Conter, C. Michael

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Recent Decisions: Constitutional Law: Miscegenation Laws

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Marquette Law ReviewVolume 48Issue 4 Spring 1965 Article 12Recent Decisions: Constitutional Law:Miscegenation LawsC. Michael ConterFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationC. Michael Conter, Recent Decisions: Constitutional Law: Miscegenation Laws, 48 Marq. L. Rev. (1965).Available at: http://scholarship.law.marquette.edu/mulr/vol48/iss4/12MARQUETTE LAW REVIEWConstitutional Law: Miscegenation Laws: The defendants wereconvicted under section 798.05 of the Florida statutes, which prohibitednighttime cohabitation of the same room by a Negro and a white ofdifferent sexes.On appeal, their conviction was affirmed by the Florida SupremeCourt in McLaughlin v. Florida' because it felt bound by the decisionof the United States Supreme Court in Pace v. Alabama2 and thedecisions of many state courts upholding similar statutes.3 Both Paceand McLaughlin involve nearly corresponding statutory schemes. TheAlabama statutes applicable in the Pace decision not only contained astatute which prohibited fornication by persons of different races, 4but also a general non-racial fornication statute.' Similarly, the Floridastatutes, aside from prohibiting interracial cohabitation, held adulteryand fornication by people of the same race a crime. 6Due to the established precedent and the similarities of the twosituations, the Florida court adopted the Pace reasoning that the statute,although it contained racial classifications, was not discriminatory be-cause both the Negro and the white received the same punishment.7Secondly, the court viewed the offense committed by persons of dif-ferent racial descent as an entirely distinct offense from one committedby persons of the same race, and one to which the general sections ofthe statutes are applicable.8 Therefore, the Florida court found thatboth the statutes are necessary in order to enforce the legislative pur-poses involved.An entirely opposite reasoning was adopted by the United StatesSupreme Court in its consideration of the McLaughlin caseY Thereasoning of Pace v. Alabama was overruled and a more realistic testfor determining the validity of a statute containing racial classificationswas substituted. 10 This test, as applied to the cohabitation law, involvesa determination of whether the classifications are necessary and notmerely related to the accomplishment of a permissible state policy."If the classifications are not necessary, then the statute obviously servesno other purpose than to draw attention to the racial classification andis therefore repugnant to the equal protection clause of the fourteenthamendment. 121 153 So. 2d I (Fla. 1963).2 106 U.S. 207 (1883).3 McLaughlin v. Florida, supra note 1, at 3.1 ALA. CODE tit. 14, §360 (1958).5 ALA. CODE tit. 14, §16 (1958).6 FLA. STAT. ANN. §798.01 (1941) deals with adultery, §798.02 with lewd andlascivious behavior, and §798.03 with fornication.7 McLaughlin v. Florida, supra note 1, at 2.s Ibid.' McLaughlin v. Florida, 85 Sup. Ct. 283 (1964).10 Id. at 287.11 Id. at 290-91.12 Id. at 288.[Vol. 48RECENT DECISIONSBefore this test could be properly applied to the McLaughlin case,the Court had to determine the legislative purpose which the cohabita-tion law was intended to enforce. 13 It simply rejected the argument thatthe cohabitation statute was intended to enforce its law forbidding inter-racial marriages'14 merely because it serves the same purpose and isancillary to that law.'5Rather than advancing that legislative purpose, the Court decidedthat the purpose of section 798.05 is the same as that of the rest ofchapter 798: namely, the prevention of breaches of the basic conceptsof sexual decency. Further, it reasoned that a situation involving twodifferent races is no different from one in which the persons are of thesame race, with the general sections of the chapter sufficient to carryout the legislative purposes in both instances.' 