Loving v. Commonwealth of Virginia Opinion

    SUPREME COURT OF THE UNITED STATES

No. 395.— October T erm, 1966.

Richard Perry Loving et ux., 
Appellants, 

v.
Commonwealth of Virginia.

On Appeal From the Su- 
1 preme Court of Appeals

of Virginia.

[June 12, 1967.]

M r . Chief Justice W arren delivered the opinion of 
the Court.

This case presents a constitutional question never 
addressed by this Court: whether a statutory scheme 
adopted by the State of Virginia to prevent marriages 
between persons solely on the basis of racial classifica­
tions violates the Equal Protection and Due Process 
Clauses of the Fourteenth Amendment.1 For reasons 
which seem to us to reflect the central meaning of those 
constitutional commands, we conclude that these stat­
utes cannot stand consistently with the Fourteenth 
Amendment.

In June 1958, two residents of Virginia, Mildred Jeter, 
a Negro woman, and Richard Loving, a white man, were 
married in the District of Columbia pursuant to its laws. 
Shortly after their marriage, the Lovings returned to Vir­
ginia and established their marital abode in Caroline 
County. At the October Term, 1958, of the Circuit Court

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.”



2 LOVING VIRGINIA.

of Caroline County, a grand jury issued an indictment 
charging the Lovings with violating Virginia’s ban on 
interracial marriages. On January 6, 1959, the Lovings 
pleaded guilty to the charge and were sentenced to one 
year in jail; however, the trial judge suspended the sen­
tence for a period of 25 years on the condition that the 
Lovings leave the State and not return to Virginia 
together for 25 years, stating that:

“Almighty God created the races white, black, 
yellow, malay, and red, and he placed them on 
separate continents. And but for the interference 
with his arrangement 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.”

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 judg­
ment and set aside the sentence on the ground that the 
statues 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 antimiscegena­
tion 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 state court.

The Supreme Court of Appeals upheld the constitu­
tionality of the antimiscegenation statutes and, after



LOVING v. VIRGINIA. 3

modifying the sentence, affirmed the convictions.2 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 § 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 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.”

Section 20-59, which defines the penalty for miscegena­
tion, 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 con­
finement in the penitentiary for not less than one 
nor more than five years.”

Other central provisions in the Virginia statutory scheme 
are § 20-57, which automatically voids all marriages 
between “a white person and a colored person” without 
any judicial proceeding,3 and §§ 20-54 and 1-14 which,

2206 Va, 924, 147 S. E. 2d 78 (1966).
3 Section 20-57 of the Virginia Code provides:
“ Marriages void without decree.— 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 
(1966).



4 LOVING v. VIRGINIA.

respectively, define “white persons” and “colored persons 
and Indians” for purposes of the statutory prohibitions.4 
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.

4 Section 20-54 of the Virginia Code provides:
“Intermarriage prohibited; meaning of term ‘white persons.’— 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 Caucasion; but per­
sons who have one-sixteenth or less of the blood of the American 
Indian and have no other non-Caucasie blood shall be deemed to 
be white persons. All laws heretofore passed and now in effect re­
garding the intermarriage of white and colored persons shall apply 
to marriages prohibited by this chapter.” Va. Code Ann. § 20-54 
(1966).

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 Improve­
ment, 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 U. Va. L. 
Rev. 1189, 1202, n. 93 (1966).

Section 1-14 of the Virginia Code provides:
“ Colored persons and Indians defined.—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 (1966).



LOVING v. VIRGINIA. 5

Virginia is now one of 16 States which prohibit and 
punish marriages on the basis of racial classifications.5 6 
Penalties for miscegenation arose as an incident to slav­
ery and have been common in Virginia since the colonial 
period.1’’ 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,” 7 a prohibition against issuing 
marriage licenses until the issuing official is satisfied that

5 After the initiation of this litigation, Maryland repealed its pro­
hibitions against interracial marriage, Md. Laws 1967, c. 6, leaving 16 
States with statutes outlawing interracial marriage: Alabama, Ala. 
Const. Art. IV, §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. Ann. 
§741.11 (1964); Georgia, Ga. Code Ann. § 53-106 (1961); Kentucky, 
Ky. Rev. Stat. Ann § 402.020 (Supp. 1966); Louisiana, La. Rev. Stat. 
Ann., Tit. 14, §79 (1951); 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. Ann., Tit. 43, § 12 
(1954); 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. Penal 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 vio­
late the Equal Protection Clause was the Supreme Court of 
California, Perez v. Lippold, 32 Cal. 2d 711, 198 P. 2d 17 (1948).

