Loving v. Commonwealth of Virginia Brief Amicus Curiae

    1 st t h e

Supreme (Emurt nf tip lu tt^  States
O ctober T erm , 1966 

No. 395

R ichard  P erry  L oving, et ux.,
Appellants,

v.

Co m m on w ealth  oe V irginia ,
Appellee.

ON APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA

BRIEF OF N.A.A.G.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE

J ack  Greenberg 
J ames M . N abrit , III 
M ichael  M eltsner 
M elvyn  Z arr

10 Columbus Circle 
New York, New York 10019

Attorneys for N.A.A.C.P. Legal Defense 
and Educational Fund, Inc. as 
Amicus Curiae



TABLE OF CONTENTS

Interest of the Amicus Curiae..................................   1

Argument ....................    3

Conclusion ...........      15

A ppendix I ..................................................................   17

A ppendix II ..................     19

Table op Cases

Abernathy v. Alabama, 380 U.S. 447 ........................... 2
Abington School District v. Schempp, 374 U.S. 203 .....  7
Anderson v. Martin, 375 U.S. 399 ..................................  2, 6

Bailey v. Patterson, 369 U.S. 41 ....................................... 2,6
Barr v. City of Columbia, 378 U.S. 146 ......................... 2
Barrows v. Jackson, 346 U.S. 249 ..................................  6
Bell v. Maryland, 378 U.S. 226 ........................................  2
Bolling v. Sharpe, 347 U.S. 497 ..................................... 6
Bouie v. City of Columbia, 378 U.S. 347 ........ ..............  2
Boynton v. Virginia, 364 U.S. 454 ..................................  2
Bradley v. School Board, 382 U.S. 103 .... ....................  2, 6
Brown v. Board of Education, 347 U.S. 483 ...........2, 6,14
Buchanan v. War ley, 245 U.S. 60 ..................................  6
Burton v. Wilmington Parking Authority, 365 U.S.

715 .....................................................................................  6

Coleman v. Alabama, 377 U.S. 129 ..................................  2
Cooper v. Aaron, 358 U.S. 1 ..........................................  2, 6

Edwards v. South Carolina, 372 U.S. 229 ................... 2
Evans v. Newton, 382 U.S. 296 ..................................... . 2, 6

PAGE



11

Evers v. Dwyer, 358 U.S. 202 ........................................  6

Fields v. South Carolina, 375 U.S. 4 4 ............................  2

Garner v. Louisiana, 368 U.S. 157 ..................................  2
Gayle v. Browder, 352 U.S. 903 ......................................  2, 6
Georgia v. Rachel, 384 U.S. 780 ..................................... 2
Gibson v. Mississippi, 162 U.S. 565 ..............................  7
Gober v. City of Birmingham, 373 U.S. 374 ................. 2
Gomillion v. Lightfoot, 364 U.S. 339 .............................  9
Goss v. Board of Education, 373 U.S. 683 ................... 2, 6
Griswold v. Connecticut, 381 U.S. 479 ........................... 9

Hamilton v. Alabama, 376 U.S. 650 ..............................  2
Hamm v. Rock Hill, 379 U.S. 306 ..................................  2
Harmon v. Tyler, 273 U.S. 668 .................................. . 6
Henry v. Rock Hill, 376 U.S. 776 ..................................  2
Holmes v. Atlanta, 350 U.S. 879 ....................................  2, 6

Johnson v. Virginia, 373 U.S. 61 ..................................  6

Korematsu v. United States, 323 U.S. 214 ................... 6

Lombard v. Louisiana, 373 U.S. 267 ..............................  6

Mayor and City Council of Baltimore v. Dawson, 350
U.S. 877 ...........................................................................  2,6

McLaughlin v. Florida, 379 U.S. 184 .......................... 2,4,5
Meyer v. Nebraska, 262 U.S. 390 ..................................  9
Muir v. Louisville Park Theatrical Ass’n, 347 U.S. 971 6

Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (1955), judg. 
vacated, 350 U.S. 891 (1955), judg. reinstated, 197 
Va. 734, 90 S.E.2d 849 (1956), motion to recall 
mandate denied, 350 U.S. 985 (1956) ....................... 3,4

PAGE



I ll

Naim y. Naim, 197 Va. 80, 87 S.E.2d 749 ...................9,14
New Orleans City Park Improvement Asso. v. Detiege,

' 358 U.S. 5 4 ......... ....... .............. ............................ ...........  6

Pace v. Alabama, 106 U.S. 583 .... ................... ........... . 4
Perez v. Lippold, 32 Cal.2d 711, 198 P.2d 17 (1948) .... 11
Peterson v. City of Greenville, 373 U.S. 244 ............... 2, 6
Plessy v. Ferguson, 163 U.S. 537 ..................................  4

