Loving v. Virginia Brief for Appellants

    I n the

ûprrrnr Court at %  Hmtrft
October Term, 1966 

No. 395

R ichard P erry L oving, et ux., 

v.
Appellants,

V irginia,
Appellee.

APPEAL, FROM THE SUPREME COURT OP APPEALS OP VIRGINIA

BRIEF FOR APPELLANTS

B ernard S. Cohen 
P hilip J. H irschkop

110 North Royal Street 
Alexandria, Virginia

Attorneys for Appellants
W illiam D. Zabel 

52 Wall Street 
New York, New York

A rthur L. B erney 
67 Winthrop Road 
Brookline, Mass.

Marvin M. K arpatkin
Melvin L. W ulp

156 Fifth Avenue 
New York, New York

David Carliner
1424 16th Street, N.W.
Washington, D. C.

Of Counsel



I N D E X

Preliminary Statement ....................................................  1

Citation to Opinions Below ............................................. 2

Jurisdiction .................. ........... .......— .........—-...............  2

Constitutional and Statutory Provisions Involved .... 4

Questions Presented ...................    6

Statement of the Case ............   6

Summary of Argument................................................ ...  8

A rgument :

I. The validity of the entire Virginia statutory 
scheme prohibiting interracial marriage is at 
issue in this case ............................................. 11

II. The history of the Virginia anti-miscegena­
tion laws shows they are relics of slavery 
and expressions of racism .............................  15

Early History ..................................    16

Racial Integrity Act of 1924 .......................... 20

III. Anti-miscegenation laws cause immeasurable
social harm........................................................ 24

IV. The legislative history of the Fourteenth
Amendment does not exempt anti-miscegena­
tion laws from its application ......................  28

PAGE



11

PAGE

Y. The Virginia anti-miscegenation laws are 
racially discriminatory and deny appellants 
equal protection of the laws .......................... 31

VI. The Virginia anti-miscegenation laws violate 
the due process clause of the Fourteenth 
Amendment ......................................................  38

Conclusion .............. ..................................................... ..... 39

T able op A uthorities:

Cases:

Anderson v. Martin, 375 U. S. 399 (1964) ................... 33

Bolling v. Sharpe, 347 U. S. 497 (1954) ......................  39
Brown v. Board of Education, 347 U. S. 483 (1954) .... 10,

25-26, 29, 31, 32
Buchanan v. Warley, 245 U. S. 60 (1917) ............. . 39
Burton v. Wilmington Parking Authority, 365 U. S.

715 (1961) .....................................................................  30

Dorsey v. State Athletic Comm., 168 F. Supp. 149 
(E. D. La. 1958), aff’d per curiam, 359 TJ. S. 533 
(1959) ............................................................................. 33

Greenhow v. James’ Executor, 80 Va. 636 (1885) .......12,13
Griswold v. Connecticut, 381 U. S. 479 (1965) .......3, 38, 39

Hamm v. Virginia State Board of Elections, 230 F. 
Supp. 156 (E. D. Va.), aff’d per curiam, 379 U. S. 19
(1964) ..................................  33

Hirabayashi v. TJ. S., 320 TJ. S. 81 (1943) ____ ______ 33
Home Bldg. & Loan Ass’n v. Blaisdell, 290 H. S. 398 

(1934) 31



I l l

In re Shun Takahashi’s Estate, 113 Mont. 400, 129 
P. 2d 217 (1942) ............ ............................................. 12

Jackson v. City and County of Denver, 109 Colo. 196,
124 P. 2d 240 (1942) ......... .......................................  32

Kinney v. Commonwealth, 71 Va. 858 (1878) ...........13,14

Largent v. Texas, 318 U. S. 418 (1943) ...................... 3

Meyer v. Nebraska, 262 U. S. 390 (1922) ...................... 38
McLaughlin v. Florida, 379 U. S. 184 (1964) .......14, 29, 32,

33, 34
McPherson v. Commonwealth, 69 Va. 939 (1877) .......  14

NAACP v. Alabama, 357 U. S. 449 (1958) ..................  39
NAACP v. Button, 371 U. S. 415 (1963) ............ ..........  39
Naim v. Naim, 197 Va. 80, 87 S. E. 2d 749, vacated 

and remanded, 350 U. S. 891 (1955), aff’d, 197 Va.
734, 90 S. E. 2d 849, appeal dismissed, 350 U. S.
985 (1956) ..................................... ........................ 11,34,36

