Chief Justice Earl Warren: Number 395, Richard Perry Loving, et al., Appellants, versus Virginia. Mr. Hirschkop.
Bernard S. Cohen: Mr. Chief Justice, may it please the Court. I am Bernard S. Cohen. I would like to move the admission of Mr. Philip J. Hirschkop pro hac vice, my co-counsel in this matter. He is a member of the Bar of Virginia.
Chief Justice Warren: Your motion is granted. Mr. Hirschkop, you may proceed.
Philip J. Hirschkop: Thank you, Your Honor. Mr. Chief Justice, Associate Justices, may it please the Court. We will divide the argument. Accordingly, I will handle the Equal Protection argument as we view it and Mr. Cohen will argue the Due Process argument.
You have before you today what we consider the most odious of the segregation laws and the slavery laws, and our view of this law, we hope to clearly show, is that this is a slavery law. We referred to the law itself—oh, at first, I’d like to bring the Court’s attention, there are some discrepancy in the briefs between us and the commonwealth, especially, as to which laws are in essence. They have particularly said that Section 20–58 and 20–59 of the Virginia Code are the only things for consideration by this Court, and those two Sections, of course, are the criminal section, making a criminal penalty for Negro and white to intermarry in the state of Virginia. 20–58 is the evasion section under which this case particularly arose, which makes it a criminal act to people who go outside the state to avoid the laws of Virginia to get married.
We contend, however, Your Honors, that there is much more in essence here. That there’s actually one simple issue, and the issue is, may a state proscribe a marriage between two adult consenting individuals because of their race, and this would take in much more in the Virginia statutes. Sections 20–54 and 20–57 void such marriages, and if they void such marriages, you would only decide on 20–58 and 20–59, these people, were they go back to Virginia and they are in Virginia now, will be subject to immediate arrest under the fornest—fornication statute, and the lewd and lascivious cohabitation statute, and more than that, there are many, many other problems with these. Their children would be declared bastards under many Virginia decisions. They themselves would lose their rights for insurance, social security, and numerous other things to which they’re entitled.
So we strongly urge the Court in considering this, to consider this basic question, may the state proscribe a marriage between such individuals because of their race and their race alone.
Justice John M. Harlan: How many states (Inaudible)?
Mr. Hirschkop: There are sixteen states, Your Honors, that have these states. Presently, Maryland just repealed theirs. These all are southern states with four or five border southern states as Oklahoma and Missouri and Delaware. There have been in recent years two, Oklahoma and Missouri, that have had bills to repeal them but they did not pass the statute.
Now, in dealing with the equal protection argument, we feel that on its face, on its face, these laws violate the equal protection of the laws. They violate the Fourteenth Amendment, and in dealing with this, we look at the arguments advanced by the state, and there’re basically two arguments advanced by the state. On one hand, they say the Fourteenth Amendment specifically exempted marriage from its limitations. On the other hand, they say if it didn’t, that Maynard versus Hill doctrine would apply here, that this is only for the state to legislate upon.
In replying to that, we think their health and welfare aspect of it is in essence, and we hope to show to the Court, these are not health and welfare laws. These are slavery laws, pure and simple.
Now for this reason, we went to some length in our brief to go into the history of these laws, to look at why Virginia passed these laws and why other states have these laws on a books and how they used these laws. Without reiterating what is in the brief, I will just refer to that history very briefly. As we pointed out in the brief, laws go back to the 1600s. The 1691 act is the first basic Act we have. There was a 1662 act, which held that the child of a Negro woman and a white man would be free or slave according to the condition of his mother. It’s a slavery law, and it was only concerned with one thing, and it’s an important element in this matter. Negro man, white woman—that’s all they were really concerned with. I think maybe all these still concern with. It’s the purity of the white woman, not the purity of the Negro woman.
These laws robbed the Negro race of their dignity. It’s the worst part of these laws, and that’s what they’re meant to do, to hold the Negro class in a lower position, the lower social position, the lower economic position. 1691 was the first basic act and it was entitled “An Act for the suppressing of outlying slaves,” and the language of the act is important, which is why we go back to it, because they talk about “the prevention of that abominable mixture and spurious issue,” and we’ll see that language time and again throughout all the judicial decisions referred to by the state. And then they went into two centuries of trying to figure out who these people were that they were proscribing.
I won’t touch upon all the states. I understand amicus will do that. But at one time, in 1705 it was a person with one-eighth or more Negro blood, and then in 1785, it became person with one quarter or more, and it went on and on. It wasn’t until 1930 that we finally arrived that what a Negro is in the state of Virginia, that’s a person with any traceable Negro blood, a matter which we think defies any scientific interpretation.
