" The court also said that the\r\nquestion came down to the \"reasonableness of the regulation.\"\r\n(Plessy<\/i> v. Ferguson<\/i>, supra<\/i>, p. 537.<\/a>) By using that language,\r\nhowever, the Supreme Court left the door open for a future, more\r\nenlightened generation. For, if the reasonableness of the\r\nregulation is the only test, it may and will happen that a\r\nregulation was reasonable from the point of view of the\r\nLegislature enacting it and the court first passing on it. And\r\nyet, in the light of future developments, all the reasonableness\r\nmay have been lost and the regulation may have reduced itself to\r\na mere tool of oppression--a hangover from quaint and\r\nsuperstitious days of yore. There are enough statutes of this\r\nkind to fill periodically a column in Collier's magazine. Most\r\nstatutes thus rendered obsolete are not especially vicious, and\r\nmost of them are not enforced. It is safe to assume that most of\r\nthem would be struck down today if their constitutionality were\r\nchallenged, because what once may have appeared reasonable has\r\nbecome an absurdity.\r\n\r\nIt is, of course, conceded that the state in the exercise of the\r\npolice power may legislate for the protection of the health and\r\nwelfare of the people and in so doing may infringe to some extent\r\non the rights of individuals. But it is not conceded that a\r\nstate may legislate to the detriment of a class--a minority who\r\nare unable to protect themselves, when such legislation has no\r\nvalid purpose behind it. Nor may the police power be used as a\r\nguise to cloak prejudice and intolerance. Prejudice and\r\nintolerance are the cancers of civilization.\r\n\r\nIt is my position that the statutes now before us never were\r\nconstitutional. When first enacted, they violated the supreme\r\nlaw of the land as found in the Declaration of Independence. It\r\nis further my position that the Fourteenth Amendment to the\r\nConstitution of the United States invalidated the statutes here\r\ninvolved. In a powerful dissent in Plessy<\/i> v. Ferguson<\/i><\/a>, supra<\/i>,\r\nJustice Harlan said, at page 559:\r\n \"Our Constitution is color-blind, and neither knows nor\r\n tolerates classes among citizens. In respect of civil\r\n rights, all citizens are equal before the law. ... The\r\n law regards man as man, and takes no account of his\r\n surroundings or of his color when his civil rights as\r\n guaranteed by the supreme {Page 737} law of the land are\r\n involved ... the judgment this day rendered will, in\r\n time, prove to be quite as pernicious as the decision\r\n made by this tribunal in the Dred Scott<\/i> case.\"\r\nThis language needs no elaboration. The time at which this\r\njudgment has become pernicious has arrived.\r\n\r\nEven if I concede, which I do not, that the statutes here\r\ninvolved were at any time reasonable, they are no longer\r\nreasonable and therefore no longer valid today. The rule is that\r\nthe constitutionality of a statute is not determined once and for\r\nall by a decision upholding it. A change in conditions may\r\ninvalidate a statute which was reasonable and valid when enacted\r\n(Nashville, C. & St. L. Ry. Co.<\/i> v. Walters<\/i>, 294 U.S. 405 [55\r\nS.Ct. 486, 79 L.Ed. 949], 16 C.J.S. 150).\r\n\r\nIn this case, there are no decisions of either this court or the\r\nSupreme Court of the United States which uphold the validity of a\r\nstatute forbidding or invalidating miscegenous marriages. As has\r\nbeen pointed out, even if there were precedent, it would not\r\nnecessarily be binding in this case. The cases from other\r\njurisdictions are, of course, not binding here. Under the test\r\nlaid down by the United States Supreme Court in Plessy<\/i> v.\r\nFerguson<\/i><\/a>, supra<\/i>, the reasonableness of the regulation is\r\ntherefore the decisive factor. And there are decisions rendered\r\nin this state which definitely point the way as to what is to be\r\nconsidered \"reasonable\" and in accord with the public policy of\r\nthis state.\r\n\r\nThis court has upheld the validity of miscegenous marriages, so-\r\ncalled, when the marriage was entered into in a jurisdiction\r\nwhere no prohibition existed (Pearson<\/i> v. Pearson<\/i>, 51 Cal. 120,\r\n125). Under the well-settled rules of the law of Conflict of\r\nLaws, this court could have denied validity to such marriages,\r\nprovided they were \"odious\" to its own internal policy. It did\r\nnot do so, and it has indicated in other holdings in which the\r\nproblem of miscegenation was collaterally involved that it does\r\nnot consider the internal policy of this state one which would\r\nlead it to refuse validity to such marriages (Rest. of Conflicts\r\nof Laws, \u00a7 132 (c)).\r\n\r\nSome of the statutes of the type here under attack have been\r\nupheld as reasonably designed to prevent race rioting. The fact\r\nthat this court grants recognition to foreign miscegenous\r\nmarriages, valid where contracted, is enough to rebut that\r\nargument. Riots would either follow in both cases or in none. \r\nOne author sums up the problem by asking: \"Does this not mean\r\nthat the miscegenation statute applies only to {Page 738} those\r\nwho either have an inadequate knowledge of the law and\/or cannot\r\nafford the train fare to a state where the attempted marriage\r\nwould be valid?\" (Tragen, 32 Cal.L.Rev. 269, 277.)