Nebbia v. New York, 291 U. S. 502 (1934) ..................  39
Norris v. Alabama, 294 U. S. 587 (1935)   ........ 29

Oyama v. California, 332 U. S. 633 (1948) .............. .... 33

Pace v. Alabama, 106 U. S. 583 (1883) ......................29,32
Palko v. Connecticut, 302 U. S. 319 (1937) ____ ___  38
Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (1948)

(sub nom. Perez v. Lippold) .....................................  38

Shelley v. Kraemer, 334 U. S. 1 (1948) .......... ............ . 32
Skinner v. Oklahoma, 316 U. S. 535 (1942) ............... 38
Stevens v. U. S., 146 F. 2d 120 (10th Cir. 1944) ....... 12
Strauder v. West Virginia, 100 IT. S. 303 (1880) ....... 29

PAGE



IV

Takahashi v. Fish & Game Commission, 334 U. S. 410'
(1948) ............................................................................. 33

Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425,
4 S. E. 2d 364 (1939) ................................................  12

Watson v. City of Memphis, 373 U. S. 526 (1963) ....... 33
Williams v. Bruffy, 96 U. S. 176 (1877) ...................... 3

Yick Wo v. Hopkins, 118 U. S. 356 (1886) ..................  33

United States Constitution:

Fourteenth Amendment ............... passim

Statutes:

28 U. S. C. §1257(2) ...............................................   3

42 U. S. C. § 4 1 6 (h )(l).......   12

Virginia Code Annotated:

§1-14 (Supp. 1964) .............................................. passim

§18.1-188 (1950) ........................................................  14

§18.1-193 (1950) ........................................................  14

§20-50 (1950) .............................................................  23

§20-53 (1950) .............................................................  23

§20-54 (1950) .................. ...... ...............   passimi

§20-57 (1950) ..............................      passim

§20-58 (1950) ..........................................................passim

§20-59 (1950) ..........................      passim

§20-60 (1960) ...........................................    18

§2253 (1887)...........          13

PAGE



V

PAGE

2 Laws of Virginia 170 (Hening 1823) ...................... 17

3 Laws of Virginia 86 (Hening 1823)  ....................... 17

Virginia Acts of Assembly, 1877-78, eh. VII, § 3 ........... 13

Other Authorities:

Avins, Anti-Miscegenation Laws and the Fourteenth 
Amendment: The Original Intent, 52 Va. L. Rev.
1224 (1966) ...................................................................  28

Applebanm, Miscegenation Statutes: A Constitutional 
and Social Problem, 53 Geo. L. J. 49 (1965) ....31-32, 38

Bickel, The Least Dangerous Branch (1962) ..............  32

Bickel, The Original Understanding and the Segre­
gation Decision, 69 Harv. L. Rev. 1 (1956) ........... 30

Black, The Lawfulness of the Segregation Decisions,
69 Yale L. J. 421 (1960) ............................................. 31

Bloch, Miscegenation, Melaleukation and Mr. Lincoln’s 
Dog (Schaum Publ. Co., N. Y. 1958) ...................... 2

Bruce, Economic History of Virginia in the Seven­
teenth Century (MacMillan & Co. 1896) .......... 16,17,18

Cash, The Mind of the South (1941) ......................... 24,25

Cox, The South’s Part in Mongrelizing the Nation 
(White America Society, Richmond 1926) ..............  23

Cox, White America (White America Society, Rich­
mond 1923) ............................. .....................................  20

Cummins & Kane, Miscegenation, The Constitution 
and Science, 38 Dicta 24 (1961) 37



V I

Fried, A Four-Letter Word That Hurts (Saturday

PAGE

Review, October 2, 1965) ............................................  35

Greenberg, Race Relations and American Law 348 
(1959) .................................. ..........................................  12

Journal of the Senate of the Commonwealth of Vir­
ginia (Supt. of Public Printing, Richmond 1924) .... 21

Kaplan, Miscegenation Issue in the Election of 1864, 
XXXIV Journal of Negro History 277 (July, 1949) 2

Kelly, Clio and the Court: An Illicit Love Affair, 1965 
Sup. Ct. Rev. 119 ........................................................ 30

Letter to the Editor From Members of the Dept, of
Anthropology of Columbia University, New York 
Times, December 15, 1964 ......................................... 37

Montagu, Man’s Most Dangerous Myth: The Fallacy 
of Race (4th ed. 1964) ................................................  35