And the first real judicial decision we get in Virginia was in 1878 when the Kinney versus Commonwealth case came down. And there again, we have a very interesting decision because in Kinney versus Commonwealth, they talk about the public policy of the state of Virginia.
Now what that public policy was and how would it be applied. If Your Honors will indulge me, I have the language here, which is the language that had carried through, through the history of Virginia. And they talk about “spurious issue” again, and that is what’s constantly carried through and carried through for “An act for the suppressing of outlying slaves.” And they talk about the church, southern civilization, but they didn’t speak about the southern civilization as a whole, but this white southern civilization.
And they want the race as kept distinct and separate, the same thing this Court has heard since Brown and before Brown, but it’s heard so many times during the Brown argument and since the Brown argument.
And they talk about alliances so unnatural that God has forbidden them, and this language—
Justice Hugo L. Black: Would you mind telling me what case that was?
Mr. Hirschkop: That’s Kinney versus Commonwealth, Your Honor.
Justice Black: Kinn—
Mr. Hirschkop: Kinney, K-I-N-N-E-Y. And then in 1924, in the period of great hysteria in the United States, a historical period we’re all familiar with, a period when the West was in arms over the yellow peril and western states were thinking about these laws or some got them then, a period when the immigration laws were being passed to the United States because the North was worried about the great influx of Italian immigrants and Irish immigrants, a period when the Klan rode openly in the South,and that’s when they talked about bastardy of races, and miscegenation and amalgamation and race suicide became the watch word, and John Powell, a man we singled out in our brief, a noted pianist of his day, started taking up the Darwin theory and perverting it through the theory of eugenics—a theory that applied to animals, to pigs and hogs and cattle—and started applying it to human beings. In taking Darwinism that the Negro race was the stepping stone, was that Lost Man we’ve always been looking for, between the white man and the Abominable Snowman, or whoever else they went back. And that’s when the Anglo-Saxon Clubs formed in the state of Virginia, and that’s when Virginia legislature passed our present body of law. They took all these old laws, these antebellum and postbellum laws, and they put them together into what we presently have.
Chief Justice Warren: How many states for the first time in that—in the twenties passed these kinds of laws, do you recall?
Mr. Hirschkop: Your Honor, to the best of our knowledge, basically most states had them. It was just Virginia and then Georgia copied the Virginia act, which had such a complete act, and it was described in many places as the most perfect model with this type of act.
Chief Justice Warren: But you were saying that the western states and the eastern states and others during the 1924 period passed these laws, as I understood you.
Mr. Hirschkop: Most—No, Your Honor, most of them actually had them on the books.
Chief Justice Warren: I see, all right.
Mr. Hirschkop: They—with summary codification, this one Virginia strove to do this to make a perfect model law and only Georgia followed. And it was expected from our reading of history that many other states would follow, but they just let remain what they had. There was very few repeals in those days. Actually, the great body of repeal has been since Brown with thirteen states have repealed since that time.
Chief Justice Warren: Yes. Well, what relevance does that 1924 period have to this?
Mr. Hirschkop: Because some of the statutes we have were enacted then. All the registration statutes were enacted in the 1924 period, Your Honor. These are the statutes basically which you have to have a—a certificate of racial composition in the state of Virginia. The statutes which we find absolutely mostly odious, the statutes will reflect back to Nazi Germany and to the present South African situation.
Chief Justice Warren: I see.
Mr. Hirschkop: But the present bill, as it sits on the books, is that law from 1924 and it was entitled “A Bill to Preserve the Integrity of the White Race” when it was initially issued. It was passed as a bill for racial integrity—to preserve racial integrity.
Now, we would advance the argument very strongly to the Court, they’re not concerned with racial integrity of the Negro race, only with the white race. In fact, in Virginia, it’s only a crime for white and Negro to intermarry, and the law is couched in such terms that they say, “White may only marry white” in Section 20–54 of our law, but it goes on from there to make it a crime only for whites and Negroes to intermarry. There’s no crime for a Malaysian to marry a Negro, and it’s a—it’s a valid marriage in Virginia, but it would be a void marriage for a Malaysian or any other race aside from Negro to marry a white person. A void marriage, but there’d be no criminal penalty against anyone but the white person. They were not concerned with the racial integrity, but the racial supremacy of the white race. In 1930, they finally, as I said before, went on to say any person with traceable Negro blood was a Negro.