\r\n\r\nSo far as the policy of this court is concerned, there is no\r\nbasis for upholding the statutes. But it is said that it is not\r\nthe policy of the court but that of the Legislature which should\r\ncontrol. And there again, there are strong indications of\r\nlegislative trends and intentions which point the way. So far as\r\nemployment under public contracts is concerned, the laws of this\r\nstate forbid discrimination based on color (Lab. Code, \u00a7 1735). \r\nSo far as civil rights other than the right to marry are\r\nconcerned, they are guaranteed by Civil Code, section 52. The\r\nstatutes forbidding miscegenous marriages here under attack are\r\nfurther distinguished from statutes in other jurisdictions in\r\nthat they are entirely declaratory, while all the others carry\r\nwith them penalties for violation. This, too, would indicate an\r\nattitude of comparative indifference on part of the Legislature,\r\nand the absence of any clearly expressed public sentiment or\r\npolicy.\r\n\r\nThe legislation here under attack is also sought to be sustained\r\non the ground that a legislative enactment duly made and based on\r\n\"some evidence\" is presumptively valid. The general rule to that\r\neffect may be conceded. But it does not apply to a case of this\r\nkind. In cases involving discrimination, the rule is that laid\r\ndown by the Supreme Court of the United States in Korematsu<\/i> v.\r\nUnited States<\/i>, 323 U.S. 214, 216 [65 S.Ct. 193, 194, 89 L.Ed.\r\n194, 199], where the court speaking through Mr. Justice Black\r\nsaid: \"... all legal restrictions which curtail the civil rights\r\nof a single racial group are immediately suspect ... courts must\r\nsubject them to the most rigid scrutiny Pressing public\r\nnecessity may sometimes justify the existence of such\r\nrestrictions; racial antagonism never can.\" That suspicion which\r\nattaches to cases involving discrimination is sufficient to\r\novercome the presumption of validity and constitutionality\r\nnormally present when a statute is attacked as unconstitutional.\r\n\r\nFinally, the statute is sought to be upheld for \"sociological\"\r\nreasons. The evidence presented to sustain the statute and that\r\ntending to show it up as unreasonable falls into two groups. One\r\nis concerned with the social effect of such marriages on the\r\nparties and those close to them. That social ostracism may well\r\nresult to the parties and perhaps their offspring, may be\r\nconceded. But that is something {Page 739} which the state is\r\npowerless to control and which it cannot prevent by legislation. \r\nIt therefore furnishes no basis for legislation, either. It is\r\nsomething resting with the parties themselves, for them to\r\ndecide. If they choose to face this possible prejudice and think\r\nthat their own pursuit of happiness is better subserved by\r\nentering into this marriage with all its risks than by spending\r\nthe rest of their lives without each other's company and comfort,\r\nthe state should not and cannot stop them.\r\n\r\nThe other aspect of the evidence adduced is the medico-eugenic\r\none. A great deal has been written and said about the\r\ndesirability or undesirability of racial mixtures. The writers\r\nseem to be in such hopeless conflict that their lack of bias may\r\nwell be questioned. Suffice it to quote the following from\r\npetitioner's brief:\r\n\r\n \"The blood-mixing however, with the lowering of the\r\n racial level caused by it, is the sole cause of the\r\n dying-off of old cultures; for the people do not perish\r\n by lost wars, but by the loss of that force of resistance\r\n which is contained only in the pure blood.\r\n\r\n \"All that is not race in this world is trash.\"\r\n\r\n \"The result of any crossing, in brief, is always the\r\n following: (a) lowering of the standard of the higher\r\n race, (b) physical and mental regression, and, with it,\r\n the beginning of slowly but steadily progressive\r\n lingering illness.\"\r\n \r\n \"Every race-crossing leads necessarily sooner or later\r\n to the decline of the mixed product. The danger for the\r\n mixed product is abolished only in the moment of the\r\n bastardization of the last higher, racially pure\r\n element.\"\r\n \r\n \"... [T]here is only one most sacred human right, and\r\n this right is at the same time the most sacred\r\n obligation, namely, to see to it that the blood is\r\n preserved pure, so that by its preservation of the best\r\n human material a possibility is given for a more noble\r\n development of these human beings.\"\r\n\r\nThis quotation is from Hitler's \"Mein Kampf\" as published in\r\ntranslation in New York in 1940. To bring into issue the\r\ncorrectness of the writings of a madman, a rabble-rouser, a mass-\r\nmurderer, would be to clothe his utterances with an undeserved\r\naura of respectability and authoritativeness. Let us not forget\r\nthat this was the man who plunged the world into a war in which,\r\nfor the third time, Americans fought, bled, and died for the\r\ntruth of the proposition that all men are created equal.\r\n\r\n{Page 740}\r\nWe may take judicial notice of the fact--since it is a political\r\nand historical fact--that steady inroads have been made on the\r\nmyth of racial superiority and its outgrowths.\r\n\r\nThe rest of the world never has understood and never will\r\nunderstand why and how a nation, built on the premise that all\r\nmen are created equal, can three times send the flower of its\r\nmanhood to war for the truth of this premise and still fail to\r\ncarry it out within its own borders.