Rogers v. Paul, 382 U.S. 198 ..........................................  2

Scott v. Georgia, 39 Ga. 321 (1869) ..............................  10
Scott v. Sandford, 19 How. (60 U.S. ) 393 ....................... 13
Shelley v. Kraemer, 334 U.S. 1 .................. ......................  6
Skinner v. Oklahoma, 316 U.S. 535 ........ ....... ....... ..........  9
Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 ............. 7
Smith v. Allwright, 321 U.S. 649 ....................................  6
State v. Jackson, 80 Mo. 175 (1883) ...............................  10
State Athletic Commission v. Dorsey, 359 U.S. 533 .... 2, 6
Steele v. Louisville & N. R. Co., 323 U.S. 192 ..... .........  6
Strauder v. West Virginia, 100 U.S. 303 ....................... 6, 7

Turner v. Memphis, 369 U.S. 350  ...............................  2, 6

Watson v. Memphis, 373 U.S. 526 ..................................  2,6
Wright v. Georgia, 373 U.S. 284 ......................................  2,6

Statutes Involved:

Va. Code Section 20-54 .....................................................  3
Va. Code Section 20-57 ...................... .... .......................... 3
Va. Code Section 20-58 ......... ............................................. 3 ?4
Va. Code Section 20-59 ......................... ............................. 3
Va. Code Section 20-60 ...................... ............................... 3

PAGE



IV

Other Authorities:

Beals and Hoijer, An Introduction to Anthropology
(1953) ..............      11

Black, The Lawfulness of the Segregation Decisions,
69 Yale L. J. 421 (1960) ......... ....................................... 8

Dobzhansky, “ The Race Concept in Biology,” The
Scientific Monthly, LII (Feb. 1941) ..........................  10

Hankins, The Racial Basis of Civilisation (1926) .......  11
Kroeber, Anthropology (1948) .......................................  12
Montague, An Introduction to Physical Anthropology

(1951) ...........     12
Montague, Man’s Most Dangerous Myth: The Fallacy

of Race (4th ed. 1964) ............................................10,11,12
Murray, States’ Laws on Race and Color (1951) ........... 14
Note, 58 Yale L. J. 472 (1949) ............. ............. .............  11
UNESCO, “ Statement on the Nature of Race and Race 

Differences—by Physical Anthropologists and Ge­
neticists, September 1952.” .................. ......................... 11

Weinberger, “A  Reappraisal of the Constitutionality 
of Miscegenation Statutes,” 42 Cornell L. Q. 208 .... 10 

Yerkes, “Psychological examining in the U. S. Army,”
15 Mem. Nat. Acad. Sci. (1921) ..................................  12

PAGE



In the

(Emtrt nf tljiv Tl&mttb States
O ctober T erm , 1966 

No. 395

R ichard  P erry L oving, et ux.,
v.

Appellants,

Com m on w ealth  oe V irginia ,
Appellee.

ON APPEAL PROM THE SUPREME COURT OE APPEALS OE VIRGINIA

BRIEF OF N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE

Interest of the Amicus Curiae

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc. is a non-profit membership corporation, incorporated 
under the laws of the State of New York in 1940. It was 
formed to assist Negroes to secure their constitutional 
rights by the prosecution of lawsuits. Its charter declares 
that its purposes include rendering legal aid gratuitously 
to Negroes suffering injustice by reason of race or color 
who are unable, on account of poverty, to employ and 
engage legal aid on their own behalf. The charter was 
approved by a New York court, authorizing the organiza­
tion to serve as a legal aid society. The N.A.A.C.P. Legal 
Defense and Educational Fund, Inc. is independent of 
other organizations and is supported by contributions of 
funds from the public.



2

The Fund has litigated a great many cases involving 
the civil rights of Negroes which have sought to eliminate 
racial segregation and discrimination.1 One of those cases 
was McLaughlin v. Florida, 379 U.S. 184, a case wThich, 
as we shall submit below, has an important bearing on 
the present litigation. The Fund consistent with its op­
position to all forms of racial discrimination supports 
appellants’ arguments that Virginia’s laws punishing inter­
racial marriage violate the Constitution. The parties have 
consented to the filing of an amicus curiae brief by the 
N.A.A.C.P. Legal Defense and Educational Fund, Inc. and 
copies of their letters of consent will be submitted to the 
Clerk with this brief.