6 Therefore, the cohabita-tion statutes' racial classifications are unnecessary and violative of thefourteenth amendment.The contention advanced by the appellant that Florida's anti-misceg-enation law barred the defense of common law marriage was also re-jected.17 While this contention might have been disposed of on pro-cedural grounds in this case, it did point out the basic issue in the case,the constitutionality of Florida's established legislative .policy of for-bidding interracial marriages, which is found in both its constitutionand statutory law. By refusing to consider this contention and by findingthat the legislative purpose of the discriminatory cohabitation law wasthe same as that of the other sections of chapter 798, the Court avoidedthe fundamental question at issue, other than to cast some doubt on theconstitutionality of the antimiscegenation law. The Court, by limitingits decision to the question of the constitutionality of the racial clas-sifications, followed its established policy of resolving cases by the de-termination of the narrowest constitutional issue necessary to adjudi-cate the controversy.While the decision quite properly ensures that everyone in Floridawill be subject to a non-discriminatory fornication law, Florida's legis-lative purpose of forbidding interracial marriages, which was reflectedin the invalid cohabitation law, is not questioned. The individual's rightto marry remains limited to the right to marry only someone of thesame race, with the legislative policy now enforced by the antimiscegena-tion law and the general sections of chapter 798.18This question whether a state can properly have a policy of for-bidding interracial marriages has never been directly considered by the13Id. at 289.14FLA. STAT. ANN. §741.11 (1941) ; also FLA. CONST. art. 16, §24.15 McLaughlin v. Florida, supra note 9, at 290.16 Id. at 289.'1 Id. at 286; see note 6.Is Id. at 291.MARQUETTE LAW REVIEWUnited States Supreme Court. In fact, it seems to have carefully avoidedit.Certiorari was denied to a case in 1954, involving the conviction ofa white and a Negro under an Alabama statute punishing intermarriage,adultery, and fornication between white and Negro.19 A year later, itrefused to consider a case dealing directly with the validity of Virginia'santimiscegenation law. That case, Naim v. Naim,20 involved a suit toannul a marriage between a white person and one of Chinese descent.Their marriage had been found void under a Virginia statute forbiddinginterracial marriages. Racial classification, the Virginia court said, wasnecessary to carry out the prevention of interracial marriages, and solong as this is a proper governmental objective, the classification wasalso proper.2 1 In order to obtain more evidence on relevant factors inthe case, the United States Supreme Court sent the case back to Vir-ginia. When the Virginia Supreme Court refused to send the case backto the circuit court on the grounds that it lacked the power to do so,the United States Supreme Court refused to consider the case becauseit was devoid of any federal question. As mentioned earlier, neither theMcLaughlin nor the Pace cases deal directly with the basic policy ques-tion, but only with the problems encountered in enforcing it.In the McLaughlin case, the Court said that a law using racial clas-sifications, even to enforce a valid state interest, will be upheld onlyif these classifications are necessary for the accomplishment of thatpolicy. Obviously, this was an application of the reasonable legislativepurpose test which has been used under both the due process and equalprotection clauses of the fourteenth amendment. 2 Here it was appliedunder the equal protection clause, since the case dealt with racial clas-sifications.The validity of the antimiscegenation law itself could also be ques-tioned under the fourteenth amendment by requiring the showing of areasonable legislative purpose for its enactment.2 3 There is seriousdoubt that any valid reason could be shown for this type of statute.In fact, the three basic arguments which are often advanced to supportthese statutes; namely,* that the children of these marriages would beinferior, that social tensions and domestic problems are lessened, and19Jackson v. Stat, 37 Ala. App. 519, cert. denied, 348 U.S. 888 (1954).20 197 Va. 80, 87 S.E. 2d 749, vacated and remanded, 350 U.S. 891, motion to recalldenied, 350 U.S. 985 (1955).21 Naim v. Naim, supra note 20, 87 S.E. 2d at 755.22Applebaum, Miscegenation Statutes: A Constitutional and Social Problem,53 GEO. L. J. 49, 70 (1964), in 14 L. REv. DIGEST 1, 14 (1964).23 Applebaum, supra note 22, at 68- 70; 14 L. REV. DIGEST at 13 - 14; Cummins& Kane, Miscegenation, The Constitution and Science, 38 Dicta 24, 32 (1961) ;Riley, Miscegenation Statutes-A Re-Evaluation of Their Constitutionality inLight of Changing Social and Political Conditions, 32 So. CALIF. L. REV. 28,44-48 (1958) ; Note and Comment, 5 Sw. L. J. 452, 459-61 (1951) ; 62 HARV.L. REv. 307, 308 (1948).