\r\n\r\nIn 1682, Lord Nottingham said in the course of an opinion: \"Pray\r\nlet us so resolve Cases here, that they may stand with the Reason\r\nof Mankind when they are debated abroad. Shall that be Reason\r\nhere that is not Reason in any part of the World besides?\" (Duke\r\nof Norfolk's Case, 3 Ch.Cas. 1, 33, 22 Eng.Repr. 931, 935.)\r\n\r\nIn my opinion, the statutes here involved violate the very\r\npremise on which this country and its Constitution were built,\r\nthe very ideas embodied in the Declaration of Independence, the\r\nvery issue over which the Revolutionary War, the Civil War, and\r\nthe Second World War were fought, and the spirit in which the\r\nConstitution must be interpreted in order that the\r\ninterpretations will appear as \"Reason in any part of the World\r\nbesides.\"\r\n\r\nEDMONDS, J., concurring:\r\n\r\nI agree with the conclusion that marriage is \"something more than\r\na civil contract subject to regulation by the state; it is a\r\nfundamental right of free men.\" Moreover, it is grounded in the\r\nfundamental principles of Christianity. The right to marry,\r\ntherefore, is protected by the constitutional guarantee of\r\nreligious freedom, and I place my concurrence in the judgment\r\nupon a broader ground than that the challenged statutes are\r\ndiscriminatory and irrational.\r\n\r\nIn Cantwell<\/i> v. Connecticut<\/i>, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed.\r\n1213, 128 A.L.R. 1352] (1940), the United States Supreme Court,\r\nfor the first time expressly held that, through the due process\r\nclause of the Fourteenth Amendment, a state statute may be\r\ndeclared invalid if it violates the specific guarantee of\r\nreligious freedom as stated in the First Amendment. The\r\nconsequences of that decision were forcefully stated by Mr.\r\nJustice Jackson in West Virginia State Board of Education<\/i> v.\r\nBarnette<\/i>, 319 U.S. 624, 639 [63 S.Ct. 1178, 87 L.Ed. 1628, 147\r\nA.L.R. 674], as follows:\r\n \"In weighing arguments of the parties it is important to\r\n distinguish between the due process clause of the\r\n Fourteenth Amendment as an instrument of transmitting the\r\n principles of the First Amendment and {Page 741} those\r\n cases in which it is applied for its own sake. The test\r\n of legislation which collides with the Fourteenth\r\n Amendment, because it also collides with the principles\r\n of the First, is much more definite than the test when\r\n only the Fourteenth is involved. Much of the vagueness\r\n of the due process clause disappears when the specific\r\n prohibitions of the First become its standard. The right\r\n of a State to regulate, for example, a public utility may\r\n well include, so far as the due process test is\r\n concerned, power to impose all of the restrictions which\r\n a legislature may have a 'rational basis' for adopting.\r\n But freedom of speech and of press, of assembly, and of\r\n worship may not be infringed on such slender grounds.\r\n They are susceptible of restriction only to prevent grave\r\n and immediate danger to interests which the State may\r\n lawfully protect.\"\r\n\r\nReasonable classification, therefore, is not the test to be\r\napplied to a statute which interferes with one of the fundamental\r\nliberties which are protected by the First Amendment. The\r\nquestion is whether there is any \"clear and present danger\"\r\njustifying such legislation (Craig<\/i> v. Harney<\/i>, 331 U.S. 367, 372\r\n[67 S.Ct. 1249, 91 L.Ed. 1546]; Pennekamp<\/i> v. Florida<\/i>, 328 U.S.\r\n331, 333 [66 S.Ct. 1029, 90 L.Ed. 1295]; Cantwell<\/i> v. Connecticut<\/i>,\r\nsupra<\/i>, at p. 311; Herndon<\/i> v. Lowry<\/i>, 301 U.S. 242, 256 [57 S.Ct.\r\n732, 81 L.Ed. 1066]; Schenck<\/i> v. United States<\/i>, 249 U.S. 47, 52\r\n[39 S.Ct. 247, 63 L.Ed. 470]), and the burden of upholding the\r\nenactment is upon him who asserts that the acts which are\r\ndenounced do not infringe the freedom of the individual. (Busey<\/i>\r\nv. District of Columbia<\/i>, 138 F.2d 592, 595.)\r\n\r\nIn the present case, the respondent does not claim that there is\r\nany clear and present danger justifying the restrictions imposed\r\nby sections 60 and 69 of the Civil Code. In 18 states, including\r\nNew York, Illinois and Pennsylvania, where about 10 per cent of\r\nthe Negroes of the United States reside, there are no such\r\nlimitations. The population of California, to a large extent, is\r\nmade up of people who have come to it from other sections of the\r\ncountry, and if there are undesirable consequences of interracial\r\nmarriages, the challenged legislation is an ineffective means of\r\nmeeting the problem.\r\n\r\nThe decisions upholding state statutes prohibiting polygamy come\r\nwithin an entirely different category. In Reynolds<\/i> v. United\r\nStates<\/i>, 98 U.S. 145 [25 L.Ed. 244], marriage was said to be,\r\n\"from its very nature a sacred obligation,\" but the conviction\r\nwas sustained upon the ground that polygamy {Page 742} violates\r\n\"the principles upon which the government of the people, to a\r\ngreater or less extent, rests.\" Later, the court characterized\r\nthe practice of polygamy as being \"contrary to the spirit of\r\nChristianity and of the civilization which Christianity has\r\nproduced in the Western world\" (Church of Jesus Christ of L. D.\r\nS.