ANDREA D. PEREZ et al., Petitioners, v. W. G. SHARP, as
County Clerk, etc., Respondent
L. A. No. 20305
Supreme Court of California
32 Cal. 2d 711; 198 P.2d 17; 1948 Cal. LEXIS 261
October 1, 1948
SUBSEQUENT HISTORY:
Respondent's Petition for a Rehearing was Denied October 28, 1948. Shenk,
J., Schauer, J., and Spence, J., Voted for a Rehearing.
PRIOR HISTORY: PROCEEDING in mandamus to compel county clerk to issue a
certificate of registry and a license to marry.
DISPOSITION:
Writ granted.
HEADNOTES: CALIFORNIA OFFICIAL REPORTS HEADNOTES
(1) Constitutional Law--Fundamental Rights--Religious Freedom. --In view
of the guarantee of religious freedom in U. S. Const., Amend. I, state
legislatures are no more competent than Congress to enact a law prohibiting the
free exercise of religion, though they may regulate conduct for the protection
of society, and insofar as their regulations are directed towards a proper end
and are not unreasonably discriminatory, they may indirectly affect religious
activity without infringing the constitutional guarantee. (Per Traynor, J.,
Gibson, C. J., Carter, J.)
(2) Marriage--Nature. --Marriage is something more than a civil contract
subject to regulation by the state; it is a fundamental right of free men.
There can be no prohibition of marriage except for an important social
objective and by reasonable means.
(3) Id.--Legislative Control. --Legislation infringing on the right to
marry must be based on more than prejudice and must be free from oppressive
discrimination to comply with the constitutional requirements of due process and
equal protection of the laws. (Per Traynor, J., Gibson, C. J., Carter, J.)
(4) Id.--Validity--Marriages Between Different Races. --A state law
prohibiting members of one race from marrying members of another race is invalid
unless it is designed to meet a clear and present peril arising out of an
emergency.
(5) Id.--Nature. --The right to marry is the right of individuals, not of
racial groups. (Per Traynor, J., Gibson, C. J., Carter, J.)
(6) Id.--Legislative Control. --While disease that might become a peril to
a prospective spouse or to the offspring of the marriage could be made a
disqualification for marriage, legislation to that effect must be based on tests
of the individual, not on arbitrary classifications of groups or races, and must
be administered without discrimination on the grounds of race. (Per Traynor, J.,
Gibson, C. J., Carter, J.)
(7) Id.--Validity--Marriages Between Different Races. --Civ. Code, §§ 60,
69, prohibiting marriages between white persons and members of certain racial
groups, are invalid because they discriminate against persons on the basis of
race or color and are not designed to meet a clear and present danger.
(8a) (8b) Id.--Validity--Marriages Between Different Races. --Civ.
Code, §§ 60, 69, prohibiting marriages between white persons and members of
certain racial groups, are invalid not only as violating the equal protection
clause of the federal Constitution and as arbitrarily and unreasonably
discriminating against certain racial groups, but also because they are too
vague and uncertain to constitute a valid regulation. (Per Traynor, J., Gibson,
C. J., Carter, J.)
(9) Statutes--Validity--Certainty. --The requirement that a law be
definite and its meaning ascertainable by those whose rights and duties are
governed thereby applies not only to penal statutes, but also to laws governing
fundamental rights and liberties. (Per Traynor, J., Gibson, C. J., Carter, J.)
COUNSEL:
Daniel G. Marshall for Petitioners.
Harold W. Kennedy, County Counsel (Los Angeles), and Charles C. Stanley, Jr.,
Deputy County Counsel, for Respondent.
JUDGES:
In Bank. Traynor, J. Gibson, C. J., and Carter, J., concurred. Carter, J.,
concurring. Edmonds, J. Shenk, J., dissents. Schauer, J., and Spence, J.,
concurred.
OPINIONBY:
TRAYNOR
OPINION:
[*712] [**17] In this proceeding in mandamus, petitioners seek to compel
the County Clerk of Los Angeles County to issue them a certificate of registry (
Civ. Code, § 69a) and a [**18] license to marry. (Civ. Code, § 69.) In the
application for a license, petitioner Andrea Perez states that she is a white
person and petitioner Sylvester Davis that he is a Negro. Respondent refuses to
issue the certificate and license, invoking Civil Code, section 69, which
provides: ". . . no license may be issued authorizing the marriage of a white
person with a Negro, mulatto, [***2] Mongolian or member of the Malay race."
Civil Code, section 69, implements Civil Code, section 60, which provides:
"All marriages of white persons with negroes, Mongolians, members of the Malay
race, or mulattoes are illegal and void." This section originally appeared in
the Civil Code in 1872, but at that time it prohibited marriages only between
white persons and Negroes or mulattoes. It [*713] succeeded a statute
prohibiting such marriages and authorizing the imposition of certain criminal
penalties upon persons contracting or solemnizing them. (Stats. 1850, ch. 140,
p. 424.) Since 1872, Civil Code, section 60, has been twice amended, first to
prohibit marriages between white persons and Mongolians (Stats. 1901, p. 335)
and subsequently to prohibit marriages between white persons and members of the
Malay race. (Stats. 1933, p. 561.)
Petitioners contend that the statutes in question are unconstitutional on the
grounds that they prohibit the free exercise of their religion and deny to them
the right to participate fully in the sacraments of that religion. They are
members of the Roman Catholic Church. They maintain that since the church has
no rule forbidding marriages [***3] between Negroes and Caucasians, they are
entitled to receive the sacrament of matrimony.
(1) The provision of the First Amendment to the Constitution of the United
States that Congress shall make no law "respecting an establishment of religion,
or prohibiting the free exercise thereof" is encompassed in the concept of
liberty in the Fourteenth Amendment. State legislatures are therefore no more
competent than Congress to enact such a law. (Cantwell v. Connecticut, 310 U.S.
296, 303 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].) They may, however,
regulate conduct for the protection of society, and insofar as their regulations
are directed towards a proper end and are not unreasonably discriminatory, they
may indirectly affect religious activity without infringing the constitutional
guarantee. Although freedom of conscience and the freedom to believe are
absolute, the freedom to act is not. (Cantwell v. Connecticut, supra, at pp.
303-304.)
The regulation of marriage is considered a proper function of the state. It
is well settled that a legislature may declare monogamy to be the "law of social
life under its dominion," even though such a law might inhibit the [***4] free
exercise of certain religious practices. (Reynolds v. United States, 98 U.S.
145, 166 [25 L.Ed. 244]; Davis v. Beason, 133 U.S. 333, 343 [10 S.Ct. 299, 33
L.Ed. 637].) If the miscegenation law under attack in the present proceeding is
directed at a social evil and employs a reasonable means to prevent that evil,
it is valid regardless of its incidental effect upon the conduct of particular
religious groups. If, on the other hand, the law is discriminatory and
irrational, [*714] it unconstitutionally restricts not only religious liberty
but the liberty to marry as well.
The due process clause of the Fourteenth Amendment protects an area of
personal liberty not yet wholly delimited. "While this Court has not attempted
to define with exactness the liberty thus guaranteed, the term has received much
consideration and some of the included things have been definitely stated.
Without doubt, it denotes not merely freedom from bodily restraint, but also the
right of the individual to contract, to engage in any of the common occupations
of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the [***5] dictates of his own
conscience, and, generally, to enjoy those privileges long recognized at common
law as essential to the orderly pursuit of happiness by free men." (Italics
added; Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 67 L.Ed. 1042].) (2)
Marriage is thus something more than a civil contract subject to regulation by
the [**19] state; it is a fundamental right of free men. There can be no
prohibition of marriage except for an important social objective and by
reasonable means.
No law within the broad areas of state interest may be unreasonably
discriminatory or arbitrary. The state's interest in public education, for
example, does not empower the Legislature to compel school children to receive
instruction from public teachers only, for it would thereby take away the right
of parents to "direct the upbringing and education of children under their
control." (Pierce v. Society of Sisters, 268 U.S. 510, 534-535 [45 S.Ct. 571, 69
L.Ed. 1070, 39 A.L.R. 468].) Again, the state's vital concern in the prevention
of crime and the mental health of its citizens does not empower the Legislature
to deprive "individuals of a right which is basic to the perpetuation [***6] of
a race -- the right to have offspring" by authorizing the sterilization of
criminals upon an arbitrary basis of classification and without a fair hearing.
(Skinner v. Oklahoma, 316 U.S. 535, 536 [62 S.Ct. 1110, 86 L.Ed. 1655].) n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 See also the concurring opinion of Jackson, J., indicating that
sterilization of criminals as a biological experiment might be invalid: "There
are limits to the extent to which a legislatively represented majority may
conduct biological experiments at the expense of the dignity and personality and
natural powers of a minority -- even those who have been guilty of what the
majority define as crimes. But this Act falls down before reaching this
problem, which I mention only to avoid the implication that such a question may
not exist because not discussed. On it I would also reserve judgment." (316
U.S. 546-547; see 51 Yale L.J. 1380.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*715] The right to marry is as fundamental as the right to send one's
child to a particular school or the right to have offspring. [***7] Indeed,
"We are dealing here with legislation which involves one of the basic civil
rights of man. Marriage and procreation are fundamental to the very existence
and survival of the race." (Skinner v. Oklahoma, supra, at p. 541.) (3)
Legislation infringing such rights must be based upon more than prejudice and
must be free from oppressive discrimination to comply with the constitutional
requirements of due process and equal protection of the laws.
I
Since the right to marry is the right to join in marriage with the person of
one's choice, a statute that prohibits an individual from marrying a member of a
race other than his own restricts the scope of his choice and thereby restricts
his right to marry. It must therefore be determined whether the state can
restrict that right on the basis of race alone without violating the equal
protection of the laws clause of the United States Constitution.
"Distinctions between citizens solely because of their ancestry are by their
very nature odious to a free people whose institutions are founded upon the
doctrine of equality. For that reason, legislative classification or
discrimination based on race alone has often been held to be [***8] a denial of
equal protection. Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220];
Yu Cong Eng v. Trinidad, 271 U.S. 500 [46 S.Ct. 619, 70 L.Ed. 1059]; Hill v.
Texas, 316 U.S. 400 [62 S.Ct. 1159, 86 L.Ed. 1559]." (Hirabayashi v. United
States, 320 U.S. 81, 100 [63 S.Ct. 1375, 87 L.Ed. 1774].) In the Hirabayashi
case the United States Supreme Court held that despite the fact that under the
Constitution of the United States "racial discriminations are in most
circumstances irrelevant and therefore prohibited, it by no means follows that,
in dealing with the perils of war, Congress and the Executive are wholly
precluded from taking into account those facts and circumstances which are
relevant to measures for our national defense and for the successful prosecution
of the war, and which may in fact place citizens of one ancestry in a different
category from others. . . . The adoption by Government, in the crisis of war
and of threatened invasion, of measures for the public safety, based upon the
recognition of facts and circumstances which indicate that a group of one
national extraction [*716] may menace that safety more than others, [***9]
is not wholly beyond the limits of the Constitution and is not to be condemned
merely because in other and in most circumstances racial distinctions are
irrelevant. . . . The [**20] fact alone that attack on our shores was
threatened by Japan rather than another enemy power set these citizens apart
from others who have no particular association with Japan." (320 U.S. 81,
100-101.) Whether or not a state could base similar measures on the peril caused
by a national emergency in the face of the equal protection of the laws clause
of the United States Constitution, which does not apply to the federal
government, it clearly could not make such a distinction based on ancestry in
the absence of an emergency.
(4) A state law prohibiting members of one race from marrying members of
another race is not designed to meet a clear and present peril arising out of an
emergency. In the absence of an emergency the state clearly cannot base a law
impairing fundamental rights of individuals on general assumptions as to traits
of racial groups. It has been said that a statute such as section 60 does not
discriminate against any racial group, since it applies alike to all persons
whether Caucasian, [***10] Negro, or members of any other race. (In re Estate
of Paquet, 101 Ore. 393, 399 [200 P. 911].) The decisive question, however, is
not whether different races, each considered as a group, are equally treated.
(5) The right to marry is the right of individuals, not of racial groups. The
equal protection clause of the United States Constitution does not refer to
rights of the Negro race, the Caucasian race, or any other race, but to the
rights of individuals. (State of Missouri ex rel. Gaines v. Canada, 305 U.S.
337, 351 [59 S.Ct. 232, 83 L.Ed. 208]; McCabe v. Atchison, Topeka & Santa Fe Ry.
Co., 235 U.S. 151, 161-162 [35 S.Ct. 69, 59 L.Ed. 169].) In construing the equal
protection of the laws clause of the Constitution, the United States Supreme
Court has declared that the constitutionality of state action must be tested
according to whether the rights of an individual are restricted because of his
race. Thus, in holding invalid state enforcement of covenants restricting the
occupation of real property on grounds of race, the Supreme Court of the United
States declared: "The rights created by the first section of the Fourteenth
Amendment are, by its terms, [***11] guaranteed to the individual. It is,
therefore, no answer to these petitioners to say that the courts may also be
induced to deny white [*717] persons rights of ownership and occupancy on
grounds of race or color. Equal protection of the laws is not achieved through
indiscriminate imposition of inequalities." (Shelley v. Kraemer, 334 U.S. 1 [68
S.Ct. 836, 846, 92 L.Ed. ].) In an earlier case, where a Negro contended that
the state's failure to give him equal facilities with others to study law within
the state impaired his constitutional rights under the equal protection clause,
the court rejected any consideration of the difference of the demand for legal
education among white persons and Negroes, stating: "Petitioner's right was a
personal one. It was as an individual that he was entitled to the equal
protection of the laws, and the State was bound to furnish him within its
borders facilities for legal education substantially equal to those which the
State there afforded for persons of the white race, whether or not other negroes
sought the same opportunity." (State of Missouri ex rel. Gaines v. Canada, 305
U.S. 337, 351 [59 S.Ct. 232, 83 L.Ed. 208]; [***12] Sipuel v. Board of Regents,
332 U.S. 631 [68 S.Ct. 299, 92 L.Ed. ].) Similarly, with regard to the
furnishing of sleeping, dining, and chair car facilities on trains, the Supreme
Court of the United States has held that even though there was less demand for
such facilities among Negroes than among whites, the right of a member of the
Negro race to substantially equal facilities was a right of the individual and
not of the racial group: "It is the individual who is entitled to equal
protection of the laws, and if he is denied by a common carrier, acting in the
matter under the authority of a state law, a facility or convenience in the
course of his journey which, under substantially the same circumstances, is
furnished to another traveler, he may properly complain that his constitutional
privilege has been invaded." (McCabe v. Atchison, Topeka & Santa Fe Railway Co.,
235 U.S. 151, 161, 162 [35 S.Ct. 69, 59 L.Ed. 169].) In these cases the United
States Supreme Court determined that the right of an individual to be treated
without discrimination because of [**21] his race can be met by separate
facilities affording substantially equal treatment to the members [***13] of
the different races. A holding that such segregation does not impair the right
of an individual to ride on trains or to enjoy a legal education is clearly
inapplicable to the right of an individual to marry. Since the essence of the
right to marry is freedom to join in marriage with the person of one's choice, a
segregation statute for marriage necessarily impairs the right to marry.
