The Marrying Kind(1952)

Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. 5Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. 6The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person," 7a prohibition against issuing marriage licenses until the issuing official is satisfied that [388 U.S. 1, 7] the applicants' statements as to their race are correct, 8certificates of "racial composition" to be kept by both local and state registrars, 9and the carrying forward of earlier prohibitions against racial intermarriage. 10

[Footnote 1 ] Section 1 of the Fourteenth Amendment provides: "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." [Footnote 2 ] 206 Va. 924, 147 S. E. 2d 78 (1966). [Footnote 3 ] Section 20-57 of the Virginia Code provides: "Marriages void without decree. Ÿ All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process." Va. Code Ann. 20-57 (1960 Repl. Vol.). [Footnote 4 ] Section 20-54 of the Virginia Code provides: "Intermarriage prohibited; meaning of term `white persons.' Ÿ It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term `white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter." Va. Code Ann. 20-54 (1960 Repl. Vol.). The exception for persons with less than one-sixteenth "of the blood of the American Indian" is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by "the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas . . . ." Plecker, The New Family and Race Improvement, 17 Va. Health Bull., Extra No. 12, at 25-26 (New Family Series No. 5, 1925), cited in Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189, 1202, n. 93 (1966). Section 1-14 of the Virginia Code provides: "Colored persons and Indians defined. Ÿ Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians." Va. Code Ann. 1-14 (1960 Repl. Vol.). [Footnote 5 ] After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md. Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala. Const., Art. 4, 102, Ala. Code, Tit. 14, 360 (1958); Arkansas, Ark. Stat. Ann. 55-104 (1947); Delaware, Del. Code Ann., Tit. 13, 101 (1953); Florida, Fla. Const., Art. 16, 24, Fla. Stat. 741.11 (1965); Georgia, Ga. Code Ann. 53-106 (1961); Kentucky, Ky. Rev. Stat. Ann. 402.020 (Supp. 1966); Louisiana, La. Rev. Stat. 14:79 (1950); Mississippi, Miss. Const., Art. 14, 263, Miss. Code Ann. 459 (1956); Missouri, Mo. Rev. Stat. 451.020 (Supp. 1966); North Carolina, N.C. Const., Art. XIV, 8, N.C. Gen. Stat. 14-181 (1953); Oklahoma, Okla. Stat., Tit. 43, 12 (Supp. 1965); South Carolina, S. C. Const., Art. 3, 33, S. C. Code Ann. 20-7 (1962); Tennessee, Tenn. Const., Art. 11, 14, Tenn. Code Ann. 36-402 (1955); Texas, Tex. Pen. Code, Art. 492 (1952); West Virginia, W. Va. Code Ann. 4697 (1961). Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming. The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948). [Footnote 6 ] For a historical discussion of Virginia's miscegenation statutes, see Wadlington, supra, n. 4. [Footnote 7 ] Va. Code Ann. 20-54 (1960 Repl. Vol.). [Footnote 8 ] Va. Code Ann. 20-53 (1960 Repl. Vol.). [Footnote 9 ] Va. Code Ann. 20-50 (1960 Repl. Vol.). [Footnote 10 ] Va. Code Ann. 20-54 (1960 Repl. Vol.). [Footnote 11 ] Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, "An Act to Preserve Racial Integrity," extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve "racial integrity." We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the "integrity" of all races. [388 U.S. 1, 13] 781b155fdc