<\/i> v. United States<\/i>, 136 U.S. 1 [10 S.Ct. 792, 34 L.Ed. 478]; see\r\nDavis<\/i> v. Beason<\/i>, 133 U.S. 333 [10 S.Ct. 299, 33 L.Ed. 637]). In\r\neffect, therefore, these cases rest upon the principle that the\r\nconduct which the legislation was designed to prevent constituted\r\na clear and present danger to the well being of the nation and,\r\nfor that reason, the statute did not violate constitutional\r\nguarantees.\r\n\r\n\r\nSHENK, J.\r\nI dissent.\r\n\r\nThe power of a state to regulate and control the basic social\r\nrelationship of marriage of its domiciliaries is here challenged\r\nand set at nought by a majority order of this court arrived at\r\nnot by a concurrence of reasons but by the end result of four\r\nvotes supported by divergent concepts not supported by authority\r\nand in fact contrary to the decisions in this state and\r\nelsewhere.\r\n\r\nIt will be shown that such laws have been in effect in this\r\ncountry since before our national independence and in this state\r\nsince our first legislative session. They have never been\r\ndeclared unconstitutional by any court in the land although\r\nfrequently they have been under attack. It is difficult to see\r\nwhy such laws, valid when enacted and constitutionally\r\nenforceable in this state for nearly 100 years and elsewhere for\r\na much longer period of time, are now unconstitutional under the\r\nsame Constitution and with no change in the factual situation. \r\nIt will also be shown that they have a valid legislative purpose\r\neven though they may not conform to the sociogenetic views of\r\nsome people. When that legislative purpose appears it is\r\nentirely beyond judicial power, properly exercised, to nullify\r\nthem.\r\n\r\nThis proceeding, therefore, involves a most important state\r\nfunction long since recognized as such. Indeed as late as June\r\n7, 1948, it has been recognized by the Supreme Court of the\r\nUnited States \"that the regulation of the incidents of the\r\nmarital relation involves the exercise by the states of powers of\r\nthe most vital importance.\" (Sherrer<\/i> v. Sherrer<\/i>, 334 U.S. 343 [68\r\nS.Ct. 1087, 92 L.Ed. 1429].) Because of the far-reaching effect\r\nof an order of this court in connection {Page 743} with this\r\nbasic social relationship the subject is worthy of somewhat\r\nextended discussion in support of our statutes.\r\n\r\nAccording to the verified petition for the writ of mandamus to\r\ncompel the issuance of a marriage license, Andrea D. Perez is a\r\nwhite person and Sylvester S. Davis, Jr., is a Negro. Respondent\r\ncounty clerk rests his refusal to issue a certificate and license\r\nto them on the ground that he is expressly prohibited from so\r\ndoing by the provisions of section 69 of the Civil Code, and upon\r\nthe further ground that their purported marriage in this state\r\nwould be illegal and void. (Civ. Code, \u00a7 60.)\r\n\r\nSection 69 of the Civil Code contains the following proviso: \"...\r\nno license may be issued authorizing the marriage of a white\r\nperson with a Negro, mulatto, Mongolian or member of the Malay\r\nrace.\" And complementary section 60 of the same code reads: \"All\r\nmarriages of white persons with negroes, Mongolians, members of\r\nthe Malay race, or mulattoes are illegal and void.\"\r\n\r\nPetitioners first contend that the above quoted statutory\r\nprovisions deprive them of the religious freedom guaranteed by\r\nthe First and Fourteenth Amendments of the federal Constitution\r\nand article I, section 4, of the Constitution of this state. \r\nThey allege that they are members and communicants of the Roman\r\nCatholic Church; that it is the dogma, belief and teaching of the\r\nchurch that a person of the white race and a person of the Negro\r\nrace, if otherwise eligible, are entitled to receive conjointly\r\nthe sacrament of matrimony and to intermarry; that the refusal of\r\nrespondent to issue the license denies to them the right to\r\nparticipate fully in the sacramental life of the religion in\r\nwhich they believe, prohibits the free exercise by them of their\r\nreligion, and violates the guaranty of the free exercise and\r\nenjoyment of their religious profession and worship. It is\r\nfurther alleged that section 69 of the Civil Code is arbitrary,\r\ncapricious and without reasonable relation to any purpose within\r\nthe competency of the state to effect.\r\n\r\nRespondent on the other hand contends that the classifications\r\ncontained in sections 60 and 69 of the Civil Code do not\r\ntransgress the petitioners' freedom of religious worship; that\r\nsuch classifications are reasonably designed to promote the\r\ngeneral welfare and the interests of individual members of the\r\nraces mentioned, and that the regulation is therefore a proper\r\nexercise of the police power of the state.\r\n\r\n{Page 744}\r\nAt the outset it may be noted that the petitioners' alleged right\r\nto marry is not a part of their religion in the broad sense that\r\nit is a duty enjoined by the church, or that penalty and\r\npunishment may in some manner ensue (cf. Reynolds<\/i> v. United\r\nStates<\/i>, 98 U.S. 145, 161 [25 L.Ed. 244]); but rather that their\r\nmarriage is permissive under the dogma, beliefs and teaching of\r\nthe church to which they claim membership and that the sacrament\r\nof matrimony will be administered to them by a priest of the\r\nchurch if and when a license issues. In this connection Father\r\nJohn La Farge, executive editor of \"America,\" the national\r\nCatholic weekly, in a book entitled \"The Race Question and The\r\nNegro\" (Permissu Superiorum), (1943), states at page 196: \"The\r\nCatholic Church does not impose any impediment, diriment\r\nimpediment, upon racial intermarriage, in spite of the Church's\r\ngreat care to preserve in its utmost purity the integrity of the\r\nmarriage bond.