[*718] (6) In determining whether the public interest requires the
prohibition of a marriage between two persons, the state may take into
consideration matters of legitimate concern to the state. Thus, disease that
might become a peril to the prospective spouse or to the offspring of the
marriage could be made a disqualification for marriage. (See for example, Civ.
Code, §§ 79.01, 79.06.) Such legislation, however, must be based on tests of the
individual, not on arbitrary classifications of groups or races, and must be
administered without discrimination on the grounds of race. (Yick Wo v. Hopkins
, 118 U.S. 356, 373 [6 S.Ct. 1064, 30 L.Ed. 220].) It has been suggested that
certain races are more prone than the Caucasian to diseases such as
tuberculosis. If the state determines that [***14] certain diseases would
endanger a marital partner or offspring, it may prohibit persons so diseased
from marrying, but the statute must apply to all persons regardless of race.
Sections 60 and 69 are not motivated by a concern to diminish the transmission
of disease by marriage, for they make race and not disease the disqualification.
Thus, a tubercular Negro or a tubercular Caucasian may marry subject to the race
limitation, but a Negro and a Caucasian who are free from disease may not marry
each other. If the purpose of these sections was to prevent marriages by
persons who do not have the qualifications for marriage that the state may
properly prescribe, they would make the possession of such qualifications the
test for members of all races alike. By restricting the individual's right to
marry on the basis of race alone, they violate the equal protection of the laws
clause of the United States Constitution.
II
The parties, however, have argued at length the question whether the statute
is arbitrary and unreasonable. They have assumed that under the equal
protection clause the state may classify individuals according to their race in
legislation regulating their fundamental [***15] rights. If it be assumed that
such a classification can validly be made under the equal protection clause in
circumstances besides those arising from an emergency, the question would remain
whether the statute's classification of racial groups is based on differences
between those groups bearing a substantial relation to a legitimate legislative
objective. (Barker Bros., Inc. v. Los Angeles, 10 Cal.2d 603, 609 [76 P.2d 97];
Gulf etc. R. Co. v. Ellis, 165 U.S. 150, 165, 166 [17 S.Ct. 255, 41 L.Ed. 666];
Quaker City [*719] Cab Co. v. Pennsylvania, 277 U.S. 389, 400 [48 S.Ct. 553,
72 L.Ed. 927].) Race restrictions must be viewed with great suspicion, for the
Fourteenth Amendment "was adopted to prevent state legislation designed to
discriminate on the basis of race or color" (Railway Mail Ass'n. v. Corsi, 326
U.S. 88, 94 [65 S.Ct. 1483, 89 L.Ed. 2072]; Williams v. International
Brotherhood of Boilermakers, 27 Cal.2d 586, 590 [165 P.2d 903]) and expresses "a
definite national policy against discriminations because of race or color." (
James v. Marinship Corp., 25 Cal.2d 721, 740 [155 P.2d 329, 160 A.L.R. 900].)
Any state [***16] legislation discriminating against persons on the basis of
race or color has to overcome the strong presumption inherent in this
constitutional policy. "Only the most exceptional circumstances can excuse
discrimination on that basis in the face of the equal protection clause . . ." (
Oyama v. California, 332 U.S. 633 [68 S.Ct. 269, 275, 92 L.Ed. ].) We shall
therefore examine the history of the legislation in question and the arguments
in its support to determine whether there are any exceptional circumstances
sufficient to justify it.
California's first miscegenation statute (Stats. 1850, ch. 140, p. 424) was
enacted at the same time as two other statutes concerning race. It has been
held that these three statutes were in pari materia and therefore to be read
together. (Estate of Stark, 48 Cal.App.2d 209, 214 [119 [**22] P.2d 961].)
The two companion statutes provided: "No black or mulatto person, or Indian,
shall be permitted to give evidence in favor of, or against, any white person.
Every person who shall have one-eighth part or more of Negro blood shall be
deemed a mulatto, and every person who shall have one half of Indian blood shall
be deemed [***17] an Indian." (Stats. 1850, ch. 99, § 14, p. 230; repealed Code
Civ. Proc., § 18, 1872.) "No black, or mulatto person, or Indian, shall be
permitted to give evidence in any action to which a white person is a party, in
any Court of this State. Every person who shall have one eighth part or more of
negro blood, shall be deemed a mulatto; and every person who shall have one half
Indian blood, shall be deemed an Indian." (Stats. 1850, ch. 142, § 306, p. 455;
repealed Code Civ. Proc., § 18, 1872.)
In 1854, this court held that Chinese (and all others not white) were
precluded from being witnesses against white persons on the basis of the statute
quoted above. (People v. Hall, 4 Cal. 399, 404.) The considerations motivating
the decision [*720] are candidly set forth: "The anomalous spectacle of a
distinct people [Chinese], living in our community, recognizing no laws of this
State except through necessity, bringing with them their prejudices and national
feuds, in which they indulge in open violation of law; whose mendacity is
proverbial; a race of people whom nature has marked as inferior, and who are
incapable of progress or intellectual development beyond a certain [***18]
point, as their history has shown; differing in language, opinions, color, and
physical conformation; between whom and ourselves nature has placed an
impassable difference, is now presented, and for them is claimed, not only the
right to swear away the life of a citizen, but the further privilege of
participating with us in administering the affairs of our Government." (People
v. Hall, supra, at pp. 404-405.) For these reasons, therefore, "all races other
than Caucasian" were held to be included in a statute referring only to a "black
or mulatto person, or Indian."
California courts are not alone in such utterances. Many courts in this
country have assumed that human beings can be judged by race and that other
races are inferior to the Caucasian. Respondent's position is based upon those
premises. He justifies the prohibition of miscegenation on grounds similar to
those set forth in the frequently cited case of Scott v. State (1869), 39 Ga.
321, 324: "The amalgamation of the races is not only unnatural, but is always
productive of deplorable results. Our daily observation shows us, that the
offspring of these unnatural connections are generally sickly and effeminate,
[***19] and that they are inferior in physical development and strength, to the
full blood of either race." n2 Modern experts are agreed that the progeny of
marriages between persons of different races are not inferior to both parents.
n3 Nevertheless, even if we were to assume that interracial [*721] marriage
results in inferior progeny, we are unable to find any clear policy in the
statute against marriages on that ground.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Respondent refers to the following language in State v. Jackson, 80 Mo.
175, 179 [50 Am.Rep. 499], although stating that "we have not found any other
statement to bear out the biological claims" therein: "It is stated as a well
authenticated fact that if the issue of a black man and a white woman, and a
white man and a black woman intermarry, they cannot possibly have any progeny,
and such a fact sufficiently justifies those laws which forbid the intermarriage
of blacks and whites, laying out of view other sufficient grounds for such
enactments."
n3 See, Castle, Biological and Sociological Consequences of Race Crossing, 9
Am. J. of Physical Anthropology, pp. 145, 152-153; Linton, Sterling Professor
Anthropology, Yale Univ. and President of the American Anthropological
Association, 64 Am.Merc. p. 133 (February 1947).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***20]
(7) Civil Code, section 60, like most miscegenation statutes (see,
Vernier, American Family Laws, § 44), prohibits marriages only between "white
persons" and members of certain other so-called races. Although section 60 is
more inclusive than most miscegenation statutes, it does not include "Indians"
or "Hindus" (see, United States v. Bhagat Singh Thind, 261 U.S. 204, 214-215 [43
S.Ct. 338, 67 L.Ed. 616]); nor does it set up "Mexicans" as a [**23] separate
category, although some authorities consider Mexico to be populated at least in
part by persons who are a mixture of "white" and "Indian." (See, 15 Encyclopedia
Britannica, pp. 381-382, 60 Harv.L.Rev. 1156-1158.) Thus, "white persons" may
marry persons who would be considered other than white by respondent's
authorities, and all other "races" may intermarry freely.
The Legislature therefore permits the mixing of all races with the single
exception that white persons may not marry Negroes, Mongolians, mulattoes, or
Malays. It might be concluded therefrom that section 60 is based upon the
theory that the progeny of a white person and a Mongolian or Negro or Malay are
inferior or undesirable, while the progeny of members [***21] of other
different races are not. Nevertheless, the section does not prevent the mixing
of "white" and "colored" blood. It permits marriages not only between Caucasians
and others of darker pigmentation, such as Indians, Hindus, and Mexicans, but
between persons of mixed ancestry including white. If a person of partly
Caucasian ancestry is yet classified as a Mongolian under section 60 because his
ancestry is predominantly Mongolian, a considerable mixture of Caucasian and
Mongolian blood is permissible. A person having five-eighths Mongolian blood
and three-eighths white blood could properly marry another person of
preponderantly Mongolian blood. Similarly, a mulatto can marry a Negro. Under
the theory of Estate of Stark, supra, that a mulatto is a person having
one-eighth or more of Negro ancestry, a person having seven-eighths white
ancestry could marry a Negro. In fact two mulattoes, each of four-eighths white
and four-eighths Negro blood, could marry under section 60, and their progeny,
like them, would belong as much to one race as to the other. In effect,
therefore, section 60 permits a substantial amount of intermarriage between
persons of some [*722] Caucasian [***22] ancestry and members of other races.
Furthermore, there is no ban on illicit sexual relations between Caucasians and
members of the proscribed races. Indeed, it is covertly encouraged by the race
restrictions on marriage.
Nevertheless, respondent has sought to justify the statute by contending that
the prohibition of intermarriage between Caucasians and members of the specified
races prevents the Caucasian race from being contaminated by races whose members
are by nature physically and mentally inferior to Caucasians.
Respondent submits statistics relating to the physical inferiority of certain
races. Most, if not all, of the ailments to which he refers are attributable
largely to environmental factors. Moreover, one must take note of the
statistics showing that there is a higher percentage of certain diseases among
Caucasians than among non-Caucasians. n4 The categorical statement [**24]
that non-Caucasians are inherently physically inferior is without scientific
proof. In recent years scientists have attached great weight to the fact that
their segregation in a generally inferior environment greatly increases their
liability to physical ailments. n5 In any event, generalizations [***23]
[*723] based on race are untrustworthy in view of the great variations among
members of the same race. The rationalization, therefore, that marriage between
Caucasians and non-Caucasians is socially undesirable because of the physical
disabilities of the latter, fails to take account of the physical disabilities
of Caucasians and fails also to take account of variations among non-Caucasians.
The Legislature is free to prohibit marriages that are socially dangerous
because of the physical disabilities of the parties concerned. (See, Civ. Code
§§ 79.01, 79.06.) The miscegenation statute, however, condemns certain races as
unfit to marry with Caucasians on the premise of a hypothetical racial
disability, regardless of the physical qualifications of the individuals
concerned. If this premise were carried to its logical conclusion,
non-Caucasians who are now precluded from marrying Caucasians on physical
grounds would also be precluded from marrying among themselves on the same
grounds. The concern to prevent marriages in the first category and the
indifference about marriages in the second reveal the spuriousness of the
contention that intermarriage between Caucasians and non-Caucasians [***24] is
socially dangerous on physical grounds.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Between 1930 and 1939 in California deaths resulted most frequently from
diseases of the circulatory system, particularly heart diseases. These diseases
were most prevalent among white persons, not including Mexicans, with the
exception of Chinese, who slightly exceeded white persons. The second most
important cause of death was cancer; here, white persons exceeded all others
without exception. Tuberculosis, an important cause of death, occurs with
greater frequency among Negroes than among white persons, not including
Mexicans; but Mexicans, Indians, Chinese and Malays have materially higher death
rates owing to tuberculosis than Negroes and Japanese. Diseases of the nervous
system occur with less frequency among Indians, Japanese, Mexicans, and Malays
than among white persons, Negroes, and Chinese. (The Population of California,
Commonwealth Club of California Research Service (1946) pp. 217 et seq.)
Respondent's contention that fertility of Negroes and mulattoes is low is
questionable. (See note 3, supra) Dr. S. J. Holmes (1937) The Negro's Struggle
for Survival, p. 176, states: "The fact is that we have not adequate data on a
sufficiently large scale to enable us to decide how the mixed origin of the
mulatto affects fertility, if it affects it at all." Although Negro fertility
rates are generally lower than those of white persons, other non-whites far
exceed whites in birth rate. Further, the fertility rate of Rural-farm Negroes
exceeds that of Rural-farm whites. Scientists give various interpretations of
statistics on fertility, analyzing them in the light of environmental as well as
hereditary factors. (Population of California, supra, pp. 212 et seq.; see I
Myrdal, p. 134, ch. 7.) [***25]
n5 See, I Myrdal, pp. 140-144; S. J. Holmes, The Negro's Struggle for
Survival, p. 130.