Myrdal, An American Dilemma (1962) ______24,25,26,27

Pettigrew, A Profile of the Negro American (1964) ....24, 25

Pittman, The Fourteenth Amendment : Its Intended 
Effect on Anti-Miscegenation Laws, 43 N. C. L. Rev.
92 (1964)  ...........................................................  28

Restatement, Conflict of Laws §§133-134 (1934) .........  13

Restatement (Second), Conflict of Laws §132 (Ten. 
Draft No. 4-1957) .......................    13

Reuter, The American Race Problem: A Study of the 
Negro (Revised ed., Thos. Y. Crowell Co., N. Y. 
1938) ..................................................   16,17,20



V II

Richmond Times Dispatch, February 17, 1924, p. 6 .... 21

Richmond Times Dispatch, February 13, 1924, p. 1 .... 22

Seidelson, Miscegenation Statutes and the Supreme 
Court: A Brief Prediction of What the Court Will 
Do and Why, Catholic U. L. Rev. 156 (1966) ....... 12

Shapiro, Race Mixture (UNESCO 1965) ...................... 37

Smith, Killers of the Dream (1961 ed.) .................. 25,26

Taintor, Marriage in the Conflict of Laws, 9 Yand.
L. Rev. 607 (1956) ........................................................13-14

The Race Question and Modern Science: The State­
ment of the Nature of Race and Race Differences, 
Article 7 (UNESCO 1952) .........................................  37

United Nations Universal Declaration of Human 
Rights, Article 16.1 ......................................................  38

Wadlington, The Loving Case: Virginia’s Anti-
Miscegenation Statute in Historical Perspective, 52 
Va. L. Rev. 1189 (1966) ........................... ..... 15,17,19,22

Wechsler, Toward Neutral Principles of Constitutional 
Law, 73 Harv. L. Rev. 1 (1959) ................................. 30, 32

Weinberger, A Reappraisal of the Constitutionality of 
Miscegenation Statutes, 42 Cornell L. Q. 208 (1957) .. 35

PAGE



In THE

(Etmrt af X\\t lluttub States
October T erm, 1966 

No. 395

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

v.

V irginia,
Appellee.

ON APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA

BRIEF FOR APPELLANTS

Preliminary Statement

This important case presents the question whether the 
United States Constitution invalidates those laws of Vir­
ginia which prohibit and penalize the marriage of a man 
and a woman and their subsequent living together simply 
because one of the couple is Negro and the other is white. 
It gives this Court an appropriate opportunity to strike 
down the last remnants of legalized slavery in our coun­
try—the anti-miscegenation laws of Virginia and sixteen 
other states which ban Negro-white marriages. This Court 
has never ruled on the constitutionality of the anti-misce­



2

genation laws. No other civilized country in the world has 
such laws except the Union of South Africa.

Citation to Opinions Below

The opinion of the Circuit Court of Caroline County, 
Virginia (R. 8) is not officially reported. The opinion of 
the Supreme Court of Appeals of Virginia is reported at 
206 Va. 924, 147 S. E. 2d 78 (1966) (R. 19-27).

Jurisdiction

On January 6, 1959, appellants, who were represented 
by counsel, pleaded guilty and were convicted in the Circuit 
Court of Caroline County of violating Virginia’s anti­
miscegenation* statutes. The specific charge in the indict­
ment (R. 5-6) was that they left Virginia and contracted a 
miscegenetic marriage in the District of Columbia with 
the intention of returning to and actually returning and 
cohabiting as man and wife in Virginia in violation of 
Va. Code § 20-58. They were each sentenced to one year 
in jail but their sentences were suspended by Judge Leon 
M. Bazile for a period of twenty-five years, upon the con­
dition that they immediately leave Caroline County and 
the State of Virginia and not return together or at the

* The term “miscegenation” , derived from the Latin “miscere” 
(to mix) and “genus” (race), was coined in an anonymously pub­
lished political pamphlet, “ Miscegenation: The Theory of the 
Blending of the Races, Applied to the American White Man and 
Negro” . It was written by Democrats David Goodman Croly and 
George Wakeman, primarily in order to use the race issue in the 
1864 Presidential election by attributing the pamphlet’s favorable 
views on racial intermixing to the Republicans. Bloch, Miscegena­
tion, Melaleukation and Me. L incoln’s Dog 37-42 (Schaum Publ. 
Co., N. Y. 1958); S. Kaplan, “Miscegenation Issue in the Election of 
1864” , X X X IV  Journal of Negro History 277 (July, 1949).