\r\n\r\n\"On the other hand, where such intermarriages are prohibited by\r\nlaw, as they are in several states of the Union, the Church bids\r\nher ministers to respect these laws, and to do all that is in\r\ntheir power to dissuade persons from entering into such unions.\"\r\n\r\nThe foregoing is mentioned to show that the attitude of the\r\nchurch has no particular bearing on the asserted rights of the\r\npetitioners. Its attitude is one of respect for local laws and\r\nan admonition to its clergy to advise against their infringement.\r\n\r\nOther considerations are presented in connection with\r\npetitioners' contentions that their religious liberty is being\r\ninfringed. The First Amendment to the United States Constitution\r\ndeclares that Congress shall make no law respecting an\r\nestablishment of religion or prohibit the free exercise thereof. \r\nThe due process of law clause of the Fourteenth Amendment\r\nembraces this fundamental concept of liberty as expressed in the\r\nFirst Amendment and renders the states likewise incompetent to\r\ntransgress it. However, this religious liberty \"embraces two\r\nconcepts,--freedom to believe and freedom to act. The first is\r\nabsolute but, in the nature of things, the second cannot be.\"\r\n(Cantwell<\/i> v. Connecticut<\/i>, 310 U.S. 296, 303 [60 S.Ct. 900, 84\r\nL.Ed. 1213, 128 A.L.R. 1352]; Murdock<\/i> v. Pennsylvania<\/i>, 319 U.S.\r\n105, 110 [63 S.Ct. 870, 891, 87 L.Ed. 1292, 146 A.L.R. 81];\r\nGospel Army<\/i> v. City of Los Angeles<\/i>, 27 Cal.2d 232 [163 P.2d\r\n704].) It has long {Page 745} been held that conduct, consisting\r\nof practices and acts, remains subject to regulation for the\r\nhealth, safety and general welfare. For example, a legislative\r\ndetermination that monogamy is the \"law of social life\" has been\r\nheld to prevail over the practice of polygamy and bigamy as a\r\nduty required, encouraged or suffered by religion. (Reynolds<\/i> v.\r\nUnited States<\/i>, supra<\/i>, 98 U.S. 145; Davis<\/i> v. Beason<\/i>, 133 U.S. 333\r\n[10 S.Ct. 299, 33 L.Ed. 637]; Cleveland<\/i> v. United States<\/i>, 329\r\nU.S. 14 [67 S.Ct. 13, 91 L.Ed. 12].)\r\n\r\nThe reasoning behind this construction of the Constitution is\r\nobvious. The determination of proper standards of behavior must\r\nbe left to the Congress or to the state legislatures in order\r\nthat the well being of society as a whole may be safeguarded or\r\npromoted. The protection of the individual's exercise of\r\nreligious worship afforded by our state Constitution, article I,\r\nsection 4, corresponds with that furnished by the federal\r\nguaranty as interpreted by the United States Supreme Court. Our\r\nConstitution expressly provides that the free exercise of\r\nreligion guaranteed \"shall not be so construed as to ... justify\r\npractices inconsistent with the peace or safety of this State.\"\r\n\r\nMoreover, the right of the state to exercise extensive control\r\nover the marriage contract has always been recognized. The\r\ninstitution of matrimony is the foundation of society, and the\r\ncommunity at large has an interest in the maintenance of its\r\nintegrity and purity. (Sharon<\/i> v. Sharon<\/i>, 75 Cal. 1 [16 P. 345];\r\n16 Cal.Jur. 909.) The Supreme Court of the United States has\r\nstated: \"Marriage, as creating the most important relation in\r\nlife, as having more to do with the morals and civilization of a\r\npeople than any other institution, has always been subject to the\r\ncontrol of the legislature.\" (Maynard<\/i> v. Hill<\/i>, 125 U.S. 190, 205\r\n[8 S.Ct. 723, 31 L.Ed. 654].) And: \"Marriage, while from its very\r\nnature a sacred obligation, is nevertheless, in most civilized\r\nnations, a civil contract, and usually regulated by law. Upon it\r\nsociety may be said to be built, and out of its fruits spring\r\nsocial relations and social obligations and duties, with which\r\ngovernment is necessarily required to deal.\" (Reynolds<\/i> v. United\r\nStates<\/i>, supra<\/i>, 98 U.S. 145, 165.) In the language of the Supreme\r\nCourt of Missouri: \"The right to regulate marriage, the age at\r\nwhich persons may enter into that relation, the manner in which\r\nthe rites may be celebrated, and the persons between whom it may\r\nbe contracted, has been assumed and exercised by every {Page 746}\r\ncivilized and Christian nation.\" (State<\/i> v. Jackson<\/i>, 80 Mo. 175,\r\n179 [50 Am.Rep. 499].) Further: \"There can be no doubt as to the\r\npower of every country to make laws regulating the marriage of\r\nits own subjects; to declare who may marry, how they may marry,\r\nand what shall be the legal consequences of their marrying. The\r\nright to regulate the institution of marriage; to classify the\r\nparties and persons who may lawfully marry; to dissolve the\r\nrelation by divorce; and to impose such restraints upon the\r\nrelation as the laws of God, and the laws of propriety, morality\r\nand social order demand, has been exercised by all civilized\r\ngovernments in all ages of the world.\" (Kinney<\/i> v. The\r\nCommonwealth<\/i>, 30 Gratt. (Va.) 858, 862 [32 Am.Rep. 690].)