Respondent contends, however, that there is a racial ailment among Negroes
known as sickle-cell anemia. According to the Cyclopedia of Medicine, Surgery
and Obstetrics (1946) Vol. 2, p. 746, quoted by respondent, "Statistical studies
indicate that 7 to 8 per cent of Negroes show the sickle-cell trait, though not
necessarily suffering from sickle-cell anemia." Assuming that the sickle-cell
trait is found only in Negroes, despite known extensive intermixture of the
races, respondent has shown only the trait and not the prevalence of sickle-cell
anemia. Civil Code section 79.01, which requires a premarital blood test, makes
no provision for a report on sickle-cell anemia.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Respondent also contends that Negroes, and impliedly the other races
specified in section 60, are inferior mentally to Caucasians. It is true that
in the United States catalogues of distinguished people list more Caucasians
than members of other races. It cannot be disregarded, however, that Caucasians
are in the great majority and have [***26] generally had a more advantageous
environment, and that the capacity of the members of any race to contribute to a
nation's culture depends in large measure on how freely they may participate in
that culture. There is no scientific proof that one race is superior to another
in native ability. n6 The date on [**25] which [*724] Caucasian superiority
is based have undergone considerable reevaluation by social and physical
scientists in the past two decades. Although scientists do not discount the
influence of heredity on the ability to score highly on mental tests, there is
no certain correlation between race and intelligence. There have been
outstanding individuals in all races, and there has also been wide variation in
the individuals of all races. In any event the Legislature has not made an
intelligence test a prerequisite to marriage. If respondent's blanket
condemnation of the mental ability of the proscribed races were accepted, there
would be no limit to discriminations based upon the purported inferiority of
certain races. It would then be logical to forbid Negroes to marry Negroes, or
Mongolians to marry Mongolians, on the ground of mental inferiority, or by
[***27] sterilization to decrease their numbers.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 See, I Myrdal, pp. 147-148: "These negative conclusions from many decades
of the most painstaking scientific labor stand in glaring contrast to the
ordinary white American's firm conviction that there are fundamental psychic
differences between Negroes and whites. The reason for this contrast is not so
much that the ordinary white American has made an error in observation, for most
studies of intelligence show that the average Negro in the sample, if judged by
performance on the test, is inferior to the average white person in the sample,
and some studies show that the average Negro has certain specific personality
differences from the white man, but that he has made an error in inferring that
observed differences were innate and a part of 'nature.' He has not been able to
discern the influence of gross environmental differences, much less the
influence of more subtle life experiences. The fact should not be ignored,
however, that he has also made many observational errors, because his
observations have been limited and biased." See, also, Ralph Linton, Sterling
Professor of Anthropology, Yale University, 64 Am.Merc. pp. 133, 139; Joseph
Peterson & Lyle H. Lanier, Studies in the Comparative Abilities of Whites and
Negroes, No. 5, Mental Measurement Monographs (1929); Otto Klineberg, A Study of
Psychological Differences Between "Racial" and National Groups in Europe,
Archives of Psychology, No. 132, vol. XX, (1931); Thomas Russell Garth (1931)
Race Psychology, A Study of Racial Mental Differences; I Myrdal, pp. 144-153;
Otto Klineberg, (1935) Negro Intelligence and Selective Migration; Ruth Benedict
(1943) Race: Science and Politics, pp. 98-147.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***28]
Respondent contends, however, that persons wishing to marry in contravention
of race barriers come from the "dregs of society" and that their progeny will
therefore be a burden on the community. There is no law forbidding marriage
among the "dregs of society," assuming that this expression is capable of
definition. If there were such a law, it could not be applied without a proper
determination of the persons that fall within that category, a determination
that could hardly be made on the basis of race alone.
Respondent contends that even if the races specified in the statute are not
by nature inferior to the Caucasian race, the statute can be justified as a
means of diminishing race tension and preventing the birth of children who might
become social problems.
[*725] It is true that in some communities the marriage of persons of
different races may result in tension. Similarly, race tension may result from
the enforcement of the constitutional requirement that persons must not be
excluded from juries solely on the ground of color, or segregated by law to
certain districts within a city. In Buchanan v. Warley, 245 U.S. 60, 81 [38
S.Ct. 16, 62 L.Ed. 149], the Supreme [***29] Court of the United States
declared unconstitutional a statute forbidding a "white person" to move into a
block where the greater number of residences were occupied by "colored persons"
and forbidding a "colored person" to move into a block where the greater number
of residences were occupied by "white persons." The contention was made that the
"proposed segregation will promote the public peace by preventing race
conflicts." The court stated in its opinion that desirable "as this is, and
important as is the preservation of the public peace, this aim cannot be
accomplished by laws or ordinances which deny rights created or protected by the
Federal Constitution." (See, Cantwell v. State, 310 U.S. 296, 310 [60 S.Ct. 900,
84 L.Ed. 1213, 128 A.L.R. 1352].)
The effect of race prejudice upon any community is unquestionably detrimental
both to the minority that is singled out for discrimination and to the dominant
group that would perpetuate the prejudice. It is no answer to say that race
tension can be eradicated through the perpetuation by law of the prejudices that
give rise to the tension. Nor can any reliance be placed on the decisions of
the United States Supreme Court [***30] upholding laws requiring segregation of
races in facilities supplied by local common carriers and schools, for that
court has made it clear that in those instances the state must secure equal
facilities for all persons regardless of race in order that no substantive right
be impaired. (Sipuel v. Board of Regents, 332 U.S. 631 [68 S.Ct. 299, 92 L.Ed.
], [16 U.S. Law Week 4090]; Missouri ex rel. Gaines v. Canada, 305 U.S. 337,
350-351 [59 S.Ct. 232, 83 L.Ed. 208].) In the present case, however, there is no
redress for the serious restriction of the right of Negroes, mulattoes,
Mongolians, and Malays to marry; certainly there is none in the corresponding
restriction of the right of Caucasians to marry. A member of any of these races
may find himself barred by law from marrying the person of his choice and that
person to him may be irreplaceable. Human beings are bereft of worth and
dignity by a doctrine that would make them as interchangeable as trains.
[*726] [**26] Respondent relies on Pace v. Alabama, 106 U.S. 583 [1 S.Ct.
637, 27 L.Ed. 207], in which the United States Supreme Court held constitutional
an Alabama statute imposing more [***31] severe punishment for adultery or
fornication between a white person and a Negro than for such acts between
individuals belonging to the same race. The Alabama statute also referred to
intermarriage but the court considered the case as one dealing solely with
adultery and nonmarital intercourse. We are not required by the facts of this
case to discuss the reasoning of Pace v. Alabama except to state that adultery
and nonmarital intercourse are not, like marriage, a basic right, but are
offenses subject to various degrees of punishment.
The rationalization that race discrimination diminishes the contacts and
therefore the tensions between races would perpetuate the deprivation of rights
of racial minorities. It would justify an abridgment of their privilege of
holding office, of jury service, of entering the professions. The courts have
made it clear that these privileges are not the prerogatives of any race.
It is contended that interracial marriage has adverse effects not only upon
the parties thereto but upon their progeny. Respondent relies on Buck v. Bell,
274 U.S. 200 [47 S.Ct. 584, 71 L.Ed. 1000], for the proposition that the state
"may properly protect [***32] itself as well as the children by taking steps
which will prevent the birth of offspring who will constitute a serious social
problem, even though such legislation must necessarily interfere with a natural
right." That case, however, involved a statute authorizing sterilization of
imbeciles following scientific verification and the observance of procedural
guarantees. In Buck v. Bell the person sterilized was the feeble-minded child
of a feeble-minded mother and was herself the mother of an illegitimate
feeble-minded child. (See, Welf. & Inst. Code, § 6624.) The inheritability of
mental defectiveness does not concern us here, for this case does not involve
mentally defective persons. The Supreme Court of the United States later
forbade the sterilization of criminals in Skinner v. Oklahoma, supra, where the
Legislature failed to provide a fair hearing and set up illogical and
discriminatory categories. The racial categories in the miscegenation law are
as illogical and discriminatory as those condemned by the Supreme Court in
Skinner v. Oklahoma; and there is a corresponding lack of a fair hearing.
[*727] Respondent maintains that Negroes are socially [***33] inferior and
have so been judicially recognized (e.g., Wolfe v. Georgia Ry. & Elec. Co., 2
Ga.App. 499 [58 S.E. 899, 901]), and that the progeny of a marriage between a
Negro and a Caucasian suffer not only the stigma of such inferiority but the
fear of rejection by members of both races. If they do, the fault lies not with
their parents, but with the prejudices in the community and the laws that
perpetuate those prejudices by giving legal force to the belief that certain
races are inferior. If miscegenous marriages can be prohibited because of
tensions suffered by the progeny, mixed religious unions could be prohibited on
the same ground. n7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 Indeed, Father John La Farge, S. J. (1943) The Race Question and The Negro
(Permissu Superiorum), p. 196, considers the tensions "not unlike."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
There are now so many persons in the United States of mixed ancestry, that
the tensions upon them are already diminishing and are bound to diminish even
more in time. n8 Already many of the progeny of mixed marriages [***34] have
made important contributions to the community. In any event the contention that
the misceganation laws prohibit interracial marriage because of its adverse
effects on the progeny is belied by the extreme racial intermixture that it
tolerates.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 See, M. J. Herskovits (1930) The Anthropometry of the American Negro; E.
B. Reuter (1931) Race Mixture; I Myrdal, Pp. 132-133, 1360-1361.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
For many years progress was slow in the dissipation of the insecurity that
haunts racial minorities, for there are many who believe that their own security
depends on its maintenance. Out of earnest belief, or out of irrational fears,
they reason in a circle that such minorities are inferior in health,
intelligence, and culture, and that this inferiority proves the need of the
barriers of race prejudice.
[**27] Careful examination of the arguments in support of the legislation
in question reveals that "there is absent the compelling justification which
would be needed to sustain discrimination of that nature." (Oyama [***35] v.
California, 332 U.S. 633 [68 S.Ct. 269, 272, 92 L.Ed. ].) Certainly the fact
alone that the discrimination has been sanctioned by the state for many years
does not supply such justification. (Shelley v. Kraemer, 334 U.S. 1 [68 S.Ct.
836, 92 L.Ed. ]; Oyama v. California, supra; Takahashi v. Fish & Game Com.,
334 U.S. 410 [68 S.Ct. 1138, 92 L.Ed. ]; see Winters v. New York, 333 U.S. 507
[68 S.Ct. 665, 92 L.Ed. ].)
[*728] III
(8a) Even if a state could restrict the right to marry upon the basis of
race alone, sections 60 and 69 of the Civil Code are nevertheless invalid
because they are too vague and uncertain to constitute a valid regulation. A
certain precision is essential in a statute regulating a fundamental right. "It
is the duty of the lawmaking body in framing laws to express its intent in clear
and plain language to the end that the people upon whom it is designed to
operate may be able to understand the legislative will." (In re Alpine, 203 Cal.
731, 736-737 [265 P. 947, 58 A.L.R. 1500]; cases collected 50 Am.Jur. 484.) "It
is a fundamental rule that no citizen should be deprived of his liberty for the
[***36] violation of a law which is uncertain and ambiguous." (In re Stewart,
24 Cal.2d 344, 348 [149 P.2d 689]; In re Peppers, 189 Cal. 682, 686 [209 P.
896]; United States v. Cohen Grocery Co., 255 U.S. 81, 89-92 [41 S.Ct. 298, 65
L.Ed. 516]; Lanzetta v. New Jersey, 306 U.S. 451, 453 [59 S.Ct. 618, 83 L.Ed.
888]; Connally v. General Construction Co., 269 U.S. 385, 391 [46 S.Ct. 126, 70
L.Ed. 322].)
(9) The requirement that a law be definite and its meaning ascertainable
by those whose rights and duties are governed thereby applies not only to penal
statutes, but to laws governing fundamental rights and liberties. (Standard C.
& M. Corp. v. Waugh C. Corp., 231 N. Y. 51, 54 [131 N.E. 566, 14 A.L.R. 1054];
Small Co. v. American Sugar Ref. Co., 267 U.S. 233, 239 [45 S.Ct. 295, 69 L.Ed.
589]; see also State ex rel. Dickason v. Harris, 158 La. 974, 978 [105 So. 33].)
Thus, this court in Hewitt v. Board of Medical Examiners, 148 Cal. 590, 595 [84
P. 39, 113 Am.St.Rep. 315, 7 Ann.Cas. 750, 3 L.R.A.N.S. 896] declared invalid a
statute regulating the practice of medicine on the ground that its provisions
were too vague [***37] and uncertain to govern one's right to practice a
profession. In In re Di Torio, 8 F.2d 279, 281 it was held that a provision of
a statute regulating naturalization of aliens was invalid on the same ground.
Although the provision in question seemed clear on its face, the court refused
to apply the statute to vacate an order of admission to citizenship because "An
act is void where its language appears on its face to have a meaning, but it is
impossible to give it any precise or intelligible application in the
circumstances under which it was intended to operate." (In re Di Torio, supra at
281 and cases there cited.)
(8b) Section 60 of the Civil Code declares void all marriages of white
persons with Negroes, Mongolians, members [*729] of the Malay race or
mulattoes. In this section, the Legislature has adopted one of the many systems
classifying persons on the basis of race. Racial classifications that have been
made in the past vary as to the number of divisions and the features regarded as
distinguishing the members of each division. The number of races distinguished
by systems of classification "varies from three or four to thirty-four." (Boas,
7 Encyclopedia of Soc. [***38] Sciences, 25, 26.) The Legislature's
classification in section 60 is based on the system suggested by Blumenbach
early in the nineteenth century. (Roldan v. Los Angeles County, 129 Cal.App.
267, 273 [18 P.2d 706].) Blumenbach classified man into five races: Caucasian
(white), Mongolian (yellow), Ethiopian (black), American Indian (red), and
Malayan (brown). Even if that hard and fast classification be applied to
persons all of whose ancestors belonged to one of these racial divisions, n8a
the Legislature has made no provision for applying the statute to persons of
mixed ancestry. [**28] The fact is overwhelming that there has been a steady
increase in the number of people in this country who belong to more than one
race, and a growing number who have succeeded in identifying themselves with the
Caucasian race even though they are not exclusively Caucasian. Some of these
persons have migrated to this state; some are born here illegitimately; others
are the progeny of miscegenous marriages valid where contracted and therefore
valid in California. (Pearson v. Pearson, 51 Cal. 120, 125.) The apparent
purpose of the statute is to discourage the birth of children [***39] of mixed
ancestry within this state. Such a purpose, however, cannot be accomplished
without taking into consideration marriages of persons of mixed ancestry. A
statute regulating fundamental rights is clearly unconstitutional if it cannot
be reasonably applied to accomplish its purpose. This court therefore cannot
determine the constitutionality of the statute in question on the assumption
that its provisions might, with sufficient definiteness, be applied to persons
not of mixed ancestry.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8a See Julian S. Huxley and H. C. Haddon (1936) We Europeans, A Survey of
"Racial" Problems, 1-15, 82, 106, 115-131, 215-236.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The only reference made in the statute to persons of mixed ancestry is the
prohibition of marriages between a "white person" and a "mulatto." Even the term
"mulatto" is not defined. The lack of a definition of that term leads to a
special problem of how the statute is to be applied to a [*730] person, some
but not all of whose ancestors are Negroes. n9 The only case in this state
attempting [***40] to define the term "mulatto" in section 60 of the Civil Code
leaves undecided whether a person with less than one-eighth Negro blood is a
"mulatto" within the meaning of the statute. (Estate of Stark, 48 Cal.App.2d
209, 214 [119 P.2d 961].) Even more uncertainty surrounds the meaning of the
terms "white persons," "Mongolians," and "members of the Malay race."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 Black's Law Dictionary (3d ed.) defines a mulatto as "A person that is the
offspring of a negress by a white man, or of a white woman by a negro. . . . In
a more general sense, a person of mixed Caucasian and negro blood, or Indian and
Negro blood. . . . Properly a mulatto is a person one of whose parents is
wholly black and the other wholly white; but the word does not always, though
perhaps it does generally, require so exactly even a mixture of blood, nor is
its signification alike in all the states. . . ." The same source defines a
Negro as follows: "The word 'negro' means a black man, one descended from the
African race, and does not commonly include a mulatto. . . . But the laws of
the different states are not uniform in this respect, some including in the
description 'negro' one who has one-eighth or more of African blood. Term 'negro
' means necessarily person of color, but not every person of color is a 'negro'.