Now, these laws, Your Honors, are ludicrous in their inception and equally ludicrous in their application. It’s not possible to look at just the Virginia laws alone. You have to look at what happened in the whole South, we feel, and the classifications in the South. It’s impossible to say. I won’t go into it again the exact classification of Negroes, but South Carolina, North Carolina make certain Indians white people. North Carolina, a Cherokee Indian from Robeson County is a white person, all of the Cherokee Indians and Negroes. In South Carolina, it’s the Catawba Indians, and these laws gave vent to other very hateful laws. In Mississippi, advocate of social equality under the mis—miscegenation body of law. It’s a criminal penalty. I think it carries one to five years.
If Your Honor please, there are several decisions handed down by states which again point out the racial feeling concerning these laws. The Missouri laws bottomed on State versus Jackson, which basically held that if the progeny of a mixed marriage married the progeny of a mixed marriage, there’d be no further progeny—a fundamentally ridiculous statement. Maybe it wasn’t for those men in that day and age, but it certainly is now, and Georgia has an equally ridiculous basis for their laws. In Scott versus Georgia, where they held that from their daily observances, they see that the offspring of such marriages are feminine.
And in this case, and I will refer to the appellant’s brief here at page 35, the Loving case comes to you based on the case of Naim versus Naim . Now, what were they talking about in Naim versus Naim? Again, they wanted to preserve the racial integrity of their citizens. They wanted “not to have a mongrel breed of citizens. We find there no requirement that the state shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of the citizenship.” These are racial, and equal protection thoroughly proscribes these.
In the case before you, the opinion of the lower court, Judge Bazile, and we have the footnote in page 37 of our brief, where he says, “Almighty God created the right races, white, black, yellow, malay, and red and he placed them on separate continents,” and I needn’t read the whole quote, but it’s a fundamentally ludicrous quote, and again, that’s what they’re talking about.
We feel the very basic wrong of these statutes is they rob the Negro race of their dignity, and fundamental in the concept of liberty in the Fourteenth Amendment is the dignity of the individual, because without that, there is no ordered liberty.
[…]
Thank you, Your Honors.
Chief Justice Warren: Mr. Cohen.
Mr. Cohen: Mr. Chief Justice, may it please the Court. If we were here merely to obtain a reversal on behalf of Richard Perry Loving and Mildred Jeter Loving, I think Mr. Hirschkop would have presented a cogent and complete argument based upon the Equal Protection Clause, which would leave no course but to find the statutes in question unconstitutional. However, while there is no doubt in our minds that these statutes are unconstitutional and have run afoul of the Equal Protection Clause of the Fourteenth Amendment, we urge with equal strength that the statutes also run afoul of the Due Process Clause of the Fourteenth Amendment.
Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty, as Justice Harlan has said in the Griswold case, citing Palko versus Connecticut, or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty, as Mr. Justice White has said in the concurring opinion in Griswold, or if we urge upon this Court to say, as it has said before in Meyer versus Nebraska and Skinner versus Oklahoma, that marriage is a fundamental right or liberty, and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment—
Justice Potter Stewart: Well, surely that’s—there’s some limit on that. I suppose you would agree that—that a state could forbid a marriage between a brother and a sister, wouldn’t you?
Mr. Cohen: We have conceded that the state may properly regulate marriages and may regulate divorces, and indeed they have done so and this Court has upheld certain regulations. I don’t know whether the issue of consanguinity or affinity has ever been here, but certainly the one that comes to my mind first would be the Reynolds case in the polygamy matter, and we have no trouble distinguishing those, and I—I don’t think the Court will, either. There was no race question involved.
Justice Stewart: No, but you’re—you’re not arguing about any race question. You’re arguing complete freedom to contract, aren’t you, under the Due Process Clause?
Mr. Cohen: Well, I—I have stated that the Due Process Clause has been subject to many articulations. And what I was going to go on to say was that all of these articulations can find some application in this particular case. If you ask me for the strength of the argument of the Fourteenth Amendment Due Process Clause as applied to this case, I urge most strongly that it be on the basis of the Fourteenth Amendment is an amendment to protect against racial discrimination. However, I do not think that the other arguments are completely invalid. I—I don’t even know if the Court ever has to reach them. But one can still argue that there is liberty and a right to marry, as this Court has said in Meyer and Skinner, and that in no way detracts from our argument that they cannot—the state cannot infringe upon the right of Richard and Mildred Loving to marry because of race. These are—these are just not acceptable grounds. We are talking about an arbitrary and capricious ground and we—we should have no trouble—
Justice Stewart: But some—some people might think, with reason, that it’s arbitrary and capricious to forbid first cousins to marry each other. State where I used to live does have such a law prohibiting first cousins for marrying each other. Now the—because a large body of opinion might think that’s arbitrary and capricious, does that mean that the state has no constitutional power to pass such a statute?
