|This insert is not part of the court record. It
is placed here because Deuteronomy 32:8 reads like the words in the
court record above.
Deuteronomy 32:8 "When the most High divided to the nations their inheritance, when he separated the sons of Adam, he set the bounds of the people according to the number of the children of Israel."
After their convictions, the Lovings took up
residence in the District of Columbia. On November 6, 1963, they filed a
motion in the state trial court to vacate the judgment and set aside the
sentence on the ground that the
statutes which they had violated were repugnant to the Fourteenth Amendment.
The motion not having been decided by October 28, 1964, the Lovings
instituted a class action in the United States District Court for the
Eastern District of Virginia requesting that a three-judge court be convened
to declare the Virginia antimiscegenation statutes unconstitutional and to
enjoin state officials from enforcing their convictions. On January 22,
1965, the state trial judge denied the motion to vacate the sentences, and
the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia.
On February 11, 1965, the three-judge District Court continued the case to
allow the Lovings to present their constitutional claims to the highest
The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and, after modifying the sentence, affirmed the convictions. The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966.
The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating Section 20-58 of the Virginia Code:
"Leaving State to evade law.---If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return and reside in it, cohabiting as man and wife, they shall be punished as provided in Section 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage."
Section 20-59, which defines the penalty for miscegenation, provides:
"Punishment for marriage.---If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."
Other central provisions in the Virginia statutory scheme are Section 20-57, which automatically voids all marriages between "a white person and a colored person" without any judicial proceeding, and Sections 20-54 and 1-14 which, respectively, define "white persons" and "colored persons and Indians" for purposes of the statutory prohibitions. The Lovings have never disputed in the course of this litigation that Mrs. Loving is a "colored person" or that Mr. Loving is a "white person" within the meanings given those terms by the Virginia statutes.
Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. The 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", a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants' statements as to their race are correct, certificates of "racial composition" to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage.
In upholding the constitutionality of these
provisions in the decision below, the Supreme Court of Appeals of Virginia
referred to its 1955 decision in Naim v. Naim as stating the reasons
supporting the validity of these laws. In Naim, the state court concluded
that the State's legitimate purposes were "to preserve the racial integrity
of its citizens", and "the obliteration of racial pride," obviously an
endorsement of the doctrine of White Supremacy. The Court also reasoned that
marriage has traditionally been subject to state regulation without federal
intervention, and, consequently, the regulation of marriage should be left
to exclusive state control by the Tenth Amendment.
While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited, notwithstanding the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska (1923) and Skinner v. Oklahoma (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree.
The clear and central purpose of the Fourteenth Amendment was to eliminate all official sources of invidious racial discrimination in the States. There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny", and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose...which makes the color of a person's skin the test of whether his conduct is a criminal offense."
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
statutes also deprive the
Lovings of liberty without
due process of law in violation of the Due Process Clause of the Fourteenth
Amendment. The freedom to marry has long been recognized as one of
the vital personal rights essential to the orderly pursuit of happiness by
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
These convictions must be reversed.
It is so ordered.
Whom God Has Joined Together
A book by
Pastor Dallas Jackson