" The foregoing definitions of "Mulatto" and "Negro" are substantially the same
as the definitions contained in Bouvier's Law Dictionary.
See also I Myrdal, An American Dilemma, p. 113: "Legislation in this respect
tends to conform to social usage, although often it is not so exclusive. In
some states one Negro grandparent defines a person as a Negro for legal
purposes, in other states any Negro ancestor -- no matter how far removed -- is
sufficient. In the Southern states definitions of who is a Negro are often
conflicting. Since reconstruction, there has been a tendency to broaden the
definition. The Northeastern states generally have no definition of Negro in
law."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***41]
If the statute is to be applied generally to persons of mixed ancestry the
question arises whether it is to be applied on the basis of the physical
appearance of the individual or on the basis of a genealogical research as to
his ancestry. If the physical appearance of the individual is to be the test,
the statute would have to be applied on the basis of subjective impressions of
various persons. Persons having the same parents and consequently the same
hereditary background could be classified differently. On the other hand, if
the application of the statute to persons of mixed ancestry is to be based on
genealogical research, the question immediately arises what proportions of
Caucasian, Mongolian, or Malayan ancestors govern the applicability of the
statute. Is it any trace of Mongolian or Malayan ancestry, or is it some
unspecified proportion of such ancestry that makes a person a Mongolian or
Malayan within the meaning of section 60?
To determine that a person is a Mongolian [**29] or Malayan within the
meaning of the statute because of any trace of [*731] such ancestry, however
slight, would be absurd. If the classification of a person of mixed ancestry
depends [***42] upon a given proportion of Mongolians or Malayans among his
ancestors, how can this court, without clearly invading the province of the
Legislature, determine what that decisive proportion is? (See, Pacific Coast
etc. Bank v. Roberts, 16 Cal.2d 800, 805 [108 P.2d 439].) Nor can this court
assume that a predominance in number of ancestors of one race makes a person a
Caucasian, Mongolian, or Malayan within the meaning of the statute, for absurd
results would follow from such an assumption. Thus, a person with
three-sixteenths Malay ancestry might have many so-called Malay characteristics
and yet be considered a white person in terms of his preponderantly white
ancestry. Such a person might easily find himself in a dilemma, for if he were
regarded as a white person under section 60, he would be forbidden to marry a
Malay, and yet his Malay characteristics might effectively preclude his marriage
to another white person. Similarly, a person having three-eighths Mongolian
ancestry might legally be classed as a white person even though he possessed
Mongolian characteristics. He might have little opportunity or inclination to
marry any one other than a Mongolian, yet section [***43] 60 might forbid such
a marriage. Moreover, if a person were of four-eighths Mongolian or Malayan
ancestry and four-eighths white ancestry, a test based on predominance in number
of ancestors could not be applied.
Section 69 of the Civil Code and section 60 on which it is based are
therefore too vague and uncertain to be upheld as a valid regulation of the
right to marry. Enforcement of the statute would place upon the officials
charged with its administration and upon the courts charged with reviewing the
legality of such administration the task of determining the meaning of the
statute. That task could be carried out with respect to persons of mixed
ancestry only on the basis of conceptions of race classification not supplied by
the Legislature. "If no judicial certainty can be settled upon as to the
meaning of a statute, the courts are not at liberty to supply one." (In re Di
Torio, 8 F.2d 279, 281.)
In summary, we hold that sections 60 and 69 are not only too vague and
uncertain to be enforceable regulations of a fundamental right, but that they
violate the equal protection of the laws clause of the United States
Constitution by impairing the right of individuals to marry [***44] on the
basis of race [*732] alone and by arbitrarily and unreasonably discriminating
against certain racial groups.
Let the peremptory writ issue as prayed.
CONCURBY:
CARTER; EDMONDS
CONCUR:
CARTER, J., concurring. It is my considered opinion that the statutes here
involved (Civ. Code, §§ 60, 69) are the product of ignorance, prejudice and
intolerance, and I am happy to join in the decision of this court holding that
they are invalid and unenforceable. This decision is in harmony with the
declarations contained in the Declaration of Independence which are guaranteed
by the Bill of Rights and the Fourteenth Amendment to the Constitution of the
United States and reaffirmed by the Charter of the United Nations, that all
human beings have equal rights regardless of race, color or creed, and that the
right to liberty and the pursuit of happiness is inalienable and may not be
infringed because of race, color or creed. To say that these statutes may stand
in the face of the concept of liberty and equality embraced within the ambit of
the above-mentioned fundamental law is to make of that concept an empty, hollow
mockery.
The Declaration of Independence declares: "We hold these truths [***45] to
be self evident: That all men are created equal; that they are endowed by their
Creator with certain unalienable rights; that among these are life, liberty and
the pursuit of happiness; . . ."
The Fifth Amendment to the Constitution of the United States provides that:
"No person shall be deprived of [**30] life, liberty or property without due
process of law."
The Fourteenth Amendment to the Constitution of the United States provides:
"Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws."
The Charter of the United Nations contains the following declaration: "We the
Peoples of the United Nations determined: . . . to reaffirm faith in fundamental
human rights, in the dignity and worth of the human person, in the [*733]
equal rights of men and women [***46] and of nations large and small . . . to
promote social progress and better standards of life in larger freedom, . . .
And for these ends . . . to practice tolerance . . ." (Preamble.) ". . . in
promoting and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language, or religion . . ." (Ch.
I, art. I, § 3.)
In the face of these authoritative pronouncements the matter of race equality
should be a settled issue. It is, at least, a settled issue so far as the
fundamental law is concerned. And the only question before us is whether the
Legislature may enact a valid statute in direct conflict with this fundamental
law. It seems clear to me that it is not possible for the Legislature, in the
face of our fundamental law, to enact a valid statute which proscribes conduct
on a purely racial basis. Such are the statutes here involved. The wisdom of
the broad, liberal concept of liberty and equality declared in our fundamental
law should be apparent to every unprejudiced mind.
The Apostle Paul declared that: "God . . . hath made of one blood all nations
of men for to dwell on all the face of the earth, and hath determined the
[***47] times before appointed, and the bounds of their habitation." (The Acts
of the Apostles, ch. 17, v. 26.)
Cedric Dover writes in his book "Half-Caste": "Perhaps our Neanderthal
ancestors arose from mixture between apemen of the Ice Age. Perhaps our
Neolithic prototypes emerged from relations between the Aurignacian invaders of
Europe and the local Neanderthals. We shall be content with the knowledge that
miscegenation has influenced human evolution from the earliest times, that there
has not been a pure race of our species for at least ten thousand years."
In a letter to Chastellux in 1785 Thomas Jefferson wrote: "I have supposed
the black man, in his present state, might not be in body and mind equal to the
white man; but it would be hazardous to affirm that, equally cultivated for a
few generations, he would not become so." Notwithstanding this statement,
Jefferson, who was the author of the Declaration of Independence, made it clear
that the Negro is entitled to enjoy equally with others the "unalienable rights
of life, liberty and the pursuit of happiness."
The Declaration of Independence is a part of the law of our land. It is to
be found as part of the Statutes at Large [***48] [*734] on page 1 of volume
1. It has been given effect as a legislative enactment (Inglis v. Trustees of
the Sailor's Snug Harbor, 28 U.S. (3 Pet.) 99 [7 L.Ed. 617], and other cases
cited in U.S.C.A., 1 Constitution, pp. 7, 8; Fidelity & Casualty Co. of New York
v. Union Savings Bank Co., 29 Ohio App. 154 [163 N.E. 221]). It declares that:
"All men are created equal; that they are endowed by their Creator with certain
unalienable rights; that among these are life, liberty and the pursuit of
happiness; . . ." No one will question that, so far as petitioners are
concerned, this case involves the pursuit of happiness in its clearest and most
universally approved form.
It is a matter of law as well as historical knowledge that after the
Revolution all men were not, in law, equal (Dred Scott v. Sanford, 19 How.
(U.S.) 393 [15 L.Ed. 691]). But it is well to remember that men fought, [**31]
bled, and died for the truth of the proposition.
In the Dred Scott case, supra, the truth of the proposition was questioned
and denied in an opinion by Chief Justice Taney. It is again a matter of
historical knowledge that this decision helped to kindle the [***49] fire which
brought on the Civil War. In this war men fought, bled and died for their
belief in the essential equality of man.
Abraham Lincoln, in his never-to-be-forgotten Gettysburg Address, told us,
because he was speaking to the future as well as of the past, that "Four score
and seven years ago our fathers brought forth upon this continent, a new nation,
conceived in Liberty, and dedicated to the proposition that all men are created
equal." He asked whether "[Any] nation, so conceived and so dedicated, can long
endure." The Civil War was supposed to definitely and conclusively answer that
question. This being so, should a state, or even a number of states, legislate
to destroy that ideal when great wars have been fought to preserve it? An ideal
for which men gave their lives and the lives of their families should be a
precious heritage to be carefully guarded. And yet all men are not now being
given equal treatment!
The freedom to marry the person of one's choice has not always existed, and
evidently does not exist here today. But is not that one of the fundamental
rights of a free people? Blackstone said that: "Liberty consists in being
limited only by that [***50] Supreme Law which is the expression of abstract
right." If the right to marry is a fundamental right, then it must be conceded
that an infringement of that right by [*735] means of a racial restriction is
an unlawful infringement of one's liberty. It is immaterial that perhaps only a
few would wish to marry persons not of their own race or color. It is material
that the few who do so desire have the right to make that choice. It is only
ignorance, prejudice and intolerance which denies it. Since this state will
recognize as valid a marriage performed in another state between members of
these two races it follows that the marriage cannot be considered vitally
detrimental to the public health, welfare and morals.
The Constitution of the State of California, article I, section 13, provides
that no person shall be deprived of life, liberty or property without due
process of law. Due process of law consists not only of the individual's right
to procedural due process, but his right to substantive due process -- that the
state, through legislation, shall not deprive him of one of his "liberties."
Our Constitution, like the Constitution of the United States, is a
restriction [***51] upon the powers of the state. Upon this court devolves the
duty of guarding that Constitution and the rights it protects, as upon the
Supreme Court of the United States devolves the duty of guarding the
Constitution of the United States.
The student of constitutional law knows that the Civil War amendments to the
Constitution did not accomplish their intended purpose, which was to create a
real, over-all equality such as the Declaration of Independence contemplated,
and which such cases as the Dred Scott case prevented from being realized.
(Waite, The Negro in the Supreme Court, 30 Minn.L.Rev. 219.)
In the years following the adoption of the Thirteenth, Fourteenth and
Fifteenth Amendments, many courts still did not think that there was real
equality among men despite the fact that the language of the amendments is quite
clear. Another round of the vicious circle was begun, this time by limiting as
far as possible the language of the amendments. Many cases might be cited to
support this view, but the hardest blow to liberal minded persons -- the biggest
step backwards into days of slavery -- was the decision in Plessy v. Ferguson,
163 U.S. 537 [16 S.Ct. 1138, 41 L.Ed. [***52] 256]. That case involved a
Louisiana statute which provided that railroads must provide "equal but separate
" accommodations for white and colored passengers, and that, under penalty,
[*736] no member of either group should be permitted to use the accommodations
provided for the other. The Supreme Court upheld the statute, and laid down the
rule that the state had power to make regulations of this kind "in good faith
for the promotion of the public good." The court also said that the question
came down to the "reasonableness of the regulation." (Plessy v. Ferguson, supra,
p. 537.) [**32] By using that language, however, the Supreme Court left the
door open for a future, more enlightened generation. For, if the reasonableness
of the regulation is the only test, it may and will happen that a regulation was
reasonable from the point of view of the Legislature enacting it and the court
first passing on it. And yet, in the light of future developments, all the
reasonableness may have been lost and the regulation may have reduced itself to
a mere tool of oppression -- a hangover from quaint and superstitious days of
yore. There are enough statutes of this kind to fill [***53] periodically a
column in Collier's magazine. Most statutes thus rendered obsolete are not
especially vicious, and most of them are not enforced. It is safe to assume
that most of them would be struck down today if their constitutionality were
challenged, because what once may have appeared reasonable has become an
absurdity.
It is, of course, conceded that the state in the exercise of the police power
may legislate for the protection of the health and welfare of the people and in
so doing may infringe to some extent on the rights of individuals. But it is
not conceded that a state may legislate to the detriment of a class -- a
minority who are unable to protect themselves, when such legislation has no
valid purpose behind it. Nor may the police power be used as a guise to cloak
prejudice and intolerance. Prejudice and intolerance are the cancers of
civilization.
It is my position that the statutes now before us never were constitutional.
When first enacted, they violated the supreme law of the land as found in the
Declaration of Independence. It is further my position that the Fourteenth
Amendment to the Constitution of the United States invalidated the statutes here
involved. [***54] In a powerful dissent in Plessy v. Ferguson, supra, Justice
Harlan said, at page 559: "Our Constitution is color-blind, and neither knows
nor tolerates classes among citizens. In respect of civil rights, all citizens
are equal before the law. . . . The law regards man as man, and takes no
account of his surroundings or of his color when his civil rights as guaranteed
by the supreme [*737] law of the land are involved . . . the judgment this day
rendered will, in time, prove to be quite as pernicious as the decision made by
this tribunal in the Dred Scott case." This language needs no elaboration. The
time at which this judgment has become pernicious has arrived.