Mr. Cohen: I believe that we run into another step before we can reach that, Your Honor, and that is the burden of coming forth with the evidence. I think that a state can legislate and can restrict marriage and might even be able to go so far as to restrict marriage between first cousins as some states have. And I think that if that case were before the Court, they would not have the advantage that we have of a presumption being shifted and a burden being shifted to the state to show that they have a reasonable basis for proscribing into racial marriages. However, if we were here on a first cousins case, I think we would have the tougher row to hoe because we would have to come in and show that the proscription was arbitrary and capricious, it was not based upon some reasonable grounds, and that is a difficult thing for an appellant to do.
Thankfully, we are not here with that burden. The state is, and we submit that the state cannot overcome that burden. Not only do we submit that they cannot but for the purposes of this case, we certainly submit they have not. Nowhere in the state’s brief, nowhere in the legislative history of the Fourteenth Amendment, nowhere in the legislative history of Virginia’s antimiscegenation statutes, is there anything clearer than what Mr. Hirschkop has already elucidated, that these are racial statutes to perpetuate the badges and bonds of slavery. That is not a permissible state action.
Justice Harlan: Was there any efforts to repeal this law in Virginia?
Mr. Cohen: Your Honor, there have not been any efforts and I can tell you from a personal experience that candidates who run for office for the state legislature have told me that they would under no circumstances sacrifice their political lives by attempting to introduce such a bill. There is one candidate who has indicated that he would probably do so at some time in the future, but most of them have indicated that it would be political suicide in Virginia.
[…]
We are mostly concerned about a narrow ruling that would not go to the whole section of statutes. There are ten sections, Sections 20–50 through 20–60, and this is our chief concern, that the Court might not touch the racial composition certificate statute—
Justice Black: The what?
Mr. Cohen: The racial composition certificate. Section 20–50 says that anybody in Virginia who applies to the state registrar of vital statistics shall be given a certificate of racial composition. He goes and he says—he goes up to the clerk of the Court and says, “I’m white. I want a certificate of racial composition that I’m white,” or “I’m Negro. I want a certificate of racial composition that I’m Negro.”
And if the clerk looks at him and believes him, he has him fill out something and certifies that to the way it looks to him this person is white, or is Negro, and he sends down to Richmond and he gets his certificate of racial composition. To the best of my knowledge, this has not been used in recent years, and I don’t know what its extent was back around 1924, except that the legislative history shows that they brought in the state registrar of vital statistics and he testified that there was great confusion under the old law as to who is a member of which race and that they were having a little bit of difficulty determining who is a member of which race and who could be proscribed from marrying whom and called for this very strict statute, which now says that white persons may only marry white persons.
[…]
The enormity of the injustices involved under this statute is—merely serves as indicia of how the civil liabilities amount to a denial of due process to the individuals involved. As I started to say before, no matter how we articulate this, no matter which theory of the Due Process Clause or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, “Mr. Cohen, tell the Court I love my wife and it is just unfair that I can’t live with her in Virginia.”
[…]
Chief Justice Warren: Mr. McIlwaine.
Assistant Attorney General R. D. McIlwaine III: Mr. Chief Justice, may it please the Court. As an assistant attorney general in the commonwealth of Virginia, I appear as one of counsel for the appellee in support of the judgment of the Supreme Court of Appeals of our state affirming the constitutional validity of the two statutes which are involved in this case.
In view of what has been said before, it may not be inappropriate at this point to emphasize that there are only two statutes before this Court for consideration, Section 20–58 and 20–59 of the Virginia Code. These statutes in their combined effect, prohibit white people from marrying colored people and colored people from marrying white people under the same penal sanction and forbids citizens of Virginia of either race from leaving the state with the intent and purpose of evading this law. No other statutes are involved in this case. No attempt has been made by any Virginia officials to apply any other statute to the marital relationship before this Court.
The decision of the Supreme Court of Appeals of Virginia can be read from beginning to end without finding any other statute mentioned in it except 20–58 and 20–59, with the exception of that one provision which relates to the power of a Court to suspend the execution of sentence upon which ground the Supreme Court of Appeals of Virginia referred this case back to the lower court to have a new condition of suspension imposed. With that exception, only two provisions of the Virginia Code are mentioned.
Therefore, we take the position that these are the only statutes before the Court, and anything that may have to do with any other provision of the Virginia Code which imposes a prohibition on the white race only or has to do with certificates of racial composition, whatever they may be, are not properly before this Court. This is a statute which applies to a Virginia situation and forbids the intermarriage of the white and colored races.
Chief Justice Warren: It falls on the question of equal protection, maybe your—your section which allows anyone with one-sixteenth or less of Indian blood to—to intermarry with the—with whites would have some significance, would it not where—where that this one says, anyone who has a drop of colored blood in them cannot marry with the white.