\r\n\r\nIt is apparent from what has been said that if the law under\r\nattack bears a substantial relationship to the health, safety,\r\nmorals or some other phase of the general welfare of the people\r\nof this state, it would not be invalid because incidentally in\r\nconflict with the conduct and practice of a particular religious\r\ngroup. Similarly if there is a rational basis for the law, if it\r\nis reasonable, and all within a given class are treated alike,\r\nthere is no violation of the due process or equal protection\r\nclauses of the Fourteenth Amendment to the United States\r\nConstitution. (See Missouri ex rel. Gaines<\/i> v. Canada<\/i>, 305 U.S.\r\n337 [59 S.Ct. 232, 83 L.Ed. 208]; Buck<\/i> v. Bell<\/i>, 274 U.S. 200 [47\r\nS.Ct. 584, 71 L.Ed. 1000]; Radice<\/i> v. New York<\/i>, 264 U.S. 292 [44\r\nS.Ct. 325, 68 L.Ed. 690]; Patsone<\/i> v. Pennsylvania<\/i>, 232 U.S. 138\r\n[34 S.Ct. 281, 58 L.Ed. 539]; Noble State Bank<\/i> v. Haskell<\/i>, 219\r\nU.S. 104 [31 S.Ct. 186, 55 L.Ed. 112].)\r\n\r\nThe prohibition of miscegenetic marriage is not a recent\r\ninnovation in this state nor is such a law by any means unique\r\namong the states. A short history of miscegenetic marriage laws\r\nin this state and elsewhere will contribute to a better\r\nunderstanding of the problem at hand. A law declaring marriages\r\nbetween white persons and Negroes to be illegal and void was\r\nenacted at the first session of our Legislature. (Stats. 1850,\r\nch. 140, p. 424.) Section 60 of the Civil Code declaring certain\r\nmarriages invalid has existed since the advent of our codes in\r\n1872, at which time it extended only to intermarriage between\r\nwhite persons and Negroes or mulattoes. It succeeded the\r\nprohibition against such marriages found in the above-mentioned\r\nstatutes of 1850. Section 60 was amended in 1905 to include\r\nmarriage between white persons and Mongolians (Stats. 1905, p.\r\n554). The provisions of the law here attacked {Page 747} have\r\nremained unchallenged for nearly one hundred years and have been\r\nunchanged so far as the marriage of whites with Negroes is\r\nconcerned. To indicate that the subject matter is not merely of\r\nancient legislative consideration it should be noted that in 1933\r\nthe District Court of Appeal decided that sections 60 and 69 did\r\nnot prohibit the marriage in this state of a white woman and a\r\nFilipino--a member of the Malay race (Roldan<\/i> v. Los Angeles\r\nCounty<\/i>, 129 Cal.App. 267 [18 P.2d 706]). That case was decided on\r\nJanuary 27, 1933. Without delay the Legislature amended both\r\nsections to extend the prohibition to marriages also as between\r\nwhite persons and members of the Malay race. The amendatory\r\nmeasures passed both houses of the Legislature and were signed by\r\nthe governor on April 20th of the same year (Stats. 1933, p. 561)\r\nthus rendering nugatory the decision in the Roldan case--which\r\nwas the obvious purpose of the legislation. As above indicated\r\nthe present concern with the legislation is only as it affects\r\nmarriages between white persons and Negroes.\r\n\r\nTwenty-nine states in addition to California have similar laws. \r\n(Rhodes, \"Annullment of Marriage\" (1945); Charles S. Manguin,\r\nJr., \"The Legal Status of the Negro\" (1940).) Six of these states\r\nhave regarded the matter to be of such importance that they have\r\nby constitutional enactments prohibited their legislatures from\r\npassing any law legalizing marriage between white persons and\r\nNegroes or mulattoes. Several states refuse to recognize such\r\nmarriages even if performed where valid (see Charles S. Manguin,\r\nJr., \"The Legal Status of the Negro\" (1940); In re Takahashi's\r\nEstate<\/i>, 113 Mont. 490 [129 P.2d 217]), particularly if an attempt\r\nhas been made by residents of a state to evade the law (Eggers<\/i> v.\r\nOlson<\/i>, 104 Okla. 297 [231 P. 483]; State<\/i> v. Kennedy<\/i>, 76 N.C. 251\r\n[22 Am.Rep. 683]). The infrequency of such unions is perhaps the\r\nchief reason why prohibitive laws are not found in the remaining\r\nstates. (Reuter, \"Race Mixture\" (1931), p. 39; Rhodes,\r\n\"Annullment of Marriage\" (1945), pp. 101, 102.)\r\n\r\nThe ban on mixed marriages in this country is traceable from the\r\nearly colonial period. For example, Maryland forbade the\r\npractice of marriage unions between Negroes or Indians and white\r\npersons as early as 1663. Laws forbidding marriages between\r\nNegroes and whites were passed in Massachusetts in 1705, in\r\nDelaware in 1721, in Virginia in 1726, {Page 748} and in North\r\nCarolina in 1741. In 1724, it was decreed in France that no\r\nNegro-white marriages were to take place in Louisiana. Most of\r\nthe remaining states enacted similar legislation in the period\r\nbetween the formation of the United States and the Civil War.\r\n\r\nResearch has not disclosed a single case where a miscegenetic\r\nmarriage law has been declared invalid. As stated in Estate of\r\nMonks<\/i>, 48 Cal.App.2d 603, 612 [120 P.2d 167]: \"Many states have\r\nstatutes prohibiting such alliances, and we have had presented no\r\ninstance of successful constitutional attacks upon them or any of\r\nthem.