Even if I concede, which I do not, that the statutes here involved were at
any time reasonable, they are no longer reasonable and therefore no longer valid
today. The rule is that the constitutionality of a statute is not determined
once and for all by a decision upholding it. A change in conditions may
invalidate a statute which was reasonable and valid when enacted (Nashville, C.
& St. L. Ry. Co. v. Walters, 294 U.S. 405 [55 S.Ct. 486, 79 L.Ed. 949], 16
C.J.S. 150).
In this case, there [***55] are no decisions of either this court or the
Supreme Court of the United States which uphold the validity of a statute
forbidding or invalidating miscegenous marriages. As has been pointed out, even
if there were precedent, it would not necessarily be binding in this case. The
cases from other jurisdictions are, of course, not binding here. Under the test
laid down by the United States Supreme Court in Plessy v. Ferguson, supra, the
reasonableness of the regulation is therefore the decisive factor. And there
are decisions rendered in this state which definitely point the way as to what
is to be considered "reasonable" and in accord with the public policy of this
state.
This court has upheld the validity of miscegenous marriages, so-called, when
the marriage was entered into in a jurisdiction where no prohibition existed (
Pearson v. Pearson, 51 Cal. 120, 125). Under the well-settled rules of the law
of Conflict of Laws, this court could have denied validity to such marriages,
provided they were "odious" to its own internal policy. It did not do so, and
it has indicated in other holdings in which the problem of miscegenation was
collaterally involved that it does [***56] not consider the internal policy of
this state one which would lead it to refuse validity to such marriages (Rest.
of Conflicts of Laws, § 132 (c)).
[**33] Some of the statutes of the type here under attack have been upheld
as reasonably designed to prevent race rioting. The fact that this court grants
recognition to foreign miscegenous marriages, valid where contracted, is enough
to rebut that argument. Riots would either follow in both cases or in none.
One author sums up the problem by asking: "Does this not mean that the
miscegenation statute applies only to [*738] those who either have an
inadequate knowledge of the law and/or cannot afford the train fare to a state
where the attempted marriage would be valid?" (Tragen, 32 Cal.L.Rev. 269, 277.)
So far as the policy of this court is concerned, there is no basis for
upholding the statutes. But it is said that it is not the policy of the court
but that of the Legislature which should control. And there again, there are
strong indications of legislative trends and intentions which point the way. So
far as employment under public contracts is concerned, the laws of this state
forbid discrimination based on color (Lab. [***57] Code, § 1735). So far as
civil rights other than the right to marry are concerned, they are guaranteed by
Civil Code, section 52. The statutes forbidding miscegenous marriages here
under attack are further distinguished from statutes in other jurisdictions in
that they are entirely declaratory, while all the others carry with them
penalties for violation. This, too, would indicate an attitude of comparative
indifference on part of the Legislature, and the absence of any clearly
expressed public sentiment or policy.
The legislation here under attack is also sought to be sustained on the
ground that a legislative enactment duly made and based on "some evidence" is
presumptively valid. The general rule to that effect may be conceded. But it
does not apply to a case of this kind. In cases involving discrimination, the
rule is that laid down by the Supreme Court of the United States in Korematsu v.
United States, 323 U.S. 214, 216 [65 S.Ct. 193, 194, 89 L.Ed. 194, 199], where
the court speaking through Mr. Justice Black said: ". . . all legal restrictions
which curtail the civil rights of a single racial group are immediately suspect
. . . courts must subject them to the [***58] most rigid scrutiny. Pressing
public necessity may sometimes justify the existence of such restrictions;
racial antagonism never can." That suspicion which attaches to cases involving
discrimination is sufficient to overcome the presumption of validity and
constitutionality normally present when a statute is attacked as
unconstitutional.
Finally, the statute is sought to be upheld for "sociological" reasons. The
evidence presented to sustain the statute and that tending to show it up as
unreasonable falls into two groups. One is concerned with the social effect of
such marriages on the parties and those close to them. That social ostracism
may well result to the parties and perhaps their offspring, may be conceded.
But that is something [*739] which the state is powerless to control and which
it cannot prevent by legislation. It therefore furnishes no basis for
legislation, either. It is something resting with the parties themselves, for
them to decide. If they choose to face this possible prejudice and think that
their own pursuit of happiness is better subserved by entering into this
marriage with all its risks than by spending the rest of their lives without
each other's [***59] company and comfort, the state should not and cannot stop
them.
The other aspect of the evidence adduced is the medicoeugenic one. A great
deal has been written and said about the desirability or undesirability of
racial mixtures. The writers seem to be in such hopeless conflict that their
lack of bias may well be questioned. Suffice it to quote the following from
petitioner's brief:
"The blood-mixing however, with the lowering of the racial level caused by
it, is the sole cause of the dying-off of old cultures; for the people do not
perish by lost wars, but by the loss of that force of resistance which is
contained only in the pure blood.
"All that is not race in this world is trash."
"The result of any crossing, in brief, is always the following: (a) lowering
of the standard of the higher race, (b) physical [**34] and mental regression,
and, with it, the beginning of slowly but steadily progressive lingering
illness."
"Every race-crossing leads necessarily sooner or later to the decline of the
mixed product. The danger for the mixed product is abolished only in the moment
of the bastardization of the last higher, racially pure element."
". . . [There] is only one [***60] most sacred human right, and this right
is at the same time the most sacred obligation, namely, to see to it that the
blood is preserved pure, so that by its preservation of the best human material
a possibility is given for a more noble development of these human beings."
This quotation is from Hitler's "Mein Kampf" as published in translation in
New York in 1940. To bring into issue the correctness of the writings of a
madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with
an undeserved aura of respectability and authoritativeness. Let us not forget
that this was the man who plunged the world into a war in which, for the third
time, Americans fought, bled, and died for the truth of the proposition that all
men are created equal.
[*740] We may take judicial notice of the fact -- since it is a political
and historical fact -- that steady inroads have been made on the myth of racial
superiority and its outgrowths.
The rest of the world never has understood and never will understand why and
how a nation, built on the premise that all men are created equal, can three
times send the flower of its manhood to war for the truth of this premise and
still [***61] fail to carry it out within its own borders.
In 1682, Lord Nottingham said in the course of an opinion: "Pray let us so
resolve Cases here, that they may stand with the Reason of Mankind when they are
debated abroad. Shall that be Reason here that is not Reason in any part of the
World besides?" (Duke of Norfolk's Case, 3 Ch.Cas. 1, 33, 22 Eng.Repr. 931,
935.)
In my opinion, the statutes here involved violate the very premise on which
this country and its Constitution were built, the very ideas embodied in the
Declaration of Independence, the very issue over which the Revolutionary War,
the Civil War, and the Second World War were fought, and the spirit in which the
Constitution must be interpreted in order that the interpretations will appear
as "Reason in any part of the World besides."
EDMONDS, J. I agree with the conclusion that marriage is "something more
than a civil contract subject to regulation by the state; it is a fundamental
right of free men." Moreover, it is grounded in the fundamental principles of
Christianity. The right to marry, therefore, is protected by the constitutional
guarantee of religious freedom, and I place my concurrence in the judgment upon
a [***62] broader ground than that the challenged statutes are discriminatory
and irrational.
In Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213, 128
A.L.R. 1352] (1940), the United States Supreme Court, for the first time
expressly held that, through the due process clause of the Fourteenth Amendment,
a state statute may be declared invalid if it violates the specific guarantee of
religious freedom as stated in the First Amendment. The consequences of that
decision were forcefully stated by Mr. Justice Jackson in West Virginia State
Board of Education v. Barnette, 319 U.S. 624, 639 [63 S.Ct. 1178, 87 L.Ed. 1628,
147 A.L.R. 674], as follows: "In weighing arguments of the parties it is
important to distinguish between the due process clause of the Fourteenth
Amendment as an instrument of transmitting the principles of the First Amendment
and [*741] those cases in which it is applied for its own sake. The test of
legislation which collides with the Fourteenth Amendment, because it also
collides with the principles of the First, is much more definite than the test
when only the Fourteenth is involved. Much of the vagueness of the due process
clause [***63] disappears when the specific prohibitions of the First become
its standard. The right of a State to regulate, for example, a public utility
may well include, so far as the due process test is concerned, power to impose
all of the restrictions which a legislature may have a 'rational [**35] basis'
for adopting. But freedom of speech and of press, of assembly, and of worship
may not be infringed on such slender grounds. They are susceptible of
restriction only to prevent grave and immediate danger to interests which the
State may lawfully protect."
Reasonable classification, therefore, is not the test to be applied to a
statute which interferes with one of the fundamental liberties which are
protected by the First Amendment. The question is whether there is any "clear
and present danger" justifying such legislation (Craig v. Harney, 331 U.S. 367,
372 [67 S.Ct. 1249, 91 L.Ed. 1546]; Pennekamp v. Florida, 328 U.S. 331, 333 [66
S.Ct. 1029, 90 L.Ed. 1295]; Cantwell v. Connecticut, supra, at p. 311; Herndon
v. Lowry, 301 U.S. 242, 256 [57 S.Ct. 732, 81 L.Ed. 1066]; Schenck v. United
States, 249 U.S. 47, 52 [39 S.Ct. 247, 63 L.Ed. 470]), [***64] and the burden
of upholding the enactment is upon him who asserts that the acts which are
denounced do not infringe the freedom of the individual. (Busey v. District of
Columbia, 138 F.2d 592, 595.)
In the present case, the respondent does not claim that there is any clear
and present danger justifying the restrictions imposed by sections 60 and 69 of
the Civil Code. In 18 states, including New York, Illinois and Pennsylvania,
where about 10 per cent of the Negroes of the United States reside, there are no
such limitations. The population of California, to a large extent, is made up
of people who have come to it from other sections of the country, and if there
are undesirable consequences of interracial marriages, the challenged
legislation is an ineffective means of meeting the problem.
The decisions upholding state statutes prohibiting polygamy come within an
entirely different category. In Reynolds v. United States, 98 U.S. 145 [25
L.Ed. 244], marriage was said to be, "from its very nature a sacred obligation,"
but the conviction was sustained upon the ground that polygamy [*742] violates
"the principles upon which the government of the people, to a [***65] greater
or less extent, rests." Later, the court characterized the practice of polygamy
as being "contrary to the spirit of Christianity and of the civilization which
Christianity has produced in the Western world" (Church of Jesus Christ of L. D.
S. v. United States, 136 U.S. 1 [10 S.Ct. 792, 34 L.Ed. 478]; see Davis v.
Beason, 133 U.S. 333 [10 S.Ct. 299, 33 L.Ed. 637]). In effect, therefore, these
cases rest upon the principle that the conduct which the legislation was
designed to prevent constituted a clear and present danger to the well being of
the nation and, for that reason, the statute did not violate constitutional
guarantees.
DISSENTBY:
SHENK
DISSENT:
SHENK, J. I dissent.
The power of a state to regulate and control the basic social relationship of
marriage of its domiciliaries is here challenged and set at nought by a majority
order of this court arrived at not by a concurrence of reasons but by the end
result of four votes supported by divergent concepts not supported by authority
and in fact contrary to the decisions in this state and elsewhere.
It will be shown that such laws have been in effect in this country since
before our national independence and [***66] in this state since our first
legislative session. They have never been declared unconstitutional by any
court in the land although frequently they have been under attack. It is
difficult to see why such laws, valid when enacted and constitutionally
enforceable in this state for nearly 100 years and elsewhere for a much longer
period of time, are now unconstitutional under the same Constitution and with no
change in the factual situation. It will also be shown that they have a valid
legislative purpose even though they may not conform to the sociogenetic views
of some people. When that legislative purpose appears it is entirely beyond
judicial power, properly exercised, to nullify them.
This proceeding, therefore, involves a most important state function long
since recognized as such. Indeed as late as June 7, 1948, it has been
recognized by the Supreme Court of the United States "that the regulation of the
incidents of the marital relation involves the exercise by the states [**36]
of powers of the most vital importance." (Sherrer v. Sherrer, 334 U.S. 343 [68
S.Ct. 1087, 92 L.Ed. ].) Because of the far-reaching effect of an order of
this court in connection [***67] [*743] with this basic social relationship
the subject is worthy of somewhat extended discussion in support of our
statutes.
According to the verified petition for the writ of mandamus to compel the
issuance of a marriage license, Andrea D. Perez is a white person and Sylvester
S. Davis, Jr., is a Negro. Respondent county clerk rests his refusal to issue a
certificate and license to them on the ground that he is expressly prohibited
from so doing by the provisions of section 69 of the Civil Code, and upon the
further ground that their purported marriage in this state would be illegal and
void. (Civ. Code, § 60.)
Section 69 of the Civil Code contains the following proviso: ". . . no
license may be issued authorizing the marriage of a white person with a Negro,
mulatto, Mongolian or member of the Malay race." And complementary section 60 of
the same code reads: "All marriages of white persons with negroes, Mongolians,
members of the Malay race, or mulattoes are illegal and void."
Petitioners first contend that the above quoted statutory provisions deprive
them of the religious freedom guaranteed by the First and Fourteenth Amendments
of the federal Constitution and article [***68] I, section 4, of the
Constitution of this state. They allege that they are members and communicants
of the Roman Catholic Church; that it is the dogma, belief and teaching of the
church that a person of the white race and a person of the Negro race, if
otherwise eligible, are entitled to receive conjointly the sacrament of
matrimony and to intermarry; that the refusal of respondent to issue the license
denies to them the right to participate fully in the sacramental life of the
religion in which they believe, prohibits the free exercise by them of their
religion, and violates the guaranty of the free exercise and enjoyment of their
religious profession and worship. It is further alleged that section 69 of the
Civil Code is arbitrary, capricious and without reasonable relation to any
purpose within the competency of the state to effect.
Respondent on the other hand contends that the classifications contained in
sections 60 and 69 of the Civil Code do not transgress the petitioners' freedom
of religious worship; that such classifications are reasonably designed to
promote the general welfare and the interests of individual members of the races
mentioned, and that the regulation is [***69] therefore a proper exercise of
the police power of the state.