Mr. McIlwaine: That would only be significant, Mr. Chief Justice, with respect to that provision, 20–54, which is not before the Court, which says that a white person shall not marry any other save a white person or a person having no other admixture of blood than white and American Indian. That is a special statute—that is, the 20–54 statute—against which I myself could find a number of constitutional objections, perhaps, in that it imposes a restriction upon one race alone, which it does not oppose on the other races and therefore, more stringently curtails the rights of one racial group. But so—
Chief Justice Warren: But you do put a restrictions on North American Indians if they have more than one-sixteenth of Indian blood in them, do you not?
Mr. McIlwaine: Yes, sir. But this is because in Virginia, we have only two races of people which are within the territorial boundaries of the state of Virginia in sufficient numbers to constitute a classification with which the legislature must deal. That is why I say the white and the colored prohibition here completely controls the racial picture with which Virginia is faced.
Chief Justice Warren: You have no Indians in Virginia?
Mr. McIlwaine: Well, we have Indians, Your Honor, but this is the point that we make with respect to them. Under the census figures of 1960, 79 and some odds hundreds percent of the Virginia population was made up of white people, 20 and some odd hundreds percent of the Virginia population was made up of colored people, whites and Negroes by definition of the United States Department of Commerce Bureau of the Census. Thus, 99.44 percent of the Virginia population falls into these two racial categories. All other racial classes in Virginia combined do not constitute as much as one-fourth of 1 percent of the Virginia population.
Therefore, we say that this problem of the intermarriage of whites and Orientals or Negroes and Orientals or any of these two classes with Polynesians or Indians or Asiatic Indians is not a problem with which Virginia has faced and one which it is not required to adopt its policy forbidding interracial marriage, too.
A statute of course does not have to apply with mathematical precision, but on the basis of the Virginia population, we respectfully submit that the statute before the Court in this case does apply almost with mathematical precision since it covers all the dangers which Virginia has a right to apprehend from interracial marriage in that it prohibits the intermarriage of those two groups which constitute more than 99 percent of the Virginia population.
Now, so far as the particular appellants in this case are concerned, there is no question of constitutional vagueness or doubtful definition. It is a matter of record, agreed to by all counsel during the course of this litigation and in the brief that one of the appellants here is a white person within the definition of the Virginia law, the other appellant is a colored person within the definition of Virginia law. Thus, the Court is simply faced with the proposition of whether or not a state may validly forbid the interracial marriage of two groups, the white and the colored, in the context of the present statute.
Justice Harlan: Does Virginia have a statute on its books with respect to interracially married couple, say in New York, never had any contact with Virginia (Inaudible)?
Mr. McIlwaine: No, sir. It does not. We have the question of whether or not that marriage would be recognized as valid in Virginia, even though it was contracted by parties who are not residents of the state of Virginia under the conflict of laws principle that a marriage valid where celebrated is valid everywhere.
This would be a serious question and under Virginia law, it is highly questionable that such a marriage would be recognized in Virginia, especially since Virginia has a very strong policy against interracial marriage, and the implementing statutes declare that marriages between white and colored people shall be absolutely void without decree of divorce or other legal process, the implementing statute which forbids Virginia citizens to leave the state for the purpose of evading the law and returning, the exception to the conflict of laws principle I’ve stated that a marriage valid was celebrated would be valid everywhere except where contrary to the long—to the strong local public policy. The Virginia statute here involved does express a strong local public policy against the intermarriage of white and colored people.
Now, with respect to any other interracial marriage, this—the policy of the Virginia statutes here involved does not express any sentiment at all. And we do not have any decision of the Virginia Supreme Court, Mr. Justice Harlan, which would shed light on that proposition insofar as other races are concerned.
[…]
The first contention is that the Fourteenth Amendment viewed in the light of its legislative history, has no effect whatever upon the power of states to enact antimiscegenation laws—specifically, antimiscegenation laws forbidding the intermarriage of white and colored persons—and therefore, as a matter of law, this Court under the Fourteenth Amendment is not authorized to infringe the power of the state, that the Fourteenth Amendment does not, read in the light of its history, touch, much less diminish, the power of a states in this regard.
The second contention, an alternative contention is, that if the Fourteenth Amendment be deemed to apply to state antimiscegenation statutes, then this statute serves a legitimate, legislative objective of preventing the sociological and psychological evils which attend interracial marriages, and is a—an expression, a rational expression of a policy which Virginia has a right to adopt. So far as the legislative history of the amendment is concerned, we do not understand that this Court has ever avowed in principle the proposition that it is necessary in construing the Fourteenth Amendment to give effect to the intention of the Framers.