1 Some of the cases in which the N.A.A.C.P. Legal Defense and Edu­
cational Fund, Inc. has opposed racial discrimination in recent years are 
eases involving schools (Brown v. Board of Education, 347 U.S. 483; 
Cooper v. Aaron, 358 U.S. 1; Goss v. Board of Education, 373 U.S. 683; 
Bradley v. School Board, 382 U.S. 103; Rogers v. Paul, 382 U.S. 198); 
public parks (Mayor and City Council of Baltimore v. Dawson, 350 U.S. 
877; Holmes v. Atlanta, 350 U.S. 879; Wright v. Georgia, 373 U.S. 284; 
Watson v. Memphis, 373 U.S. 526; Evans v. Newton, 382 U.S. 296); 
voting (Anderson v. Martin, 375 U.S. 399); transportation facilities 
(Gayle v. Browder, 352 U.S. 903; Boynton v. Virginia, 364 U.S. 454; 
Bailey v. Patterson, 369 U.S. 41; Turner v. Memphis, 369 U.S. 350; Aber­
nathy v. Alabama, 380 U.S. 447); restaurants (Garner v. Louisiana, 368 
U.S. 157; Peterson v. City of Greenville, 373 U.S. 244; Gober v. City 
of Birmingham, 373 U.S. 374; Bell v. Maryland, 378 U.S. 226; Bouie v. 
City of Columbia, 378 U.S. 347; Barr v. City of Columbia, 378 U.S. 146; 
Hamm v. Rock Hill, 379 U.S. 306; Georgia v. Rachel, 384 U.S. 780); 
the right of peaceable assembly (Edioards v. South Carolina, 372 U.S. 
229; Fields v. South Carolina, 375 U.S. 44; Henry v. Rock Hill, 376 U.S. 
776); jury discrimination (Coleman v. Alabama, 377 U.S. 129); dis­
criminatory treatment of a witness (Hamilton v. Alabama, 376 U.S. 650), 
and athletic contests (State Athletic Commission v. Dorsey, 359 U.S. 533).



3

Argument

Appellants were convicted of violating Virginia Code 
Section 20-58, and Virginia’s highest court has rejected 
their objections that the statute violates their rights under 
the Constitution of the United States. Section 20-58 is one 
of several Virginia laws which prohibit marriages between 
white persons and colored persons.2 It provides:

§20-58. 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 inten­
tion of returning, and be married out of it, and after­
wards return to and reside in it, cohabiting as man 
and wife, they shall be punished as provided in §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.

The Supreme Court of Appeals of Virginia, in the opinion 
below, found “no sound judicial reason” (E. 25), to depart 
from its prior decision upholding the law forbidding inter­
racial marriage against a federal constitutional challenge. 
Naim v. Naim, 197 Va. 80, 87 S.E,2d 749 (1955), judg. 
vacated, 350 U.S. 891 (1955), judg. reinstated, 197 Va. 
734, 90 S.E.2d 849 (1956), motion to recall mandate denied, 
350 U.S. 985 (1956) (case “devoid of a properly presented 
federal question” ). In Naim v. Naim, supra, the Virginia 
court said that the purpose of the state’s laws against

2Va. Code §20-54 prohibits interracial marriage in the State. Section 
20-57 provides that marriages between white and colored persons are 
“ absolutely void without any decree of divorce or other legal process.” 
Section 20-59 makes inter-marriage a felony punishable by confinement 
in the penitentiary for not less than one nor more than five years. Section 
20-60 provides that any person performing a marriage ceremony between 
a white person and a colored person shall forfeit two hundred dollars.



4

intermarriage was “to preserve the racial integrity of its 
citizens” and so that the state “ shall not have a mongrel 
breed of citizens” (87 S.E.2d at 756), and that: “I f  preser­
vation of racial integrity is legal, then racial classification 
to effect that end is not presumed to be arbitrary” (87 
S.E.2d at 755). Appellants argued in the courts below 
that Naim v. Naim, supra, should not be followed because 
it was based upon precedents—particularly Plessy v. Fer­
guson, 163 U.S. 537, and Pace v. Alabama, 106 U.S. 583— 
which had been overruled. The court below rejected these 
arguments, and asserted that McLaughlin v. Florida, 379 
U.S. 184, which appellants relied on, “detracted not one 
bit from the position asserted in the Naim opinion” (R. 24). 
The court thought that none of the many decisions in­
validating racial laws under the Fourteenth Amendment3 
required invalidation of the law punishing interracial mar­
riage because of “an overriding state interest in the insti­
tution of marriage” (R. 24). We submit that the laws 
forbidding and punishing marriages between white persons 
and Negroes violate the Due Process and Equal Protection 
Clauses of the Fourteenth Amendment to the Constitution 
of the United States.