[*744] At the outset it may be noted that the petitioners' alleged right to
marry is not a part of their religion in the broad sense that it is a duty
enjoined by the church, or that penalty and punishment may in some manner ensue
(cf. Reynolds v. United States, 98 U.S. 145, 161 [25 L.Ed. 244]); but rather
that their marriage is permissive under the dogma, beliefs and teaching of the
church to which they claim membership and that the sacrament of matrimony will
be administered to them by a priest of the church if and when a license issues.
In this connection Father John La Farge, executive editor of "America," the
national Catholic weekly, in a book entitled "The Race Question and The Negro"
(Permissu Superiorum), (1943), states at page 196: "The Catholic Church does not
impose any impediment, diriment impediment, upon racial intermarriage, in spite
of the Church's great care to preserve in its utmost purity the integrity of the
marriage bond.
"On the other hand, where such intermarriages are prohibited by law, as they
are in several states of the Union, the Church bids her ministers to respect
these [***70] laws, and to do all that is in their power to dissuade persons
from entering into such unions."
The foregoing is mentioned to show that the attitude of the church has no
particular bearing on the asserted rights of the petitioners. Its attitude is
one of respect for local laws and an admonition to its clergy to advise against
their infringement.
Other considerations are presented in connection with petitioners'
contentions that their religious liberty is being infringed. The First
Amendment to the [**37] United States Constitution declares that Congress
shall make no law respecting an establishment of religion or prohibit the free
exercise thereof. The due process of law clause of the Fourteenth Amendment
embraces this fundamental concept of liberty as expressed in the First Amendment
and renders the states likewise incompetent to transgress it. However, this
religious liberty "embraces two concepts, -- freedom to believe and freedom to
act. The first is absolute but, in the nature of things, the second cannot be."
(Cantwell v. Connecticut, 310 U.S. 296, 303 [60 S.Ct. 900, 84 L.Ed. 1213, 128
A.L.R. 1352]; Murdock v. Pennsylvania, 319 U.S. 105, 110 [63 [***71] S.Ct. 870,
891, 87 L.Ed. 1292, 146 A.L.R. 81]; Gospel Army v. City of Los Angeles, 27
Cal.2d 232 [163 P.2d 704].) It has long [*745] been held that conduct,
consisting of practices and acts, remains subject to regulation for the health,
safety and general welfare. For example, a legislative determination that
monogamy is the "law of social life" has been held to prevail over the practice
of polygamy and bigamy as a duty required, encouraged or suffered by religion.
(Reynolds v. United States, supra, 98 U.S. 145; Davis v. Beason, 133 U.S. 333
[10 S.Ct. 299, 33 L.Ed. 637]; Cleveland v. United States, 329 U.S. 14 [67 S.Ct.
13, 91 L.Ed. 12].)
The reasoning behind this construction of the Constitution is obvious. The
determination of proper standards of behavior must be left to the Congress or to
the state legislatures in order that the well being of society as a whole may be
safeguarded or promoted. The protection of the individual's exercise of
religious worship afforded by our state Constitution, article I, section 4,
corresponds with that furnished by the federal guaranty as interpreted by the
United States Supreme Court. Our Constitution [***72] expressly provides that
the free exercise of religion guaranteed "shall not be so construed as to . . .
justify practices inconsistent with the peace or safety of this State."
Moreover, the right of the state to exercise extensive control over the
marriage contract has always been recognized. The institution of matrimony is
the foundation of society, and the community at large has an interest in the
maintenance of its integrity and purity. (Sharon v. Sharon, 75 Cal. 1 [16 P.
345]; 16 Cal.Jur. 909.) The Supreme Court of the United States has stated:
"Marriage, as creating the most important relation in life, as having more to do
with the morals and civilization of a people than any other institution, has
always been subject to the control of the legislature." (Maynard v. Hill, 125
U.S. 190, 205 [8 S.Ct. 723, 31 L.Ed. 654].) And: "Marriage, while from its very
nature a sacred obligation, is nevertheless, in most civilized nations, a civil
contract, and usually regulated by law. Upon it society may be said to be
built, and out of its fruits spring social relations and social obligations and
duties, with which government is necessarily required to deal." (Reynolds
[***73] v. United States, supra, 98 U.S. 145, 165.) In the language of the
Supreme Court of Missouri: "The right to regulate marriage, the age at which
persons may enter into that relation, the manner in which the rites may be
celebrated, and the persons between whom it may be contracted, has been assumed
and exercised by every [*746] civilized and Christian nation." (State v.
Jackson, 80 Mo. 175, 179 [50 Am.Rep. 499].) Further: "There can be no doubt as
to the power of every country to make laws regulating the marriage of its own
subjects; to declare who may marry, how they may marry, and what shall be the
legal consequences of their marrying. The right to regulate the institution of
marriage; to classify the parties and persons who may lawfully marry; to
dissolve the relation by divorce; and to impose such restraints upon the
relation as the laws of God, and the laws of propriety, morality and social
order demand, has been exercised by all civilized governments in all ages of the
world." (Kinney v. The Commonwealth, 30 Gratt. (Va.) 858, 862 [32 Am.Rep. 690].)
It is apparent from what has been said that if the law under attack bears a
substantial relationship [***74] to the health, safety, morals or some other
phase of the general welfare of the people of this state, it would not be
invalid because incidentally in conflict [**38] with the conduct and practice
of a particular religious group. Similarly if there is a rational basis for the
law, if it is reasonable, and all within a given class are treated alike, there
is no violation of the due process or equal protection clauses of the Fourteenth
Amendment to the United States Constitution. (See Missouri ex rel. Gaines v.
Canada, 305 U.S. 337 [59 S.Ct. 232, 83 L.Ed. 208]; Buck v. Bell, 274 U.S. 200
[47 S.Ct. 584, 71 L.Ed. 1000]; Radice v. New York, 264 U.S. 292 [44 S.Ct. 325,
68 L.Ed. 690]; Patsone v. Pennsylvania, 232 U.S. 138 [34 S.Ct. 281, 58 L.Ed.
539]; Noble State Bank v. Haskell, 219 U.S. 104 [31 S.Ct. 186, 55 L.Ed. 112].)
The prohibition of miscegenetic marriage is not a recent innovation in this
state nor is such a law by any means unique among the states. A short history
of miscegenetic marriage laws in this state and elsewhere will contribute to a
better understanding of the problem at hand. A law declaring marriages between
white [***75] persons and Negroes to be illegal and void was enacted at the
first session of our Legislature. (Stats. 1850, ch. 140, p. 424.) Section 60 of
the Civil Code declaring certain marriages invalid has existed since the advent
of our codes in 1872, at which time it extended only to intermarriage between
white persons and Negroes or mulattoes. It succeeded the prohibition against
such marriages found in the above-mentioned statutes of 1850. Section 60 was
amended in 1905 to include marriages between white persons and Mongolians
(Stats. 1905, p. 554). The provisions of the law here attacked [*747] have
remained unchallenged for nearly one hundred years and have been unchanged so
far as the marriage of whites with Negroes is concerned. To indicate that the
subject matter is not merely of ancient legislative consideration it should be
noted that in 1933 the District Court of Appeal decided that sections 60 and 69
did not prohibit the marriage in this state of a white woman and a Filipino -- a
member of the Malay race (Roldan v. Los Angeles County, 129 Cal.App. 267 [18
P.2d 706]). That case was decided on January 27, 1933. Without delay the
Legislature amended both sections [***76] to extend the prohibition to
marriages also as between white persons and members of the Malay race. The
amendatory measures passed both houses of the Legislature and were signed by the
governor on April 20th of the same year (Stats. 1933, p. 561) thus rendering
nugatory the decision in the Roldan case -- which was the obvious purpose of the
legislation. As above indicated the present concern with the legislation is
only as it affects marriages between white persons and Negroes.
Twenty-nine states in addition to California have similar laws. (Rhodes,
"Annullment of Marriage" (1945); Charles S. Manguin, Jr., "The Legal Status of
the Negro" (1940).) Six of these states have regarded the matter to be of such
importance that they have by constitutional enactments prohibited their
legislatures from passing any law legalizing marriage between white persons and
Negroes or mulattoes. Several states refuse to recognize such marriages even if
performed where valid (see Charles S. Manguin, Jr., "The Legal Status of the
Negro" (1940); In re Takahashi's Estate, 113 Mont. 490 [129 P.2d 217]),
particularly if an attempt has been made by residents of a state to evade the
law (Eggers [***77] v. Olson, 104 Okla. 297 [231 P. 483]; State v. Kennedy, 76
N.C. 251 [22 Am.Rep. 683]). The infrequency of such unions is perhaps the chief
reason why prohibitive laws are not found in the remaining states. (Reuter,
"Race Mixture" (1931), p. 39; Rhodes, "Annullment of Marriage" (1945), pp. 101,
102.)
The ban on mixed marriages in this country is traceable from the early
colonial period. For example, Maryland forbade the practice of marriage unions
between Negroes or Indians and white persons as early as 1663. Laws forbidding
marriages between Negroes and whites were passed in Massachusetts in 1705, in
Delaware in 1721, in Virginia in 1726, [*748] and in North Carolina in 1741.
In 1724, it was decreed in France that no Negro-white marriages were to take
place in Louisiana. Most of the remaining states enacted similar legislation in
the period between the formation [**39] of the United States and the Civil
War.
Research has not disclosed a single case where a miscegenetic marriage law
has been declared invalid. As stated in Estate of Monks, 48 Cal.App.2d 603, 612
[120 P.2d 167]: "Many states have statutes prohibiting such alliances, and we
have had [***78] presented no instance of successful constitutional attacks
upon them or any of them." Not only the state courts but the federal courts as
well have uniformly sustained the validity of such laws. One of the most recent
decisions upon the subject is that of the United States Circuit Court of Appeals
for the 10th Circuit in the case of Stevens v. United States, 146 F.2d 120, 123,
decided December 18, 1944. The court there said: "Section 12 [Title 43,
Oklahoma St. 1941], making unlawful marriages between persons of African descent
and persons of other races or descents is challenged on the ground that it
violates the Fourteenth Amendment. Marriage is a consentient covenant. It is a
contract in the sense that it is entered into by agreement of the parties. But
it is more than a civil contract between them, subject to their will and
pleasure in respect of effects, continuance, or dissolution. It is a domestic
relation having to do with the morals and civilization of a people. It is an
essential institution in every well organized society. It affects in a vital
manner public welfare, and its control and regulation is a matter of domestic
concern within each state. A state [***79] has power to prescribe by law the
age at which persons may enter into marriage, the procedure essential to
constitute a valid marriage, the duties and obligations which it creates, and
its effect upon the property rights of both parties. Maynard v. Hill, 125 U.S.
190 [8 S.Ct. 723, 31 L.Ed. 654]. And within the range of permissible adoption of
policies deemed to be promotive of the welfare of society as well as the
individual members thereof, a state is empowered to forbid marriages between
persons of African descent and persons of other races or descents. Such a
statute does not contravene the Fourteenth Amendment."
In Pace v. Alabama, 106 U.S. 583 [1 S.Ct. 637, 27 L.Ed. 207], the United
States Supreme Court had before it a statute of the State of Alabama declaring
that "if any white person and any negro . . . intermarry or live in adultery or
[*749] fornication with each other, each of them must, on conviction, be
imprisoned in the penitentiary or sentenced to hard labor for the county for not
less than two nor more than seven years." A Negro man and white woman had been
convicted in the courts of Alabama of fornication. Upon writ of error to the
United [***80] States Supreme Court it was contended that the statute was in
conflict with the equal protection of law clause of the United States
Constitution because greater punishment was provided than by another law
relating to the same offense committed by peoples of the same race. The Supreme
Court of the United States in upholding the statute and affirming the judgment
of conviction stated: "The defect in the argument of counsel consists in his
assumption that any discrimination is made by the laws of Alabama in the
punishment provided for the offense for which the plaintiff in error was
indicted when committed by a person of the African race and when committed by a
white person. The two sections of the code cited are entirely consistent. The
one prescribes, generally, a punishment for an offense committed between persons
of different sexes; the other prescribes a punishment for an offense which can
only be committed where the two sexes are of different races. . . . Whatever
discrimination is made in the punishment prescribed in the two sections is
directed against the offense designated and not against the person of any
particular color or race. The punishment of each offending person, [***81]
whether white or black, is the same."
In State v. Tutty, 41 F. 753 [7 L.R.A. 50], where a statute was held not in
deprivation of rights under the federal Constitution, it was said: "The court
will not discuss the argument of defendants' counsel to the effect that the
intermarriages of whites and blacks do not constitute an evil or an injury
against which the state should protect itself. This is a question which has
been, as we have seen, the subject of repeated judicial deliverances; [**40]
but it is more properly, in the opinion of this court, within the range of
legislative duty. It is enough, for the purpose of its duty, for the court to
ascertain that by a legitimate and settled policy the state of Georgia has
declared such marriages unlawful and void; for while, in this country, the home
life of the people, their decency and their morality, are the bases of that vast
social structure of liberty, and obedience to law, which excites the patriotic
pride of our countrymen and the admiration of the [*750] world, and while
these attributes of our citizenship should be cherished and protected by all in
authority, and the creatures who defy them should be condemned [***82] by all,
the courts, in their judicial functions, are rarely concerned with the policy of
the laws which are made to protect the community. The policy of the state upon
this subject has been declared, as we have seen, by its supreme court as well as
by its statutes, and it is enough to say that this court is unable to discover
anything in that policy with which the federal courts have the right or the
power to interfere."
In Scott v. State of Georgia, 39 Ga. 321, the Supreme Court of Georgia said
of a provision of the state Constitution prohibiting marriages between whites
and Negroes, and declaring all such marriages void: "With the policy of this law
we have nothing to do. It is our duty to declare what the law is, not to make
law. For myself, however, I do not hesitate to say that it was dictated by wise
statesmanship, and has a broad and solid foundation in enlightened policy,
sustained by sound reason and common sense. The amalgamation of the races is
not only unnatural, but is always productive of deplorable results. . . . The
power of the Legislature over the subject matter when the Code was adopted, will
not, I suppose, be questioned. The Legislature certainly [***83] had as much
right to regulate the marriage relation by prohibiting it between persons of
different races as they had to prohibit it between persons within the Levitical
degrees, or between idiots. Both are necessary and proper regulations. And the
regulation now under consideration is equally so."