[Vol. 48RECENT DECISIONSthat psychological hardships to the offspring are avoided, have beendiscredited. 24 Therefore the application of a reasonable legislative pur-pose test would most likely lead to a finding of unconstitutionalityunder the equal protection clause of the fourteenth amendment, espe-cially since the usual presumption of a valid legislative purpose is notapplied to cases dealing with racial classifications. 21However, a better approach might be to recognize that the right ofthe individual to marry is a fundamental right, protected under theclear and present danger test.26 Surely it is a right which can be con-sidered as important to the individual as is his right to own propertyor his freedom of speech. The United States Supreme Court has ac-knowledged that marriage and procreation are fundamental to the veryexistence and survival of the race.2 7This test has been applied to the right of the individual to own prop-erty, mentioned in the first part of the fourteenth amendment.2 8 An-other right mentioned in this part of the amendment is the right toliberty, to which the clear and present danger test has also been applied.20The right to marry has been recognized as being embodied in the con-cept of liberty under the fourteenth amendment.-3In Shelly v. Kraemer,1 rights under the first part of the fourteenthamendment were recognized as personal rights guaranteed to the indi-vidual. The freedoms of speech and press are also recognized to be ofthis character. 32 Where legislation collides with the principles embodiedin both the first and fourteenth amendments, it is proper to apply theclear and present danger test.33While admittedly this approach has not been applied in any of theappeals to the United States Supreme Court to consider the questionof the validity of a legislative policy forbidding interracial marriages,Mr. Justice Harlan's concurring opinion in the McLaughlin case, inwhich he said: "The necessity test which developed to protect free24 Perez v. Sharp (also known as Perez v. Lippold), 32 Cal. 2d 711, 198 P. 2d17, 23-26 (1948); Applebaum, supra note 22, at 71-78; 14 L. REv. DIGEST at15-19; Riley, supra note 23, at 32-40; Weinberger, A Reappraisal of the Con-stitutionality of Miscegenation Statutes, 42 CORNELL L. Q. 208, 215-22 (1957);58 YALE L. J. 472 (1949).25 McLaughlin v. Florida, supra note 9, at 288; Applebaum, supra note 22, at 83;14 L. REv. DIGEST at 22; Cummins & Kane, supra note 23, at 43; Anti-Miscege-nation Laws in The United States, 1 DuxE L. J. 39.26 Applebaum, supra note 22, at 83; 14 L. REv. DIGEST at 22; Riley, supra note23, at 40-44; Note and Comment, 5 Sw. L. J. 452, 455-457 (1951); Note, 1STAN. L. REv. 289, 293 (1949) ; 33 MINN. L. REv. 530, 532 (1949).27 Skinner v. Oklahoma, 316 U.S. 535, 541 (1941).25 Oyama v. California, 332 U.S. 633, 647 (1947).29 Korematsu v. United States, 323 U.S. 214, 216-18 (1944).30 Meyer v. Nebraska, 262 U.S. 390, 399 (1922).31344 U.S. 1, 22 (1947).32 Schneider v. State, 308 U.S. 147, 161 (1939).s Perez v. Sharp, supra note 24, 198 P. 2d at 20; see also separate opinion ofJustice Edmonds, id. at 34, referring to the opinion of Mr. Justice Jacksonin West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1942).19651MARQUETTE LAW REVIEWspeech against state infringement should be equally applicable in a caseinvolving state racial discrimination-prohibition of which lies at thevery heart of the fourteenth amendment,"3 seems to indicate the Courtmight well take a favorable reaction to this approach.C. MICHAEL CONTER34 McLaughlin v. Florida, supra note 9, at 291.[Vol. 48

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Recent Decisions: Constitutional Law: Miscegenation Laws

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