Virginia Code §20-58, on its face and as applied in this 
case, makes a person’s race the test of whether his conduct 
is criminal. No penalty is provided for persons of the 
same race who engage in the conduct mentioned in the 
section—i.e., leaving the state for the purpose of being 
married, with the intention of returning, being married 
out of the state, and afterwards returning to and residing 
in the state cohabiting as man and wife. The essence of 
the law is racial, and race is the test of criminality. It is 
obvious, and doubtless would be conceded by the State,

3 See, e.g., cases collected in note 1, supra, and see text infra, p. 6.



5

that appellants’ conduct would be entirely lawful under 
Virginia law had they both been white, or both Negroes.

We urge that the issue of the invalidity of this law may 
be disposed of on this ground and without reference to 
other possible formulations of the issue. As Mr. Justice 
Stewart, joined by Mr. Justice Douglas, wrote concurring 
in McLaughlin v. Florida, 379 U.S. 185, 198:

. . .  I cannot conceive of a valid legislative purpose 
under our Constitution for a state law which makes 
the color of a person’s skin the test of whether his 
conduct is a criminal offense. * # # And I think it is 
simply not possible for a state law to be valid under 
our Constitution which makes the criminality of an 
act depend upon the race of the actor. Discrimination 
of that kind is invidious per se.

In McLaughlin, supra, the opinion of the Court, by Mr. 
Justice White, invalidated Florida’s interracial cohabita­
tion law “without reaching the question of the validity of 
the State’s prohibition against interracial marriage” (379 
U.S. at 195). The opinion of the Court in McLaughlin, 
supra, said that the Florida law was invalid “Because the 
section applies only to a white person and a Negro who 
commit the specified acts and because no couple other than 
one made up of a white and a Negro is subject to con­
viction upon proof of the elements comprising the offense 
it proscribes . . .” (379 U.S. at 184). The opinion said 
also that this racial classification “must be viewed in light 
of the historical fact that the central purpose of the Four­
teenth Amendment was to eliminate racial discrimination 
emanating from official sources in the States.” 379 U.S. 
at 192. The Court then inquired whether there was any 
statutory purpose which might justify the classification; 
found that there was none; and held the law invalid under 
the Equal Protection Clause.



6

We urge that racially discriminatory state laws are no 
longer only “constitutionally suspect” (Bolling v. Sharpe, 
347 U.8. 497, 499) and merely subject to “rigid scrutiny” 
(.Korematsu v. United States, 323 U.8. 214, 216). The 
decisions which have invalidated every state segregation 
law or practice to come before this Court establish that 
there can be no justification for such laws and that they 
are all invalid per se. Strauder v. West Virginia, 100 U.S. 
303; Buchanan v. Warley, 245 U.S. 60; Harmon v. Tyler, 
273 U.S. 668; Smith v. Allwright, 321 U.S. 649; Steele v. 
Louisville & N. R. Co., 323 U.S. 192, 203; Shelley v. 
Kraemer, 334 U.S. 1; Barrows v. Jackson, 346 U.S. 249; 
Brown v. Board of Education, 347 U.S. 483; Muir v. 
Louisville Park Theatrical Ass’n, 347 U.S. 971; Mayor 
and City Council of Baltimore v. Dawson, 350 U.S. 877; 
Holmes v. Atlanta, 350 U.S. 879; Gayle v. Browder, 352 
U.S. 903; Cooper v. Aaron, 358 U.S. 1; New Orleans City 
Park Improv. Asso. v. Detiege, 358 U.S. 54; Evers v. 
Dwyer, 358 U.S. 202; State Athletic Commission v. Dorsey, 
359 U.S. 533; Burton v. Wilmington Parking Authority, 
365 U.S. 715; Bailey v. Patterson, 369 U.S. 41; Turner 
v. Memphis, 369 U.S. 350; Johnson v. Virginia, 373 U.S. 
61; Peterson v. City of Greenville, 373 U.S. 244; Lombard 
v. Louisiana, 373 U.S. 267; Wright v. Georgia, 373 U.S. 
284; Watson v. Memphis, 373 U.S. 526; Goss v. Board 
of Education, 373 U.S. 683; Anderson v. Martin, 375 U.S. 
399; Bradley v. School Board, 382 U.S. 103; Evans v. 
Newton, 382 U.S. 296. We think the teaching of these 
cases, viewed against their varied circumstances and against 
the multitude of supposed justifications for segregation 
which have been offered and rejected, is simply that 
the Equal Procetion Clause strikes down all forms of 
racial segregation laws. It is beyond the power of the 
state to compel segregation whatever the context and what­
ever the asserted justification. As Mr. Justice Stewart



7

wrote in 1963, “ . . . our Constitution presupposes that 
men are created equal, and that therefore racial differences 
cannot provide a valid basis for governmental action.” 
Abington School District v. Schempp, 374 U.S. 203, 317 
(dissenting opinion).