In State v. Jackson, supra (80 Mo. 175), the Supreme Court of Missouri
reversed a judgment sustaining a demurrer to an indictment charging a white
woman with violation of a statute making marriages between white persons and
Negroes a felony. The court said that the law might "interfere with the tastes
of negroes who want to marry whites, or whites who wish to intermarry with
negroes, but the State has the same right to regulate marriage in this respect
that it has to forbid the intermarriage of cousins and other blood relations.
If the State desires to preserve the purity of the African blood by prohibiting
intermarriage between whites and blacks, we know of no power on earth to prevent
such legislation. It is a matter of purely domestic concern. The 14th
amendment to the Constitution of the United States . . . has no such scope as
seems to have been accorded it by the circuit [***84] court. . . . All of one
's rights as a citizen of the United States [*751] will be found guaranteed by
the Constitution of the United States. If any provision of that instrument
confers upon a citizen the right to marry any one who is willing to wed him, our
attention has not been called to it. If such be one of the rights attached to
American citizenship all our marriage acts forbidding intermarriage between
persons within certain degrees of consanguinity are void . . . [The] condition
of a community, moral, mental and physical, which would tolerate indiscriminate
intermarriage for several generations, would demonstrate the wisdom of laws
which regulate marriage and forbid the intermarriage of those nearly related in
blood."
The Supreme Court of Oklahoma, in Eggers v. Olson, supra (104 Okla. 297 [231
P. 483, 486]), said: "The inhibition, like the incestuous marriage, is in the
blood, and the reason for it is stronger still." The court quoted from 18
R.C.L., section 31, p. 409, in part, as follows: "'Civilized society has the
power of self preservation, and, marriage being the foundation of such society,
most of the states in which the negro forms an element of [***85] any note have
enacted laws inhibiting intermarriage between the white and black races . . .
[**41] Statutes forbidding intermarriage by the white and black races were
without doubt dictated by wise statesmanship, and have a broad and solid
foundation in enlightened policy, sustained by sound reason and common sense.
The amalgamation of the races is not only unnatural, but is always productive of
deplorable results. The purity of the public morals, the moral and physical
development of both races, and the highest advancement of civilization, under
which the two races must work out and accomplish their destiny, all require that
they should be kept distinctly separate, and that connections and alliances so
unnatural should be prohibited by positive law and subject to no evasion.'"
The miscegenation law of our neighboring state of Oregon (Ore. L., § 2163)
was held valid by the Supreme Court of that state in In re Paquet's Estate, 101
Ore. 393 [200 P. 911]. In so holding the court directed attention to 8 R.C.L.
section 381 where it is said: "Miscegenation is a purely statutory offense,
consisting in the intermarriage of a person of the white race with a negro or
colored person. [***86] Most states in which the negro or colored people form
an appreciable element have enacted these laws inhibiting intermarrying between
the white and black races, and the offense thereby created is usually of the
grade of a felony. There can be no doubt as [*752] to the power of every
country to make laws regulating the marriage of its own subjects; to declare who
may marry, how they may marry, and what shall be the legal consequences of their
marrying; and accordingly, although miscegenation statutes have been
persistently attacked on the ground that they are violative of the United States
Constitution, they have been universally upheld as a proper exercise of the
power of each state to control its own citizens." (See also 36 Am.Jur.,
Miscegenation, § 3.)
The foregoing views are representative of the general tenor of judicial
opinion which has been expressed elsewhere. Without further amplification
reference may be made to cases in Arizona (State v. Pass (1942), 59 Ariz. 16
[121 P.2d 882]; Kirby v. Kirby (1922), 24 Ariz. 9 [206 P. 405]), in Colorado (
Jackson v. City and County of Denver (1942), 109 Colo. 196 [124 P.2d 240]), in
Montana (In re [***87] Takahashi's Estate, supra, (1942), 113 Mont. 490 [129
P.2d 217] -- Japanese-White), in Alabama (Green v. State (1877), 58 Ala. 190 [29
Am.Rep. 739]), in Virginia (Kinney v. The Commonwealth, supra (1878), 30 Gratt.
858 [32 Am.Rep. 690]), in Indiana (State v. Gibson (1871), 36 Ind. 389 [10
Am.Rep. 42]), in Arkansas (Dodson v. State (1895), 61 Ark. 57 [31 S.W. 977]), in
Texas (Frasher v. State (1877), 3 Tex.App. 263 [30 Am.Rep. 131]), in Tennessee (
Lonas v. State (1871), 50 Tenn. (3 Heisk.) 287), in Pennsylvania (Philadelphia &
West Chester R. R. Co. v. Miles, 2 Am.Law Rev. 358).
The foregoing authorities form an unbroken line of judicial support, both
state and federal, for the validity of our own legislation, and there is none to
the contrary. Those authorities appear to have passed upon all attacks on such
legislation on constitutional grounds, but notwithstanding their unanimity it is
declared by some of the majority that there is a sort of racial discrimination
which solely formed the basis for the enactments and by another of the majority
that the constitutional guarantee of freedom of religion has been infringed.
[***88] However, it is the law that if there is some factual background for the
legislation, that circumstance forms an appropriate reason for the enactments,
and it is then proper to consider the rules of law which govern the courts in
that connection.
In passing upon the validity of any statutory enactment the power of the
courts is not unlimited. It is circumscribed by well recognized rules, some of
which as applicable to the [*753] case are: that all presumptions and
intendments are in favor of the constitutionality of a statute; that all doubts
are to be resolved in favor of and not against the validity of a statute; that
before an act of a coordinate branch of our government can be declared invalid
by the courts for the reason that it is in conflict with the Constitution, such
conflict must be clear, positive and unquestionable; that in the case of any
fair, reasonable doubt of its constitutionality the statute should be upheld,
and the doubt be resolved in favor of the expressed will of the [**42]
Legislature; that it is also to be presumed that the Legislature acted with
integrity and with a purpose to keep within the restrictions and limitations
laid down in the fundamental [***89] law; that when the constitutionality of a
statute depends on the existence of some fact or state of facts, the
determination thereof is primarily for the Legislature and the courts will
acquiesce therein unless the contrary clearly appears; that the enactment of the
statute implies, and the conclusive presumption is, that the Governor and the
members of the Legislature have performed their duty, and have ascertained the
existence of facts justifying or requiring the legislation; that this is true
even in the absence of an express finding of those facts embodied in the act;
and that the courts may not question or review the legislative determination of
the facts. (5 Cal.Jur., p. 628 et seq., and the many cases there cited.) These
presumptions apply with particular emphasis to statutes passed in the exercise
of the police power (11 Am.Jur., p. 1088, and many cases cited).
A recent statement by this court recognizes the general rule. In In re
Porterfield, 28 Cal.2d 91, 103 [168 P.2d 706, 167 A.L.R. 675], with supporting
authorities, it is said: "Constitutionality of purpose and application is
generally to be presumed. It has often been said that it is only when it
clearly appears [***90] that an ordinance or statute passes definitely beyond
the limits which bound the police power and infringes upon rights secured by the
fundamental law, that it should be declared void."
Pertinent to the immediate question is Galeener v. Honeycutt, 173 Cal. 100,
104 [159 P. 595]. This court there approved the doctrine announced in earlier
cases. It was said that it had never since been questioned that, when the right
to enact a law depends upon the existence of a fact, the passage of the act
implies, and the conclusive presumption is, that the [*754] existence of the
fact has been ascertained by the legislative body. (See also In re Spencer, 149
Cal. 396, 400 [86 P. 896, 117 Am.St.Rep. 137, 9 Ann.Cas. 1105]; Martin v.
Superior Court, 194 Cal. 93, 101 [227 P. 762]; Pacific Gas & Elec. Co. v. Moore,
37 Cal.App.2d 91, 95 [98 P.2d 819].)
It is not within the province of the courts to go behind the findings of the
Legislature and determine that conditions did not exist which gave rise to and
justified the enactment. Only when, beyond reasonable doubt, all rational men
would agree that the factual background did not warrant the enactment of a
[***91] statute which was ostensibly designed to preserve the general welfare
can we say that a statute is arbitrary and capricious. (In re Miller, 162 Cal.
687 [124 P. 427]; People v. George, 42 Cal.App.2d 568 [109 P.2d 404].) It is a
well settled rule of constitutional exposition, that if a statute may or may not
be, according to the circumstances, within the limits of legislative authority,
the existence of the circumstances necessary to support it must be presumed. (
Sweet v. Rechel, 159 U.S. 380, 393 [16 S.Ct. 43, 40 L.Ed. 188].) When a question
of fact is debated and debatable, and the extent to which a special
constitutional limitation should be applied is under consideration, the
conclusion may properly be influenced by a widespread and long continued belief
concerning it, and this is within judicial cognizance. (Muller v. Oregon, 208
U.S. 412, 421 [28 S.Ct. 324, 52 L.Ed. 551].)
The Legislature is, in the first instance, the judge of what is necessary for
the public welfare. Earnest conflict of opinion makes it especially a question
for the Legislature and not for the courts. (Erie R. R. Co. v. Williams, 233
U.S. 685, 699, 701 [34 S.Ct. [***92] 761, 58 L.Ed. 1155], citing other cases.)
"It is established that a distinction in legislation is not arbitrary, if any
state of facts reasonably can be conceived that would sustain it, and the
existence of that state of facts at the time the law was enacted must be
assumed. . . . It makes no difference that the facts may be disputed or their
effect opposed by argument and opinion of serious strength. It is not within
the competency of the courts to arbitrate in such contrariety. . . . And it is
not required that we . . . be convinced of the wisdom of the legislation." (Rast
v. Van Deman & Lewis Co., 240 U.S. 342, 357, 365-366 [36 S.Ct. 370, 60 L.Ed.
679], citing cases.) "We need not labor the point, long settled, that where
legislative action is [**43] within the scope of the police power, fairly
debatable questions as to its reasonableness, wisdom and propriety are not for
the determination of the courts, but [*755] for that of the legislative body
on which rests the duty and responsibility of decision. . . . We may not test
in the balances of judicial review the weight and sufficiency of the facts to
sustain the conclusion of the legislative body . . ." [***93] (Standard Oil
Co. v. Marysville, 279 U.S. 582, 584, 586 [49 S.Ct. 430, 73 L.Ed. 856], and
cited cases.) Underlying questions of fact which may condition the
constitutionality of legislation carry with them the presumption of
constitutionality in the absence of some factual foundation of record for
overthrowing the statute. (O'Gorman & Young v. Hartford F. Ins. Co., 282 U.S.
251, 257-258 [51 S.Ct. 130, 75 L.Ed. 324].)
Again the United States Supreme Court has reiterated in Borden's F. P. Co. v.
Baldwin, 293 U.S. 194, at page 209 [ 55 S.Ct. 187, 79 L.Ed. 281]: "When the
classification made by the legislature is called in question, if any state of
facts reasonably can be conceived that would sustain it, there is a presumption
of the existence of that state of facts, and one who assails the classification
must carry the burden of showing by a resort to common knowledge or other
matters which may be judicially noticed, or to other legitimate proof, that the
action is arbitrary. . . . The principle that the State has a broad discretion
in classification, in the exercise of its power of regulation, is constantly
recognized by this Court." (People [***94] v. Western Fruit Growers, 22 Cal.2d
494, 506-508 [140 P.2d 13]; Western U. Tel. Co. v. Hopkins, 160 Cal. 106, 122
[116 P. 557]; Postal Tel. Cable Co. v. County of Los Angeles, 160 Cal. 129 [116
P. 566].) Whether the legislation is wise or unwise as a matter of policy is a
question with which the courts are not concerned. (Home Bldg. & L. Assn. v.
Blaisdell, 290 U.S. 398, 447-448 [54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481].)
Courts are neither peculiarly qualified nor organized to determine the
underlying questions of fact with reference to which the validity of the
legislation must be determined. Differing ideas of public policy do not
properly concern them. The courts have no power to determine the merits of
conflicting theories, to conduct an investigation of facts bearing upon
questions of public policy or expediency, or to sustain or frustrate the
legislation according to whether they happen to approve or disapprove the
legislative determination of such questions of fact. (Norman v. Baltimore & O.
R. Co., 294 U.S. 240 [55 S.Ct. 407, 79 L.Ed. 885, 95 A.L.R. 1352], affirming 265
N.Y. 37 [191 N.E. 726, 92 A.L.R. 1523]; 11 Am.Jur. [***95] pp. 823, 824, and
cases cited; see article, "Judicial [*756] Determination of Questions of Fact
Affecting the Constitutional Validity of Legislative Action," 38 Harv.L.Rev. 6.)
The fact that the finding of the Legislature is in favor of the truth of one
side of a matter as to which there is still room for difference of opinion is
not material. What the people's legislative representatives believe to be for
the public good must be accepted as tending to promote the public welfare. It
has been said that any other basis would conflict with the spirit of the
Constitution and would sanction measures opposed to a republican form of
government. (Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280 [34 S.Ct. 829,
58 L.Ed. 1312]; Viemeister v. White, 179 N.Y. 235 [72 N.E. 97, 103 Am.St.Rep.
859, 1 Ann.Cas. 334, 70 L.R.A. 796]; State ex rel. Sullivan v. Dammann, 227 Wis.
72 [277 N.W. 687]; Stettler v. O'Hara, 69 Ore. 519 [139 P. 743, Ann.Cas. 1916A
217, L.R.A. 1917C 944], affirmed 243 U.S. 629 [37 S.Ct. 475, 61 L.Ed. 937].)
Text and authorities which constitute the factual basis for the legislative
finding involved in the statute here in [***96] question indicate only that
there is a difference of opinion as to the wisdom of the policy underlying the
enactments.
Some of the factual considerations which the Legislature could have taken
into consideration are disclosed by an examination of the sources of information
on the biological and sociological phases of the problem and which may be said
to form a background for the legislation and support the reasoning found in the
decisions of the courts upholding similar statutes. A reference to a few of
those sources of information will suffice.
[**44] On the biological phase there is authority for the conclusion that
the crossing of the primary races leads gradually to retrogression and to
eventual extinction of the resultant type unless it is fortified by reunion with
the parent stock. (W. A. Dixon, M. D., Journal of American Medical Association,
vol. 20, p. 1 (1893); Frederick L. Hoffman, statistician, Prudential Life
Insurance Co. of America, American Economics Association, vol. 11 (1896) "Race
Traits and Tendencies of the American Negro"; C. E. Woodruff, "The Expansion of
Races" (1909).) In September, 1927, in an article entitled, "Race Mixture,"
which appeared in "Science," [***97] volume 66, page X, Dr. Charles B.