3

same time to the county or state for twenty-five years
(R. 6).

On November 6, 1963, appellants filed a Motion to Vacate 
Judgment and Set Aside Sentence (R. 7) in the Circuit 
Court of Caroline County which was denied by an Order 
of Judge Bazile on January 22, 1965 (R. 17).

Appellants then appealed to the Supreme Court of Ap­
peals of Virginia which heard the case on the merits. On 
March 7, 1966, the Supreme Court of Appeals of Virginia 
affirmed the convictions of appellants, set aside their sen­
tences,* and remanded for further sentencing not incon­
sistent with its opinion (R. 28). However, on March 28, 
1966, the Supreme Court of Appeals of Virginia issued an 
Order staying execution of its judgment of March 7, 1966, 
so that appellants “may have reasonable time and opportu­
nity to present to the Supreme Court of the United States 
a petition for appeal to review the judgment of this Court” 
(R. 28) (Omitted in printing).

Notice of Appeal to the Supreme Court of the United 
States was filed in the Supreme Court of Appeals of Vir­
ginia on May 31, 1966 (R. 29). Jurisdiction of this Court 
rests upon 28 U. S. C. § 1257 (2). Williams v. Bruffy, 96 
U. S. 176 (1877); Largent v. Texas, 318 U. S. 418 (1943); 
Griswold v. Connecticut, 381 U. S. 479 (1965). Probable 
jurisdiction was noted December 12, 1966 (R. 32).

* The highest Virginia court held that the condition imposed by 
Judge Bazile in suspending the sentences was unreasonable since 
cohabitation in Virginia by the Lovings, as man and wife, which 
the highest Virginia court termed “the real gravamen of the offense 
charged” against them, could be prohibited without preventing ap­
pellants from returning together to the State.



4

Constitutional and Statutory Provisions Involved

1. Petitioners were convicted of violating V a. Code A nn . 
§20-58 (1950) (Vol. 4, p. 491), which 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.

2. This case also involves:

(i) V a. Code A n n . § 20-59 (1950) (Yol. 4, p. 492), which 
provides:

§ 20-59. Punishment for marriage.—If any white per­
son 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 confine­
ment in the penitentiary for not less than one nor 
more than five years.

(ii) Va. Code A n n . § 20-57 (1950) (Vol. 4, p. 491), which 
provides:

§ 20-57. Marriages void without decree.—All mar­
riages between a white person and a colored person 
shall be absolutely void without any decree of divorce 
or other legal process.



0

(iii) Va. Code A nn . § 20-54 (1950) (Yol. 4, p. 489), which 
provides:

§ 20-54. 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 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 pro­
hibited by this chapter.

(iv) Va. Code A n n . §1-14 (Supp. 1964) (Yol. 1, p. 12), 
which provides:

§ 1-14. 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.

3. This case also involves the equal protection and due 
process clauses of the Fourteenth Amendment to the Con­
stitution of the United States.



6

Questions Presented

1. Do the Virginia anti-miscegenation laws violate the 
due process and equal protection clauses of the Fourteenth 
Amendment to the United States Constitution?

2. Can a State, either by its criminal or civil law, con­
stitutionally prohibit and penalize a marriage between and 
cohabitation by two of its residents because one of them 
is Negro and the other is white?

Statement of the Case

On or about June 2, 1958, Mildred Jeter, a Negro female, 
and Eichard Perry Loving, a white male, were lawfully 
married in the District of Columbia pursuant to its laws. 
There is no dispute here that Mrs. Loving is a “ colored 
person” and Mr. Loving is a “white person” within the defi­
nitions of those terms in the Virginia Code or that, at all 
times relevant to this litigation, the Lovings were residents 
of Virginia (R. 20).

Shortly after their marriage, appellants returned to Vir­
ginia and established their marital abode in Caroline 
County. On July 11, 1958, warrants were issued charging 
them with attempting to evade the Virginia ban on inter­
racial marriages (R. 2). Thereafter, a grand jury of Caro­
line County indicted them in the following manner:

The said Richard Perry Loving, being a white per­
son, and the said Mildred Delores Jeter, being a colored 
person, did unlawfully and feloniously go out of the 
State of Virginia, for the purpose of being married, 
and with the intention of returning to the State of



7

Virginia and were married out of the State of Virginia, 
to-wit, in the District of Columbia on June 2, 1958, 
and afterwards returned to and resided in the County 
of Caroline, State of Virginia, cohabiting as man and 
wife against the peace and dignity of the Common­
wealth (R. 5-6).