Most especially in the area of criminal justice must the 
law be administered “ without reference to consideration 
based on race.” Cf. Gibson v. Mississippi, 162 U.S. 565, 
591. To send a person to prison because of the color of 
his skin would make a mockery of the constitutional promise 
of equal protection of the laws. The Fourteenth Amend­
ment overrides any State choice to inflict penal sanctions 
based on race or color. Such a choice is simply denied 
to the States. The “pervading purpose” of the Thirteenth, 
Fourteenth and Fifteenth Amendments was to protect Ne­
groes against discrimination. The Slaughterhouse Gases, 
83 U.S. (16 Wall.) 36, 71. The Fourteenth Amendment 
was adopted to declare “ . . . that the law in the States 
shall be the same for the black as for the white; that all 
persons, whether colored or white, shall stand equal before 
the laws of the States and, in regard to the colored race, 
for whose protection the Amendment was primarily de­
signed, that no discrimination shall be made against them 
by law because of their color.” Strauder v. West Virginia, 
100 U.S. 303, 307.

Professor Charles L. Black, Jr. has cogently stated that 
the application of the Equal Protection Clause to cases 
of racial discrimination calls for no inquiry about whether 
such discriminations are “reasonable.” Professor Black 
wrote:

But the whole tragic background of the fourteenth 
amendment forbids the feedback infection of its central 
purpose with the necessary qualifications that have 
attached themselves to its broader and so largely acci­



8

dental radiations. It may have been intended that 
“ equal protection” go forth into wider fields than the 
racial. But history puts it entirely out of doubt that 
the chief and all-dominating- purpose was to ensure 
equal protection for the Negro. And this intent can 
hardly be given the self-defeating qualification that 
necessity has written on equal protection as applied 
to carbonic gas. If it is, then “ equal protection” for 
the Negro means “equality until a tenable reason for 
inequality is proferred.” On this view, Negroes may 
hold property, sign wills, marry, testify in court, walk 
the streets, go to (even segregated) school, ride public 
transportation, and so on, only in the event that no 
reason, not clearly untenable, can be assigned by a 
state legislature for their not being permitted to do 
these things. That cannot have been what all the noise 
was about in 1866.

What the fourteenth amendment, in its historical 
setting, must be read to say is that the Negro is to 
enjoy equal protection of the laws, and that the fact 
of his being a Negro is not to be taken to be a good 
enough reason for denying him this equality, however, 
“reasonable” that might seem to some people. All 
possible arguments, however convincing, for discrim­
inating against the Negro, were finally rejected by the 
fourteenth amendment.4

However, if it is thought to be necessary to inquire 
whether Virginia’s law serves any legitimate interest of the 
State which can justify the racial classification, any linger­
ing doubt about the invalidity of the law ought to be readily 
dispelled.

4 Black, The Lawfulness of the Segregation Decisions, 69 Y ale L J 
421, 423 (1960).



9

The court below asserts “an overriding state interest in 
the institution of marriage” (R. 24). Surely the States 
have traditionally exercised considerable control over the 
institution and incidents of marriage. But state legislative 
power over marriages is not omnipotent. State power over 
marriages, like “Legislative control of municipalities,” must 
of necessity lie “within the scope of relevant limitations 
imposed by the United States Constitution.”  Cf. Gomillion 
v. Lightfoot, 364 U.S. 339, 344-345. The right to marry 
is a protected liberty under the Fourteenth Amendment, 
and is one of the “basic civil rights of man.” Skinner v. 
Oklahoma, 316 U.S. 535, 541. In Meyer v. Nebraska, 262 
U.S. 390, 399, this Court declared:

While this court has not attempted to define with 
exactness the liberty thus guaranteed [by the Four­
teenth Amendment], the term has received much con­
sideration, 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 individuals to . . . marry, establish a home and 
bring up children. . . .

The several majority opinions in Griswold v. Connecticut, 
381 U.S. 479, demonstrate that a variety of constitutional 
doctrines have been thought to limit the power of the 
states over the marriage relationship.