6 For a historical discussion of Virginia’s miscegenation statutes, 
see Wadlington, supra, n. 4.

7 Va. Code Ann. § 20-54 (1966).



6 LOVING v. VIRGINIA.

the applicants’ statements as to their race are correct,8 
certificates of “racial composition” to be kept by both 
local and state registrars,9 and the carrying forward of 
earlier prohibitions against racial intermarriage.10

I.
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, 
87 S. E. 2d 749, as stating the reasons supporting the 
validity of these laws. In Naim, the state court con­
cluded that the State’s legitimate purposes were “to pre­
serve the racial integrity of its citizens,” and to prevent 
“the corruption of blood,” “a mongrel breed of citizens,” 
and “the obliteration of racial pride,” obviously an en­
dorsement of the doctrine of White Supremacy. 87 S. E. 
2d, at 756. 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, Maynard v. Hill, 125 U. S. 190 (1888), 
the State does not contend in its argument before this 
Court that its powers to regulate marriage are un­
limited notwithstanding the commands of the Fourteenth 
Amendment. Nor could it do so in light of Meyer v. 
Nebraska, 262 U. S. 390 (1923), and Skinner v. Okla­
homa., 316 U. S. 535 (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

8 Va. Code Ann. § 20-53 (1966).
9 Va. Code Ann. §20-50 (1966).
10 Va. Code Ann. § 20-54 (1966).



LOVING v. VIRGINIA. 7

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. Thus, the State 
contends that, because its miscegenation statutes punish 
equally both the white and the Negro participants in an 
interracial marriage, these statutes, despite their reliance 
on racial classifications, do not constitute an invidious 
discrimination based upon race. The second argument 
advanced by the State assumes the validity of its equal 
application theory. The argument is that, if the Equal 
Protection clause does not outlaw miscegenation statutes 
because of their reliance on racial classifications, the 
question of constitutionality would thus become whether 
there was any rational basis for a State to treat inter­
racial marriages differently from other marriages. On 
this question, the State argues, the scientific evidence is 
substantially in doubt and, consequently, this Court 
should defer to the wisdom of the state legislature in 
adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere “equal 
application” of a statute containing racial classifications 
is enough to remove the classifications from the Four­
teenth Amendment’s proscription of all invidious racial 
discriminations, we do not accept the State’s contention 
that these statutes should be upheld if there is any pos­
sible basis for concluding that they serve a rational pur­
pose. The mere fact of equal application does not mean 
that our analysis of this statute should follow the ap­
proach we have taken in cases involving no racial dis­
crimination where the Equal Protection Clause has been 
arrayed against a statute discriminating between the 
kinds of advertising which may be displayed on trucks 
in New York City, Railway Express Agency, Inc. v. 
New York, 336 U. S. 106 (1949), or an exemption in 
Ohio’s ad valorem tax for merchandise owned by a non­
resident in a storage warehouse, Allied Stores of Ohio,



8 LOVING VIRGINIA.

Inc. v. Bowers, 358 U. S. 522 (1959). In these cases, 
involving distinctions not drawn according to race, the 
Court has merely asked whether there is any rational 
foundation for the discriminations, and has deferred to 
the wisdom of the state legislatures. In the case at bar, 
however, we deal with statutes containing racial classifi­
cations, and the fact of equal application does not im­
munize the statute from the very heavy burden of 
justification which the Fourteenth Amendment has tra­
ditionally required of. state statutes drawn according to 
race.

The State argues that statements in the Thirty-ninth 
Congress about the time of the passage of the Fourteenth 
Amendment indicate that the Framers did not intend 
the Amendment to make unconstitutional state miscege­
nation laws. Many of the statements alluded to by the 
State concern the debates over the Freemen’s Bureau 
Bill, which President Johnson vetoed, and the Civil 
Rights Act of 1866, enacted over his veto. While these 
statements have some relevance to the intention of 
Congress in submitting the Fourteenth Amendment, it 
must be understood that they pertained to the passage 
of specific statutes and not to the broader, organic pur­
pose of a constitutional amendment. As for the various 
statements directly concerning the Fourteenth Amend­
ment, we have said in connection with a related prob­
lem, that although these historical sources “cast some 
light” they are not sufficient to resolve the problem; 
“ [a]t best they are inconclusive. The most avid pro­
ponents of the post-War Amendments undoubtedly in­
tended them to remove all legal distinctions among ‘all 
persons born or naturalized in the United States.’ Their 
opponents, just as certainly, were antagonistic to both 
the letter and the spirit of the Amendments and wished 
them to have the most limited effect.” Brown et al. v. 
Board oj Education of Topeka et al., 347 U. S. 483



LOVING v. VIRGINIA. 9

(1954). See also Strauder v. West Virginia, 100 U. S. 
303, 310 (1880). We have rejected the proposition that 
the debates in the Thirty-ninth Congress or in the state 
legislatures which ratified the Fourteenth Amendment 
supported the theory advanced by the State, that the 
requirement of equal protection of the laws is satisfied 
by penal laws defining offenses based on racial classifi­
cations so long as white and Negro participants in the 
offense were similarly punished. McLaughlin et al. v. 
Florida, 379 U. S. 184 (1964).