\" Not only the state courts but the federal courts as well\r\nhave uniformly sustained the validity of such laws. One of the\r\nmost recent decisions upon the subject is that of the United\r\nStates Circuit Court of Appeals for the 10th Circuit in the case\r\nof Stevens<\/i> v. United States<\/i>, 146 F.2d 120, 123, decided December\r\n18, 1944. The court there said: \"Section 12 [Title 43, Oklahoma\r\nSt. 1941], making unlawful marriages between persons of African\r\ndescent and persons of other races or descents is challenged on\r\nthe ground that it violates the Fourteenth Amendment. Marriage\r\nis a consentient covenant. It is a contract in the sense that it\r\nis entered into by agreement of the parties. But it is more than\r\na civil contract between them, subject to their will and pleasure\r\nin respect of effects, continuance, or dissolution. It is a\r\ndomestic relation having to do with the morals and civilization\r\nof a people. It is an essential institution in every well\r\norganized society. It affects in a vital manner public welfare,\r\nand its control and regulation is a matter of domestic concern\r\nwithin each state. A state has power to prescribe by law the age\r\nat which persons may enter into marriage, the procedure essential\r\nto constitute a valid marriage, the duties and obligations which\r\nit creates, and its effect upon the property rights of both\r\nparties. Maynard<\/i> v. Hill<\/i>, 125 U.S. 190 [8 S.Ct. 723, 31 L.Ed.\r\n654]. And within the range of permissible adoption of policies\r\ndeemed to be promotive of the welfare of society as well as the\r\nindividual members thereof, a state is empowered to forbid\r\nmarriages between persons of African descent and persons of other\r\nraces or descents. Such a statute does not contravene the\r\nFourteenth Amendment.\"\r\n\r\nIn Pace<\/i> v. Alabama<\/i>, 106 U.S. 583 [1 S.Ct. 637, 27 L.Ed. 207], the\r\nUnited States Supreme Court had before it a statute of the State\r\nof Alabama declaring that \"if any white person and any negro ...\r\nintermarry or live in adultery or {Page 749} fornication with\r\neach other, each of them must, on conviction, be imprisoned in\r\nthe penitentiary or sentenced to hard labor for the county for\r\nnot less than two nor more than seven years.\" A Negro man and\r\nwhite woman had been convicted in the courts of Alabama of\r\nfornication. Upon writ of error to the United States Supreme\r\nCourt it was contended that the statute was in conflict with the\r\nequal protection of law clause of the United States Constitution\r\nbecause greater punishment was provided than by another law\r\nrelating to the same offense committed by peoples of the same\r\nrace. The Supreme Court of the United States in upholding the\r\nstatute and affirming the judgment of conviction stated:\r\n \"The defect in the argument of counsel consists in his\r\n assumption that any discrimination is made by the laws\r\n of Alabama in the punishment provided for the offense for\r\n which the plaintiff in error was indicted when committed\r\n by a person of the African race and when committed by a\r\n white person. The two sections of the code cited are\r\n entirely consistent. The one prescribes, generally, a\r\n punishment for an offense committed between persons of\r\n different sexes; the other prescribes a punishment for\r\n an offense which can only be committed where the two\r\n sexes are of different races. ... Whatever discrimination\r\n is made in the punishment prescribed in the two sections\r\n is directed against the offense designated and not\r\n against the person of any particular color or race. The\r\n punishment of each offending person, whether white or\r\n black, is the same.\"\r\n\r\nIn State<\/i> v. Tutty<\/i>, 41 F. 753 [7 L.R.A. 50], where a statute was\r\nheld not in deprivation of rights under the federal Constitution,\r\nit was said:\r\n \"The court will not discuss the argument of defendants'\r\n counsel to the effect that the intermarriages of whites\r\n and blacks do not constitute an evil or an injury against\r\n which the state should protect itself. This is a question\r\n which has been, as we have seen, the subject of repeated\r\n judicial deliverances; but it is more properly, in the\r\n opinion of this court, within the range of legislative\r\n duty. It is enough, for the purpose of its duty, for the\r\n court to ascertain that by a legitimate and settled\r\n policy the state of Georgia has declared such marriages\r\n unlawful and void; for while, in this country, the home\r\n life of the people, their decency and their morality, are\r\n the bases of that vast social structure of liberty, and\r\n obedience to law, which excites the patriotic pride of\r\n our countrymen and the admiration of the {Page 750}\r\n world, and while these attributes of our citizenship\r\n should be cherished and protected by all in authority,\r\n and the creatures who defy them should be condemned by\r\n all, the courts, in their judicial functions, are rarely\r\n concerned with the policy of the laws which are made to\r\n protect the community. The policy of the state upon this\r\n subject has been declared, as we have seen, by its\r\n supreme court as well as by its statutes, and it is\r\n enough to say that this court is unable to discover\r\n anything in that policy with which the federal courts\r\n have the right or the power to interfere.\"\r\n\r\nIn Scott<\/i> v. State of Georgia<\/i>, 39 Ga. 321, the Supreme Court of\r\nGeorgia said of a provision of the state Constitution prohibiting\r\nmarriages between whites and Negroes, and declaring all such\r\nmarriages void: \r\n \"With the policy of this law we have nothing to do. It\r\n is our duty to declare what the law is, not to make law.