Virginia’s principal apparent claimed justification for 
the law against interracial marriage is that stated in Naim 
v. Naim, 197 Va. 80, 87 S.E.2d 749, 756, the purpose to 
“preserve the racial integrity of its citizens,” and prevent 
what it calls “a mongrel breed of citizens” . The state’s 
justification thus turns on the amalgam of superstition, 
mythology, ignorance and pseudo-scientific nonsense sum­



10

moned up to support the theories of white supermacy and 
racial “purity.” 5

Clearly, this basis for anti-marriage laws rests on theories 
long deemed nonsensical throughout the world’s community 
of natural scientists. The distinguished American geneticist 
Theodosius Dobzhansky has said:

The idea of a pure race is not even a legitimate 
abstraction; it is a subterfuge used to cloak one’s 
ignorance of the phenomenon of racial variation. 
(Dobzhansky, “The Race Concept in Biology,” The 
Scientific Monthly, LII (Feb. 1941), pp. 161-165.)

And see the many scientific authorities rejecting the “pure 
race” idea collected in Weinberger, “A Reappraisal of the

5 Such nonsensical material pervades the legal opinions upholding laws 
against intermarriage. See, for example, State v. Jackson, 80 Mo. 175, 
179 (1883):

“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. . . . ”

See also, Scott v. Georgia, 39 Ga. 321, 323 (1869) :
“ The amalgamation of the races is not only unnatural, but is 

always productive of deplorable results. Our daily observations show 
us, that the offspring of these unnatural connections are generally 
sick and effeminate, and that they are inferior in physical develop­
ments and strength to the full-blood of either race. . . . Such con­
nections never elevate the inferior race to the position of superior, 
but they bring down the superior to that of the inferior. They are 
productive of evil, and evil only, without any corresponding good.” 
(Emphasis added.)

It is notable that even the word “miscegenation,”  now widely used in legal 
literature to refer to intermarriage, was reportedly invented as a hoax 
in an 1864 political pamphlet connected with a presidential campaign. 
See discussion in Montague, Man ’s Most Dangerous My t h : T he F al­
lacy of F ace, 400 (4th ed. 1964).



11

Constitutionality of Miscegenation Statutes,”  42 Cobnell 
L. Q. 208, 217, n. 68.6 7

The 1952 UNESCO Statement On The Nature of Race,1 
prepared by distinguished natural scientists from around 
the world, concludes:

There is no evidence for the existence of so-called 
“pure” races. Skeletal remains provide the basis of 
our limited knowledge about earlier races. In regard 
to race mixture, the evidence points to the fact. that 
human hybridization has been going on for an in­
definite but considerable time. Indeed, one of the 
processes of race formation and race extinction or 
absorption is by means of hybridization between races. 
As there is no reliable evidence that disadvantageous 
effects are produced thereby, no biological justifica­
tion exists for prohibiting intermarriage between per­
sons of different races.

Similarly, other pseudoscientific props for racism, includ­
ing the notions of biological disadvantages of race mixture, 
and the assumption that cultural levels depend on racial 
factors, are completely undermined by modern scientific 
knowledge.8 For example, the 1952 UNESCO Statement, 
supra, concludes by saying:

6 See also Note, 58 Y ale L. J. 472 (1949).
7 The full title is: “ Statement on the Nature o f Race and Race Differ­

ences—by Physical Anthropologists and Geneticists, September 1952,” 
published by UNESCO. The statement, published in numerous publica­
tions by UNESCO is conveniently available in Appendix A of Montague, 
op. cit., 361 et seq.

8 The importance of environmental factors in determining cultural levels 
was noted by the court in Perez v. Lippold, 32 Cal. 2d 711, 198 P.2d 17, 
24-25 (1948). Major contemporary research demonstrating the absence 
of any relation between race and cultural achievement is found in Beals 
and Hoijer, A n I ntroduction to A nthropology, 195-198 (1953); Han­
kins, T he R acial Basis of Civilization 367-371 (1926); Kroeber,



12

9. We have thought it worth while to set out in 
a formal manner what is at present scientifically es­
tablished concerning* individual and group differences.

(1) In matters of race, the only characteristics which 
anthropologists have so far been able to use effec­
tively as a basis for classification are physical (anatom­
ical and physiological).

(2) Available scientific knowledge provides no basis 
for believing that the groups of mankind differ in their 
innate capacity for intellectual and emotional develop­
ment.

(3) Some biological differences between human be­
ings within a single race may be as great or greater 
than the same biological differences between races.

(4) Vast social changes have occurred that have 
not been connected in any way with changes in racial 
type. Historical and sociological studies thus support 
the view that genetic differences are of little significance 
in determining the social and cultural differences be­
tween different groups of men.

(5) There is no evidence that race mixture produces 
disadvantageous results from a biological point of view. 
The social results of race mixture whether for good 
or ill, can generally be traced to social factors.