Davenport of the Carnegie Foundation of Washington, Department of Experimental
Evolution, said: "In the absence of any uniform rule as to consequences of race
crosses, it is well to discourage it except in those cases where, as [*757] in
the Hawaiian-Chinese crosses, it clearly produces superior progeny," and that
the Negro-white and Filipino-European crosses do not seem to fall within the
exception.
In volume 19 of the Encyclopedia Americana (1924), page 275, it is said: "The
results of racial intermarriage have been exceedingly variable. Sometimes it
has produced a better race. This is the case when the crossing has been between
different but closely allied stocks. . . . Prof. U. G. Weatherly writes: 'It
is an unquestionable fact that the yellow, as well as the negroid peoples
possess many desirable qualities in which the whites are deficient. From this
it has been argued that it would be advantageous if all races were blended into
a universal type embodying the excellencies of each. But scientific breeders
have long ago demonstrated that the most desirable results are secured by
specializing types rather than by merging them.
"'The [***98] color line is evidence of an attempt, based on instinctive
choice, to preserve those distinctive values which a racial group has come to
regard as of the highest moment to itself.'"
In an address before the Commonwealth Club of California on July 9, 1948, Mr.
William Gemmill, South African delegate to the International Labor Organization
and one well acquainted with social conditions and sociological manifestations
in that continent, made the statement that in South Africa, where the European
population is greatly outnumbered by the natives, both classes are adamant in
opposition to intermarriage and that the free mixing of all the races could in
fact only lower the general level.
A collection of data and references on the result of miscegenation is found
in "The Menace of Color" (1925) by J. W. Gregory (F.R.S., D.Sc., Professor of
Geology in the University of Glasgow). On page 227 he says that the
intermixtures which have been beneficial to the progress of mankind have been
between nearly related peoples and that the results of a mixture of widely
divergent stock serve to warn against the miscegenation of distinct races. Dr.
J. A. Mjoen of the Winderen Laboratory, Norway, is credited [***99] by
Professor Gregory (at p. 229) with the conclusion from special studies that the
evidence is sufficient to call for immediate action against the intermarriage of
widely distinct races. Gregory states that where two such races are in contact
the inferior qualities are not bred out, but may be emphasized in the progeny, a
principle widely expressed in modern eugenic literature. Similar views
asserting [*758] the unfortunate results of crossings between dissimilar
races, including the American Negro-white, are ascribed by the author to Prof.
H. Lundborg (1922); E. D. Cope, American geologist; Elwang (1904); Prof. N. S.
Shaler (1904); Emile Gaboriau and Gustav Le Bon, France; F. L. Hoffman of the
Prudential Insurance Co. of America (1923); Prof. A. E. Jenks; and Herbert
Spencer (1892).
In March, 1926, the Carnegie Institution of Washington, D. C., accepted a
gift from one who expressed his interest in the problem of race crossing with
special reference to its significance for the future of any country containing a
mixed population. The work was undertaken by the Department of Genetics,
Carnegie Institution. An advisory committee was organized consisting of W. V.
Bingham, Charles [***100] B. Davenport, [**45] E. L. Thorndike, and Clark
Wissler. Mr. Morris Steggerda was selected as field investigator. Mr.
Steggerda had had excellent training in genetics and psychology, and had shown a
marked fitness for the study and analysis of the individual. The main project
was carried out in Jamaica, B.W.I., by studying in detail and comparatively, 100
each of adults of full-blooded Negroes (Blacks), Europeans (Whites), and
White-Black mixtures of all degrees (Brown). Half of the hundred were of each
sex. In addition to the main project some 1,200 children of school and
preschool age were observed and measured. Finally in 1929, an extensive report
was published by the Carnegie Institution, in book form entitled "Race Crossing
in Jamaica," by B. C. Davenport and Morris Steggerda, in collaboration with
others. The results of their investigation indicated that the crossing of
distinct races is biologically undesirable and should be discouraged.
W. E. Castle, Bussey Institution, Harvard University, in an article entitled
"Biological and Social Consequences of Race Crossing," printed in volume 9,
American Journal of Physical Anthropology (April, 1926), states on page 152:
[***101] "If all inheritance of human traits were simple Mendelian inheritance,
and natural selections were unlimited in its action among human populations,
then unrestricted racial intercrossing might be recommended. But in the light
of our present knowledge, few would recommend it. For, in the first place, much
that is best in human existence is a matter of social inheritance, not of
biological inheritance. Race crossings disturb social inheritance. That is one
of its worst features." This then leads to a consideration of the sociological
phase.
[*759] The writings of Father John La Farge, S. J., are typical of many who
have considered the subject of race-crosses from a sociological standpoint.
Reference has been made to his work "The Race Question and the Negro" (1943).
Under the heading "The Moral Aspect," he writes: "[There] are grave reasons
against any general practice of intermarriage between the members of different
racial groups. These reasons, where clearly verified, amount to a moral
prohibition of such a practice.
"These arise from the great difference of condition which is usually
experienced by the members of the respective groups. It is not merely a
difference [***102] of poverty or riches, of lesser or greater political power,
but the fact that identification with the given group is far-reaching and
affects innumerable aspects of ordinary daily life. . . .
"Where marriage is contracted by entire solitaries, such an interracial
tension is more easily borne, but few persons matrimonially inclined are
solitaries. They bring with them into the orbit of married life their parents
and brothers and sisters and uncles and aunts and the entire social circle in
which they revolve. All of these are affected by the social tension, which in
turn reacts upon the peace and unity of the marriage bond.
"When children enter the scene the difficulty is further complicated unless a
complete and entirely self-sacrificing understanding has been reached
beforehand. And even then the social effects may be beyond their control. . . .
In point of facts as the Negro group becomes culturally advanced, there
appears no corresponding tendency to seek intermarriage with other races."
The foregoing excerpts from scientific articles and legal authorities make it
clear that there is not only some but a great deal of evidence to support the
legislative determination (last [***103] made by our Legislature in 1933) that
intermarriage between Negroes and white persons is incompatible with the general
welfare and therefore a proper subject for regulation under the police power.
There may be some who maintain that there does not exist adequate data on a
sufficiently large scale to enable a decision to be made as to the effects of
the original admixture of white and Negro blood. However, legislators are not
required to wait upon the completion of scientific research to determine whether
the underlying facts carry sufficient weight to more fully sustain the
regulation.
[*760] A review of the subject indicates that the statutory classification
was determined [**46] by the Legislature in the light of all the circumstances
and requirements (see also California Physicians' Service v. Garrison, 28 Cal.2d
790, 802 [172 P.2d 4, 167 A.L.R. 306]; Livingston v. Robinson, 10 Cal.2d 730 [76
P.2d 1192]); that under our tripartite system of government this court may not
substitute its judgment for that of the Legislature as to the necessity for the
enactment where it was, as here, based upon existing conditions and scientific
data and belief; that [***104] even in the field of fundamental rights it has
always been recognized that where the Legislature has appraised a particular
situation and found a specific condition sufficiently important to justify
regulation, such determination is given great weight when the law is challenged
on constitutional grounds.
Those favoring present day amalgamation of these distinct races irrespective
of scientific data of a cautionary nature based upon the experience of others,
or who feel that a supposed infrequency of interracial unions will minimize
undesirable consequences to the point that would justify lifting the prohibition
upon such unions, should direct their efforts to the Legislature in order to
effect the change in state policy which they espouse -- as was done in
Massachusetts in 1843, Kansas in 1859, New Mexico in 1866, Washington in 1868,
Rhode Island in 1881, Minnesota and Michigan in 1883, and Ohio in 1887.
The contention is also advanced that the statute must fall before the equal
protection clause of the Fourteenth Amendment because of lack of a sufficient
showing of clear and present danger arising out of an emergency. The cases
relied upon are Oyama v. California, 332 U.S. [***105] 633 [68 S.Ct. 269, 92
L.Ed. ]; Sipuel v. Board of Regents, 332 U.S. 631 [68 S.Ct. 299, 92 L.Ed. ];
Railway Mail Assn. v. Corsi, 326 U.S. 88 [65 S.Ct. 1483, 89 L.Ed. 2072];
Hirabayashi v. United States, 320 U.S. 81 [63 S.Ct. 1375, 87 L.Ed. 1774];
Missouri ex rel. Gaines v. Canada, supra, 305 U.S. 337; Williams v.
International etc. of Boilermakers, 27 Cal.2d 586 [165 P.2d 903]; and James v.
Marinship Corp., 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900] (see also Shelley
v. Kraemer and McGhee v. Sipes, 334 U.S. 1 [68 S.Ct. 836, 92 L.Ed. ]; Hurd v.
Hodge, 334 U.S. 24 [68 S.Ct. 847, 92 L.Ed. ]). These cases, in general, hold
that legislation discriminating against particular persons, or groups of persons
because of race, must have exceptional circumstances or some [*761] compelling
necessity as the source of enactment. These cases have been analyzed. They
have widely divergent factual backgrounds and are not controlling. Here there
is no lack of equal treatment. Sections 60 and 69 of our Civil Code do not
discriminate against persons of either the white or Negro races. ( [***106]
Pace v. Alabama, supra, 106 U.S. 583; Jackson v. City and County of Denver,
supra, 109 Colo. 196 [124 P.2d 240]; In re Paquet's Estate, supra, 101 Ore. 393
[200 P. 911].) Each petitioner has the right and the privilege of marrying
within his or her own group. The regulation does not rest solely upon a
difference in race. The question is not merely one of difference, nor of
superiority or inferiority, but of consequence and result. The underlying
factors that constitute justification for laws against miscegenation closely
parallel those which sustain the validity of prohibitions against incest and
incestuous marriages (Pen. Code, § 285; Civ. Code, § 59; 42 C.J.S., Incest, §
1), and bigamy (Pen. Code, § 281; Civ. Code, § 61; Davis v. Beason, supra, 133
U.S. 333; Reynolds v. United States, supra, 98 U.S. 145). Moreover the argument
based upon equal protection does not take into proper account the extensive
control the state has always exercised over the marriage contract, nor of the
further fact that at the very time the Constitution of the United States was
being formulated miscegenation was considered inimical to the public good and
was [***107] frowned upon by the colonies, and continued to be so regarded and
prohibited in states having any substantial admixture of population at the time
the Fourteenth Amendment was adopted. In view of this fact, and the unanimity
of judicial decision sustaining such statutes, it seems impossible to believe
that any constitutional guaranty was intended to prohibit this legislation.
It has been suggested that sections 60 and 69 of the Civil Code are
unconstitutional [**47] because not sufficiently comprehensive. More
specifically it is said that such legislation does not preclude the possibility
of progeny as a result of purported marriages entered into by persons who have
concealed or failed to disclose their racial origin, nor the possibility of
illegitimate progeny of mixed matings or of issue from such racially mixed
marriages validly contracted in other states by residents of this state.
However it is definitely established that the states, in seeking a remedy, are
not required to extend regulation to all cases which might possibly be reached.
(Radice v. New York, supra, 264 U.S. 292.) "They [*762] may mark and set apart
the classes and types of problems according [***108] to the needs and as
dictated or suggested by experience." (Skinner v. Oklahoma, 316 U.S. 535, 540
[62 S.Ct. 1110, 86 L.Ed. 1655]; Bryant v. Zimmerman, 278 U.S. 63 [49 S.Ct. 61,
73 L.Ed. 184].) The equal protection clause does not prevent the Legislature
from recognizing "degrees of evil." (Tigner v. Texas, 310 U.S. 141 [60 S.Ct.
879, 84 L.Ed. 1124]; Truax v. Raich, 239 U.S. 33 [36 S.Ct. 7, 60 L.Ed. 131].)
Nor is the Legislature prevented by the equal protection clause from confining
"its restrictions to those classes of cases where the need is deemed to be
clearest." (Miller v. Wilson, 236 U.S. 373, 384 [35 S.Ct. 342, 59 L.Ed. 628].)
"[Where] a given situation admittedly presents a proper field for the exercise
of the police power the extent of its invocation and application is a matter
which lies very largely in legislative discretion." (Zahn v. Board of Public
Works, 195 Cal. 497, 514 [234 P. 388].) The need for prohibiting all miscegeny,
together with administrative impracticalities inherent in any such attempt, were
proper matters for the Legislature to consider. And the fact, if it be a fact,
that some people contract [***109] such marriages within this state illegally,
or others contract such marriages validly outside the state and subsequently
reside here, does not lend support to any contention of unconstitutionality of
the statute.
Finally, it is argued that sections 60 and 69 are too vague and uncertain to
constitute valid regulation in that they lack definitions of descriptive terms,
such as mulatto, and are uncertain as to the mode of proof of race. After
almost 100 years of continuous operation of the present and preexisting similar
laws, the claimed obstacles to the application of the statute are more
theoretical than real. In any event the contention is not a matter for
consideration in this proceeding. In the application for a marriage license the
petitioner Perez states that she is a white person and the petitioner Davis
states that he is a Negro. The petition for the writ contains allegations of the
same facts. There is therefore no indefiniteness in the code sections that can
avail the petitioners; nor is there here any problem of proof. It is the
well-established rule that a charge of unconstitutionality can be raised only in
a case where that issue is involved in the determination [***110] of the
action, and then only by the person or a member of the class of persons
adversely affected. (American Fruit Growers v. Parker, 22 Cal.2d 513 [140 P.2d
23]; In re Willing, 12 Cal.2d 591, 597 [86 P.2d 663]; Max [*763] Factor & Co.
v. Kunsman, 5 Cal.2d 446 [55 P.2d 177]; People v. Globe Grain & Mill. Co., 211
Cal. 121 [294 P. 3]; A. F. Estabrook Co. v. Industrial Acc. Com., 177 Cal. 767
[177 P. 848]; Estate of Monks, supra, 48 Cal.App.2d 603, 610-612, involving the
miscegenation law of Arizona -- see also Kirby v. Kirby, supra, 24 Ariz. 9 [206
P. 405]; and State v. Pass, supra, 59 Ariz. 16 [121 P.2d 882] -- Jackson v. City
and County of Denver, supra, 109 Colo. 196 [124 P.2d 240], involving a
miscegenation statute of that state.) Here there is no possible uncertainty in
the statute as applied to the petitioners.
The alternative writ should be discharged and the peremptory writ denied.