With respect to the instant situation, you are not presented with any question involving a dubious application of certain principles to a situation which was unforeseen or unknown to those who framed the principles. The precise question before this Court today, the validity under the Fourteenth Amendment of a statute forbidding the marriage of whites and Negroes was precisely before the Congress of the United States 100 years ago when it adopted the amendment. The situation is perfectly clear that those who considered the amendment against a charge of infringing state power to forbid white and colored marriages, specifically excluding that power from the scope of the Fourteenth Amendment.
Chief Justice Warren: Do you get that from the debates on the Fourteenth Amendment?
Mr. McIlwaine:Yes, Your Honor. We get it from the—specifically from the debates—
Chief Justice Warren: Where did you—where did you quote that in your brief?
Mr. McIlwaine: We get it specifically, Your Honor, from the debates leading to the Fourteenth Amendment, the debates on the Freedmen’s Bureau Bill and the Civil Rights Act of 1866—
Chief Justice Warren: That is a little different though, isn’t it?
Mr. McIlwaine: Only to this extent, Your Honor. The Fourteenth Amendment has been construed by members of this Court a number of times in its historical setting. The Court has said on a number of instances that the specific debates on the Freedmen’s Bureau Bill and the Civil Rights Act of 1866, which act ultimately became the first section of the Fourteenth Amendment, are the most material relating to the Fourteenth Amendment.
Now in this situation, by the time the Freedmen’s Bureau Bill and the Civil Rights Act of 1866 had been debated and passed, the issue of whether or not the Fourteenth—the Civil Rights Act of 1866—would infringe the power of the states to pass antimiscegenation statutes was so completely settled, that when the Fourteenth Amendment resolution was brought on, the question was no longer considered to be an open one.
[…]
We would sum up the argument which we have made on behalf of the legislative history of the Fourteenth Amendment by referring to a statement of Mr. Justice Black in his dissenting opinion in the recent case of South Carolina against Katzenbach, two sentences, which read as follows, “I see no reason to read into the Constitution meanings it did not have when it was adopted and which had not been put into it since. The proceedings of the original constitutional convention show beyond all doubt that power to veto or negative state laws was denied in Congress.”
We respectfully assert that there was no propriety in this Court’s reading into the Constitution meanings it did not have when it was adopted or expanding the reach of the Constitution to embrace a subject which was specifically excluded by the Framers.
Justice Stewart: Mr. McIlwaine, wouldn’t it be pretty clear in the absence, in the absence of the specific legislative history which you refer us. If it just were no history, wouldn’t it be pretty clear that the very purpose of the Equal Protection Clause of the Fourteenth Amendment was to provide that every state had to treat Negro citizens the same as white citizens so far as their laws go? Isn’t that what the Equal Protection Clause means?
Mr. McIlwaine: Yes, sir. I think it does. I think that’s reinforced by the legislative history, and I don’t know exactly how to consider the question aside from the legislative history, but that is clearly indicated in the legislative history itself.
Justice Stewart: That is—that was the very purpose of the Equal Protection Clause, coming as it did after the—in the wake of the Civil War.
Mr. McIlwaine: That is correct, but it is clear that the Framers understood that in their intention, a law which equally forbade the members of one race to marry members of another race with same penal sanction on both did treat the individuals of both race equally.
Turning then to our alternative argument, which we say can only be reached if the legislative history of the Fourteenth Amendment is ignored and the Fourteenth Amendment is deemed to reach the state power to enact laws relating to the marriage relationship, we say that the prevention of interracial marriage is a legitimate exercise of the state power. That there is a rational classification setting, so far as the Virginia population is concerned, for preventing marriages between white and colored people who make up the—almost the entirety of the state’s population, and that this is supported by the prevailing climate of scientific opinion.
We take apart the position that while there is evidence on both sides of this question, when such a situation exists it is for the legislature to draw its conclusions and that these conclusions are entitled to wait and unless it can be clearly said that there is no debatable question that a statute of this type cannot be declared unconstitutional.
We start with the proposition, on this connection, that it is the family which constitutes the structural element of society and that marriage is the legal basis upon which families are formed. Consequently, this Court has held in numerous decisions over the years that society is structured on the institution of marriage that it has more to do with a welfare and civilizations of the people that any other institutions and that out of the fruits of marriage spring relationships and responsibilities with which the state is necessarily required to deal.
Text writers and judicial writers agree that the state has a natural, direct, and vital interest in maximizing the number of successful marriages which lead to stable homes and families and in minimizing those which do not. It is clear from the most recent available evidence on the psycho-sociological aspect of this question that intermarried families are subjected to much greater pressures and problems than are those of the intramarried and that the state’s prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.