And see, generally, Montague, Man’s Most Dangerous 
Myth: The Fallacy of Race (4th ed. 1964), for a noted 
anthropologist’s full discussion of the most recent scientific 
evidence and research on race.

A nthropology 190-192 (1958); Ashley Montague, A n  I ntroduction to 
P hysical A nthropology 352-381 (1951); Yerkes, “ Psychological Ex­
amining in the U. S. Army,”  15 Mem . Nat. A cad. Sci. 705-742 (1921).



13

Actually, the laws against interracial marriage grew out 
of the system of slavery and were based on race prejudices 
and notions of Negro inferiority used to justify slavery, 
and later segregation. Chief Justice Taney said in Scott v. 
Sandford, 19 How. (60 TJ.S.) 393, 409 that laws against 
intermarriage:

. . . show that a perpetual and impassable barrier 
was intended to be erected between the white race and 
the one which they had reduced to slavery, and gov­
erned as subjects with absolute and despotic power, 
and which they then looked upon as so far below them 
in the scale of created beings, that intermarriages be­
tween white persons and negroes or mulattoes were 
regarded as unnatural and immoral, and punished 
as crimes, not only in the parties, but in the persons 
who joined them in marriage. And no distinction in 
this respect was made between the free negro or 
mulatto and the slave, but this stigma, of the deepest 
degradation, was fixed upon the whole race.

The court below disparaged the scientific texts cited to 
it by appellants as an invitation to “judicial legislation” 
(R. 25). But it is the state which must justify its racial 
classification. And the state can no more justify its racial 
classification here by reference to a nonsensical theory of 
pure races and racial superiority than it could impose some 
special disability on some citizens on a theory of witch­
craft, or restrict their liberty of movement on a claim that 
the earth is flat.

The sum of the other justifications for the laws against 
interracial marriage amount to little more than a claim 
that they promote segregation. They are exemplified by 
the opinion of the trial judge in appellants’ case who de­
clared :

Almighty God created the races white, black, yellow, 
malay and red, and he placed them on separate con­



14

tinents. And but for the interference with his arrange­
ment there would be no cause for such marriages. 
The fact that he separated the races shows that he 
did not intend for the races to mix (E. 16).

Such a theory could, of course, support any kind of dis­
criminatory practice which the States have ever devised; 
and, indeed, it seems to suggest discriminations never yet 
attempted in this country. As an individual the Judge is 
entitled to entertain his private theology. But the Four­
teenth Amendment places it entirely beyond the power 
of the state courts to implement racial discrimination, 
whatever the rationale.

The court below thought it important to mention it§ 
statement in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, 753, 
that “more than one-half of the states then [1955] had 
miscegenation statutes” (E. 21). That statement is, of 
course, no longer true. Thirteen states have repealed their 
anti-marriage laws since 1951 (see Appendix I, infra). 
Laws prohibiting interracial marriages continue in the 
statute books of only 17 of the 50 states (see Appendix II, 
infra), and it is notable that all of these are southern and 
border states which had extensive segregation codes9 prior 
to Brown v. Board of Education, 347 U.S. 483.

These laws, having only a racial character and purpose, 
are relics of the system of human slavery. They should be 
struck down for the same reasons this Court has in­
validated all other segregation laws. As a result of these 
many decisions, laws against interracial marriage are 
among the last of such racial laws with any sort of claim 
to viability. But they are the weakest, not the strongest, 
of the segregation laws. They intrude a racist dogma into

9 The segregation codes of the pre-Brown era are collected in Murray, 
States’ Laws ok R ace and Colob (1951).



15

the private and personal relationship of marriage. The 
state has no semblance of a rational claim of interest in 
such an intrusion. Virginia’s laws punishing interracial 
marriage violate the -Due Process and Equal Protection 
Clauses.

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment below should be reversed.

Respectfully submitted,

J ack  Gtbeenbebg 
J ames M. N abbit, I I I  
M ichael  M eltskeb  
M elvyn  Z aeb

10 Columbus Circle 
New York, New York 10019

Attorneys for N.A.A.C.P. Legal Defense 
and Educational Fund, Inc. as 
Amicus Curiae





17

APPENDIX I

S tates R epealing  L aw s A gainst I nterracial M arriage 
I n  R ecent Y ears

1. Arizona (1962) :

2. California (1959) :

3. Colorado (1957) :

4. Idaho (1959):

5. Indiana (1965) :

6. Montana (1953):

7. Nebraska (1963):

8. Nevada (1959) :

Laws 1962, ch. 14, §1, delet­
ing a portion of Ariz. Rev. 
Stat. §25-101 (1956).