\r\n For myself, however, I do not hesitate to say that it was\r\n dictated by wise statesmanship, and has a broad and solid\r\n foundation in enlightened policy, sustained by sound\r\n reason and common sense. The amalgamation of the races\r\n is not only unnatural, but is always productive of\r\n deplorable results. ... The power of the Legislature over\r\n the subject matter when the Code was adopted, will not,\r\n I suppose, be questioned. The Legislature certainly had\r\n as much right to regulate the marriage relation by\r\n prohibiting it between persons of different races as they\r\n had to prohibit it between persons within the Levitical\r\n degrees, or between idiots. Both are necessary and proper\r\n regulations. And the regulation now under consideration\r\n is equally so.\"\r\n\r\nIn State<\/i> v. Jackson<\/i>, supra<\/i> (80 Mo. 175), the Supreme Court of\r\nMissouri reversed a judgment sustaining a demurrer to an\r\nindictment charging a white woman with violation of a statute\r\nmaking marriages between white persons and Negroes a felony. The\r\ncourt said that the law might\r\n \"interfere with the tastes of negroes who want to marry\r\n whites, or whites who wish to intermarry with negroes,\r\n but the State has the same right to regulate marriage in\r\n this respect that it has to forbid the intermarriage of\r\n cousins and other blood relations. If the State desires\r\n to preserve the purity of the African blood by\r\n prohibiting intermarriage between whites and blacks, we\r\n know of no power on earth to prevent such legislation. \r\n It is a matter of purely domestic concern. The 14th\r\n amendment to the Constitution of the United States ...\r\n has no such scope as seems to have been accorded it by\r\n the circuit court. ... All of one's rights as a citizen\r\n of the United States {Page 751} will be found guaranteed\r\n by the Constitution of the United States. If any\r\n provision of that instrument confers upon a citizen the\r\n right to marry any one who is willing to wed him, our\r\n attention has not been called to it. If such be one of\r\n the rights attached to American citizenship all our\r\n marriage acts forbidding intermarriage between persons\r\n within certain degrees of consanguinity are void ...\r\n [T]he condition of a community, moral, mental and\r\n physical, which would tolerate indiscriminate\r\n intermarriage for several generations, would demonstrate\r\n the wisdom of laws which regulate marriage and forbid the\r\n intermarriage of those nearly related in blood.\"\r\n\r\nThe Supreme Court of Oklahoma, in Eggers<\/i> v. Olson<\/i>, supra<\/i> (104\r\nOkla. 297 [231 P. 483, 486]), said: \"The inhibition, like the\r\nincestuous marriage, is in the blood, and the reason for it is\r\nstronger still.\" The court quoted from 18 R.C.L., section 31, p.\r\n409, in part, as follows:\r\n \" 'Civilized society has the power of self preservation,\r\n and, marriage being the foundation of such society, most\r\n of the states in which the negro forms an element of any\r\n note have enacted laws inhibiting intermarriage between\r\n the white and black races ... Statutes forbidding\r\n intermarriage by the white and black races were without\r\n doubt dictated by wise statesmanship, and have a broad\r\n and solid foundation in enlightened policy, sustained by\r\n sound reason and common sense. The amalgamation of the\r\n races is not only unnatural, but is always productive of\r\n deplorable results. The purity of the public morals, the\r\n moral and physical development of both races, and the\r\n highest advancement of civilization, under which the two\r\n races must work out and accomplish their destiny, all\r\n require that they should be kept distinctly separate, and\r\n that connections and alliances so unnatural should be\r\n prohibited by positive law and subject to no evasion.'\r\n \"\r\n\r\nThe miscegenation law of our neighboring state of Oregon (Ore.\r\nL., \u00a7 2163) was held valid by the Supreme Court of that state in\r\nIn re Paquet's Estate<\/i>, 101 Ore. 393 [200 P. 911]. In so holding\r\nthe court directed attention to 8 R.C.L. section 381 where it is\r\nsaid: \"Miscegenation is a purely statutory offense, consisting in\r\nthe intermarriage of a person of the white race with a negro or\r\ncolored person. Most states in which the negro or colored people\r\nform an appreciable element have enacted these laws inhibiting\r\nintermarrying between the white and black races, and the offense\r\nthereby created is usually of the grade of a felony. There can\r\nbe no doubt as {Page 752} to the power of every country to make\r\nlaws regulating the marriage of its own subjects; to declare who\r\nmay marry, how they may marry, and what shall be the legal\r\nconsequences of their marrying; and accordingly, although\r\nmiscegenation statutes have been persistently attacked on the\r\nground that they are violative of the United States Constitution,\r\nthey have been universally upheld as a proper exercise of the\r\npower of each state to control its own citizens.\" (See also 36\r\nAm.Jur., Miscegenation, \u00a7 3.)\r\n\r\nThe foregoing views are representative of the general tenor of\r\njudicial opinion which has been expressed elsewhere. Without\r\nfurther amplification reference may be made to cases in Arizona\r\n(State<\/i> v.