Chief Justice Warren: There are people who have the same—same feeling about interreligious marriages, but because that may be true, would you think that the state could prohibit people from having interreligious marriages?
Mr. McIlwaine: I think that the evidence in support of the prohibition of interracial marriages is stronger than that for the prohibition of interreligious marriages. But I think that the—
Chief Justice Warren: How can you—how can you say that?
Mr. McIlwaine: Well, we say that principally—
Chief Justice Warren: Because—because you believe that?
Mr. McIlwaine: No, sir. We say it principally on the basis of the authority which we have cited in our brief, particularly, this one volume, which we have cited from copiously in our brief, which is—
Chief Justice Warren: Who wrote that?
Mr. McIlwaine: This is a book by Dr. Albert I. Gordon, Your Honor, which is characterized as the definitive book on intermarriage, and has the most careful, up to date, methodologically sound study of intermarriage in North America that exists. It is entitled Intermarriage: Interfaith, Interracial, Interethnic.
Now, our proposition on the psycho-sociological aspects of this question is bottomed almost exclusively on this particular volume. This is the work of a Jewish rabbi who is also, has a MA in sociology and a PhD in social anthropology. It is a statistical study of over 5,000 marriages which was aided by the computers of the Harvard Laboratory of Social Relations and the MIT Computation Center. This book has been given statistical form and basis to the proposition that from the psycho-sociological point of view, interracial marriages are detrimental to the individual, to the family, and to society.
I do not say that the author of this book would advocate the prohibition of such marriages by law, but we do say that he personally and clearly expresses his view as a social scientist that interracial marriages are definitely undesirable, that they hold no promise for a bright and happy future for mankind. And that the interracial marriages bequeath to the progeny of those marriages more psychological problems than parents have a right to bequeath to them. As I say, this book has been widely accepted and it was published in 1964 as being the definitive book on intermarriage in North America that exists.
Justice Black: Is he an orthodox—an orthodox rabbi?
Mr. McIlwaine: I have not been able to ascertain that, Your Honor, from any of the material that I’ve gotten. He’s a rabbi in Temple Emanuel in Newton Center, Massachusetts. I do not understand that the—and certainly, the religious view of the Orthodox or the Conservative or the Reformed Jewish phase disagree necessarily on this particular proposition, but I cannot say whether Dr. Gordon is an Orthodox or a Reformed Jewish rabbi.
I am more interested of course in his credentials as a scientist for this purpose, as a doctor of social anthropology and as a sociologist than, of course, I am in his religious affiliation. But it is clear, unmistakably clear, and we have set it forth as I say, in our brief and in the appendix to our brief, the results of the study which has been made and which is embodied in this volume.
As I say, it was published in 1964, and some of the statements which are made in it based upon the demonstrably—statistically demonstrably greater ratio of a marry—of divorce, annulment in intermarried couples than intramarried couples. Dr. Gordon has stated it as his opinion that “it is my conviction that intermarriage is definitely inadvisable, that they are wrong because they are most frequently, if not solely, entered into under the present-day circumstances by people who have a rebellious attitude towards—towards society, self-hatred, neurotic tendencies, immaturity, and other detrimental psychological factors.”
Justice Stewart: You don’t know what is cause and what is effect. Assuming the validity of these statics, I suppose one, it could be argued that one reason that marriages of this kind are sometimes unsuccessful is the existence of the kind of laws that are in issue here and the—and the attitudes that those laws reflect, isn’t that correct?
Mr. McIlwaine: I think it is more the latter, the attitudes that perhaps the laws reflect. I don’t find anywhere in this that the existence of the law does it. It is the attitude which society has toward interracial marriages, which in detailing his opposition, says, “Causes a child to have almost insuperable difficulties in identification and that the problems which a child of an interracial marriage faces are those which no child can come through without damage to himself.”
Now if the state has an interest in marriage, if it has an interest in maximizing the number of stable marriages and in protecting the progeny of interracial marriages from these problems, then clearly, there is scientific evidence available that this is so. It is not infrequent that the children of intermarried parents are referred to not merely as the children of intermarried parents but as the victims of intermarried parents and as the martyrs of intermarried parents. These are the direct quotes from the volume.
Chief Justice Warren: Does Mr. Gordon take the position that there is a basic difference in intelligence in the races?
Mr. McIlwaine: No, sir. I don’t understand that he does. All that he purports to say one way or the other about the biological differences—this is not his field, in other words, genetics and biology. He reviews the materials on this and concludes for the purpose of his study that biologically and genetically, there is probably no justification for the prevention of intermarriage. Then he takes it further into the psycho-sociological field and its effect upon children and upon the intermarried couples and this is what his views are based upon.