Stat. 1959, eh. 146, §1, at 
2043, repealing Cal. Civ. 
Code §§60, 69 (1954).

Colorado Laws 57, §1, at 334, 
repealing Colo. Rev. Stat. 
§§90-1-2, 90-1-3 (1953).

Laws 1959, ch. 44, §1, at 89, 
deleting Idaho Code Ann. 
§32-206 (1947).

Acts 1965, No. 1039, repeal­
ing Ind. Ann. Stat. §44-104 
(Burns, 1952).

Laws 1953, ch. 4, sec. I, re­
pealing Laws 1909, ch. 49, 
secs. 1-5.

Neb. Sess. Laws, at 736 
(1963), repealing Rev. Stat. 
of Neb. §§42-103, 42-328 
(1948).

Nev. Stat. 1959, at 216, 217, 
repealing Nev. Rev. Stat. tit. 
11, ch. 122, 180 (1957).



18

9. North, Dakota (1955) : N.D. Stat. 1955, ch. 246, §1, 
repealing N.D. Code §14- 
03-04.

10. Oregon (1951) : O.E.S. §106.210 (1963), re­
pealing Ore. Code Law Ann. 
§§23-1010, 63-102.

11. South Dakota (1957) : S.D. Sess. Laws 1957, ch. 38, 
repealing S.D. Code §14.990 
(1939).

12. Utah (1963): Sess. Laws 1963, ch. 43, re­
pealing IJtah Stat. §30-1-2 
(1953).

13. Wyoming (1965) : Acts 1965, No. 3, repealing 
Wyo. Stat. §§20-18, 19.



19

APPENDIX II

S tates at P resent P rohibiting  I nterracial M arriages 
(P enalties for I nfractions A re I ndicated)

1. Alabama: Ala. Const. §102; Ala. Code, Tit. 14, §360
(1958); 2-7 imprisonment (idem.).

2. Arkansas: Ark Stat. §55-104 (1947); 1 year imprison­
ment and/or $250 tine (Ark. Stat. §41-106).

3. Delaware: Del. Code Ann., Tit. 13, §101 (1953); $100
fine in default of which imprisonment for not more 
than 30 days (Del. Code Ann., Tit. 13, §102).

4. Florida: Fla. Const, art. XVI, §24; Florida Stat.
§741.11 (1961); maximum 10 years imprisonment 
and/or maximum fine of $1,000 (Fla. Stat. §741.12).

5. Georgia: Ga. Code Ann., §53-106 (1933); 1 to 2 years
imprisonment (Ga. Code Ann. 53-9903).

6. Kentucky: Ky. Rev. Stat. §402.020 (1943); fine of $500
to $1000 and if violation continued after conviction, 
imprisonment of 3 to 12 months (K.R.S. §402.990).

7. Louisiana: La. Civil Code Art. 94 (Dart. 1945); 5 years
imprisonment (La. Rev. Stat. Ch. 14, §79).

8. Maryland: Md. Ann. Code Art. 27, §398 (1957); im­
prisonment from 18 months to ten years (idem.).

9. Mississippi: Miss. Const, art. 14, §263; Miss. Code Ann.
§459 (1942); Imprisonment up to 10 years (Miss. 
Code Ann. §2000, 1960).

10. Missouri: Mo. Rev. Stat. §451.020 (Supp. 1966); 2 
years in state penitentiary; and/or a fine of not 
less than $100, and/or imprisonment in county jail 
for not less than 3 months (Mo. Rev. Stat. §563.240).



20

11. North Carolina: N.C. Const, art. XIV, §8; N.C. Gen.
Stat. §51-3 (1953); 4 months to 10 years imprison­
ment (N.C. Gen. Stat. §14-181).

12. Oklahoma: Okla. Stat., Tit. 43, §12 (1961); 1 to five
years and up to $500 fine (Okla. Stat., Tit. 43, §13).

13. South Carolina: S.C. Const, art. 3, §34; S.C. Code
§20-7 (1952); imprisonment for not less than 12 
months, and/or fine of not less than $500 (idem.).

14. Tennessee: Tenn. Const, art. (11), §14; Tenn. Code
Ann. §36-402 (1956); 1 to 5 years imprisonment, or, 
on recommendation of jury, fine and imprisonment 
in county jail (Tenn. Code Ann. §36-403).

15. Texas: Tex. Rev. Civ. Stat. art. 4607 (1948); 2 to 5
years imprisonment (Tex. Penal Code art. 492).

16. Virginia: Va. Code Ann. §20-54 (1953); 1 to 5 years
(Va. Code Ann. §20-59).

17. West Virginia: W. Va. Code Ami. §4697.



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