On January 6, 1959, the Lovings entered pleas of guilty, 
and they were each sentenced to one year in jail but their 
sentences were suspended, as previously explained, on the 
condition that they leave Virginia and not return together 
for twenty-five years.

After their convictions and until the summer of 1963, 
the Lovings took up residence in the District of Columbia. 
Subsequently, they retained counsel who have represented 
them in their attempts to reverse the judgment and set 
aside the sentences of the Circuit Court of Caroline County 
so that they may live peacefully and without fear of legal 
prosecution in their home state.

On October 28, 1964, appellants instituted a class action 
in the United States District Court for the Eastern Dis­
trict of Virginia, requesting that a three-judge federal 
court be convened to declare the Virginia anti-miscegenation 
laws unconstitutional and to enjoin the State officials from 
enforcing appellants’ prior convictions.

On February 11, 1965, the three-judge federal court 
(Judges Bryan, Butzner and Lewis) entered an interlocu­
tory order continuing the matter so that appellants herein 
might have a reasonable time to “ submit [the] issue 
[therein] to the state courts for final determination.” 
Since the summer of 1963 and during the pendency of all



8

court proceedings thereafter and at the present time, the 
Lovings have continued to reside in Virginia, safe from 
further arrest and prosecution only because the three-judge 
federal court’s interlocutory order stated that:

. . .  in the event the plaintiffs [Lovings] are taken 
into custody in the enforcement of the said judgment 
and sentence, this court, under the provisions of title 
28, section 1651, United States Code should grant the 
plaintiffs bail in a reasonable amount during the pen­
dency of the State proceedings in the State Courts 
and in the Supreme Court of the United States, if 
and when the case should be carried there . . . .

Summary of Argument

This case challenges the validity of the entire Virginia 
statutory scheme prohibiting and penalizing miscegenation. 
There is no legal argument of any merit which would 
allow Virginia to punish its residents who enter into 
miseegenetic marriages within the State and, on the 
other hand, prohibit Virginia from punishing couples who 
go out of the State to evade the anti-miscegenation laws. 
Furthermore, any holding that the particular evasion stat­
ute, Section 20-58, under which the Lovings were convicted, 
is invalid on some limited ground would not do justice to 
appellants because their marriage under settled Virginia 
case law would be void. Thus they would be subject to fur­
ther prosecution for the same acts that have caused the 
convictions from which they appeal, namely, the inter­
racial nature of their marriage together with their co­
habitation as man and wife in Virginia. Also, they would 
suffer the outrageous civil effects of being parties to a



9

void miscegenetic marriage: they -would not be able to 
inherit from each other; their three children would be 
deemed illegitimate; they could lose Social Security bene­
fits, the right to file joint income tax returns and even 
rights to workmen’s compensation benefits—all of which 
are contingent upon a valid marital relationship.

Accordingly, this case requires a determination whether 
a State, either by its criminal or civil law, can constitu­
tionally prohibit and penalize a marriage between two com­
petent, consenting adults and their cohabitation within such 
State solely because one of them is Negro and the other 
is white.

The Virginia anti-miscegenation laws were originally 
passed primarily for economic and social reasons as means 
to foster and implement the institution of slavery. To a 
lesser extent, they were also the products of the majority 
white group’s racial and religious prejudices and fears of 
the Negro. The present Virginia statutory scheme as en­
acted in 1924 both incorporated many past miscegenation 
laws and expanded the prohibitions on interracial marriage. 
This legislation, however, was motivated primarily by ra­
cial intolerance and antagonism directed against the Negro, 
and sought to preserve only the integrity of the so-called 
“ White Race” for reasons intellectually analogous to 
Hitler’s goal of creating a Super Race.

In light of the history, symbolic meaning and effects of 
miscegenation laws, their deleterious social impact on our 
people, both Negro and white, is immeasurable. So long 
as they exist they will continue to perpetuate racial bitter­
ness and constitute an open affront to the dignity of the 
individual Negro American.



1 0

A correct appraisal of the legislative history of the 
Fourteenth Amendment shows that anti-miscegenation 
laws were not exempted from the application of its broad 
guarantees of equal protection and due process of law. 
These guarantees were open-ended and meant to be ex­
pounded in light of changing times and circumstances to 
prohibit racial discrimination.