[…]
Justice Black: Is there any possible basis, or is—is not the basic premise on which [the statutes] are written that the white people are superior to the colored people and that they should not, therefore, be permitted to marry because it might pollute the white race.
Mr. McIlwaine: Your Honor, I think that there is. In other words, I think there is its justification for saying that that is not the—
Justice Black: Well, do you—do you would think there’s a stronger justification that that is it?
Mr. McIlwaine: You mean—I think historically that the—that the legislatures that which enacted them had that thought in mind?
Justice Black: That’s right.
Mr. McIlwaine: Yes, I think that—that’s clear.
Justice Black: Basic thing in which they rested.
Mr. McIlwaine: That—that’s which the original enactments were rested. I think that’s perfectly clear. But, Your Honor, I say that you are facing a problem in 1967—
Justice Black: Well, whether it’s 1967 or 1868, makes no difference to me in discussion of the equal protection of the laws. It is that—as I would see it, is it not true that that’s the basic reason it was done?
Mr. McIlwaine: I think—
Justice Black: And that a man who belongs to this race, that is forbidden to marry—marry into the other race, is bound to feel that he is not given equal protection of the laws.
Mr. McIlwaine: Well, the prohibition, Your Honor, works both ways.
Justice Black: Works what?
Mr. McIlwaine: The prohibition works both ways. You say a man that is prohibited from marrying into another race feels inferior. The prohibition also prohibits the white person to marry the colored person.
Justice Black: (Voice Overlap) prohibition is the same but it’s the common sense and pragmatic of it not as the result of the old slavery days.
Mr. McIlwaine: The motivation—
Justice Black: And the old feeling that the white man was superior to the colored man, which was exactly the Fourteenth Amendment was adopted to prevent.
Mr. McIlwaine: Your Honor, I think it is clear that the motivation of the earlier statutes, if you—by motivation you undertake to analyze the feelings of the individual members of the legislature that were responsible for the adoption of the statutes, I think that is correct, but I do not see how that can affect the constitutional problem which is presented to this Court where an enactment of the General Assembly of Virginia is on trial in which we submit was beyond the scope of the Fourteenth Amendment as the first proposition and as a second proposition, even if it wasn’t beyond the scope of the Fourteenth Amendment and is subjected to due process and equal protection test, it is a justifiable regulation in view of today’s evidence on the point.
Chief Justice Warren: Well, I want to know, Mr. McIlwaine, if it does work equally as against both. Now, as counsel pointed out, it—it prevents—it keeps the white race, as you—you would say, pure but it doesn’t keep the other races that way? You don’t—you don’t have any prohibition against the Negro marrying a Malay or a Mongolian.
Mr. McIlwaine: We don’t have any prohibition against anyone in Virginia, so far as these statutes are concerned marrying a Mongol or Malay.
Chief Justice Warren: Well, I know but if it’s to—if it is to preserve the purity of the races, why aren’t they as much entitled to have purity of their races protected as a white race?
Mr. McIlwaine: They are, Your Honor, and if—
Chief Justice Warren: But how can you—how can you—what prohibits it under Virginia law? What prohibits the—a Negro from marrying an Indian? What prevents a Negro from marrying a Japanese or a Malay?
Mr. McIlwaine: There’s nothing—there’s nothing that prohibits the whites, either.
Chief Justice Warren: I beg your pardon.
Mr. McIlwaine: There’s nothing that prohibits the whites, either. As I’ve undertaken to say, Your Honor, that Virginia statute deals with Virginia’s situation. The western statutes, where the aspiration or classification of a state maybe one-third Caucasian, one-third Negro, and one-third Oriental, those statutes deal with that problem. But Virginia problem is not presented—it does not present any question of any social evil with which the legislature is required to deal resulting from interracial marriage between Negroes and Malays or whites and Malays because there is no significant population distribution to that extent in Virginia.
Chief Justice Warren: Well, I—I understood from the brief of Mr. Marutani that there are 1,750 Japanese in Virginia according to the last census.
Mr. McIlwaine: I do not say that this is not so.
Chief Justice Warren: Well, do we—do we deny equal protection to them?
Mr. McIlwaine: No, sir, because that—
Chief Justice Warren: That’s all that I’m concerned with.
Mr. McIlwaine: That sort of racial composition, Your Honor, which constitutes less than one-fourth of 1 percent, does not present the probability of sufficient interracial marriages and sufficient difficulty for the legislature to be required to deal with it. The legislature in this statute has covered—
Chief Justice Warren: You mean the principle because there are only a few people of one race in Virginia that Virginia can say they have no rights?
Mr. McIlwaine: It isn’t a matter of saying that they have no rights, Your Honor. It’s a matter of saying that they—that they do not present a problem.
[…]