The State finds support for its “equal application” 
theory in the decision of the Court in Pace v. Alabama, 
106 U. S. 583 (1882). In that case, the Court upheld a 
conviction under an Alabama statute forbidding adultery 
or fornication between a white person and a Negro which 
imposed a greater penalty than that of a statute pro­
scribing similar conduct by members of the same race. 
The Court reasoned that the statute could not be said 
to discriminate against Negroes because the punishment 
for each participant in the offense was the same. How­
ever, as recently as the 1964 Term, in rejecting the 
reasoning of that case, we stated “Pace represents a 
limited view of the Equal Protection Clause which has 
not withstood analysis in the subsequent decisions of 
this Court.” McLaughlin et al. v. Florida, supra, at 188. 
As we there demonstrated, the Equal Protection Clause 
requires the consideration of whether the classifications 
drawn by any statute constitute an arbitrary and in­
vidious discrimination. The clear and central purpose 
of the Fourteenth Amendment was to eliminate all 
official state sources of invidious racial discrimination 
in the States. Slaughter-House Cases, 16 Wall. 36, 71 
(1873); Strauder v. West Virginia, 100 U. S. 303, 307- 
308 (1880); Ex parte Virginia, 100 U. S. 339, 344-345 
(1880); Shelley v. Kraemer, 334 U. S. 1 (1948); Burton 
v. Wilmington Parking Authority, 365 U. S. 715 (1961).



10 LOVING v. VIRGINIA.

There can be no question but that Virginia’s mis­
cegenation statutes rest solely upon distinctions drawn 
according to race. The statutes proscribe generally ac­
cepted conduct if engaged in by members of different 
races. Over the years, this Court has consistently re­
pudiated “distinctions between citizens solely because 
of their ancestry” as being “odious to a free people whose 
institutions are founded upon the doctrine of equality.” 
Himbayashi v. United States, 320 U. S. 81, 100 (1943). 
At the very least, the Equal Protection Clause demands 
that racial classifications, especially suspect in criminal 
statutes, be subjected to the “most rigid scrutiny,” 
Korematsu v. United States, 323 U. S. 214, 216 (1944), 
and, if they are ever to be upheld, they must be showm 
to be necessary to the accomplishment of some per­
missible state objective, independent of the racial dis­
crimination which it 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 crimi­
nal offense.” McLaughlin v. Florida, supra, at 198 
(Stewart, J., joined by D ouglas, J., concurring).

There is patently no legitimate overriding purpose 
independent of invidious racial discrimination which 
justifies this classification. The fact that Virginia only 
prohibits interracial marriages involving white persons 
demonstrates that the racial classifications must stand 
on their own justification, as measures designed to main­
tain White Supremacy.11 We have consistently denied

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 Pre­
serve 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 with-



LOVING v. VIRGINIA. 11

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.

II.
These statutes also deprive the Lovings of liberty with­

out 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 per­
sonal rights essential to the orderly pursuit of happiness 
by free men.

Marriage is one of the “basic civil rights of man,” fun­
damental to our very existence and survival. Skinner v. 
Oklahoma, 316 U. S. 535, 541 (1942). See also Maynard 
v. Hill, 125 U. S. 190 (1882). To deny this fundamental 
freedom on so unsupportable a basis as the racial classifi­
cations 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 free­
dom 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. T, . , ,It is so ordered.

out 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 be­
cause 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.



SUPREME COURT OF THE UNITED STATES

No. 395.— October T erm, 1966.

Richard Perry Loving et ux., 
Appellants, 

v.
Commonwealth of Virginia.

On Appeal From the Su­
preme Court of Appeals 
of Virginia.

[June 12, 1967.]

M r. Justice Stewart, concurring.
I have previously expressed the belief that “ it is simply 

not possible for a state law to be valid under our Con­
stitution which makes the criminality of an act depend 
upon the race of the actor.” McLaughlin v. Florida, 
379 U. S. 184, 198 (concurring opinion). Because I 
adhere to that belief, I concur in the judgment of the 
Court.