Virginia’s miscegenation laws violate the equal protec­
tion and due process clauses of the Fourteenth Amend­
ment. The principle of Brown v. Board of Education, 347 
U. S. 483 (1954)—however it is articulated—controls the 
constitutionality of these laws and makes clear their in­
validity under the equal protection clause. Similarly, there 
is a constitutionally protected right of marriage which 
these laws arbitrarily and capriciously infringe in viola­
tion of due process of the law. While the States have an 
interest in and the power to regulate marriages, restric­
tions on marriage based on race are constitutionally sus­
pect. The State has the burden to show an overriding 
legislative purpose to justify such restriction. There is no 
such purpose to justify anti-miscegenation laws.



1 1

A R G U M E N T

I.

The validity o f the entire Virginia statutory scheme 
prohibiting interracial marriage is at issue in this case.

The “ evasion statute”, Section 20-58, under which appel­
lants were convicted supplements Virginia’s basic prohibi­
tion of Negro-white marriages celebrated within Virginia 
(Va. Code § 20-54); it deals with Virginia residents* who 
leave the State with the intention of returning in order to 
marry in a State permitting Negro-white marriages and 
who then return and cohabit in Virginia as man and wife. 
By the terms of the evasion statute, a marriage of such a 
couple “ shall be governed by the same law as if it had been 
solemnized in this State.” Accordingly, such couples are 
(i) subject to the same criminal punishment as Negroes 
and whites who marry in Virginia, namely, the penalty 
imposed by Va. Code § 20-59 of imprisonment for not less 
than one nor more than five years, and (ii) their marriages 
are considered void under Virginia law. Va. Code § 20-57; 
Naim v. Naim, 197 Va. 80, 87 S. E. 2d 749 (1955) (In an 
annulment action, marriage held void where the Virginia 
couple had gone to North Carolina to evade the Virginia 
law). Furthermore, the terms “white person” and “ colored 
person” in the evasion statute are comprehensible, if at

# Unlike the situation in Naim v. Naim, 197 Ya. 80, 87 S. E. 2d 
749, vacated and remanded, 350 U. S. 891 (1955), aff’d, 197 Va. 
734, 90 S. E. 2d 849, appeal dismissed, 350 U. S. 985 (1956), 
there is no dispute that appellants were residents of Virginia at 
the time of their marriage and at all other times relevant to this 
litigation. Thus, there is no question here of the permissible appli­
cation of the evasion statute to non-residents of Virginia.



1 2

all, only by use of the definitions in other provisions of 
Virginia’s anti-miscegenation laws. (Va. Code § 20-54 de­
fines “white person” and §1-14 defines “ colored person”.)

Because appellants’ miscegenetie marriage is void under 
Virginia law, various outrageous civil effects can result: 
one spouse may be prevented from inheriting from his or 
her mate by other heirs who prove the forbidden inter­
racial nature of the marriage (see, e.g., In re Shun Taka- 
hashi’s Estate, 113 Mont, 400, 129 P. 2d 217 (1942)); par­
ticipants in such marriages can lose their marital rights 
under intestacy and similar statutes, Stevens v. United 
States, 146 F. 2d 120 (10th Cir. 1944), and the benefits of 
Social Security (see 42 U. S. C. § 416(h)(1),* of joint in­
come tax returns, and of workmen’s compensation—all of 
which are contingent upon a marital relationship. Toler v. 
Oaktvood Smokeless Coal Corp., 173 Va. 425, 4 S. E. 2d 364 
(1939). A husband may desert his mate and their children 
without the usual legal consequences and apparently free 
of any obligation of support. See generally G-reenberg, 
R ace R elations and A merican Law 348 (1959). The Lov- 
ings’ three children may be illegitimate, Greenhow v. James’ 
Executor, 80 Va. 636 (1885), even though a Virginia stat­
ute legitimatizes the issue of void marriages, and they 
may lose inheritance rights in their parents’ estates.

* For a recent example where a death gratuity usually payable 
to a widow of a U. S. military serviceman was not paid because the 
validity of anti-miscegenation laws remains in doubt see the letter 
of the Assistant Comptroller General of the United States dated 
January 6, 1965, which refused to authorize payment of arrears of 
pay and a death gratuity to the Negro widow of a deceased white 
soldier because the validity of their miscegenetie marriage which 
occurred in Texas “cannot be resolved on the basis of the current 
judicial decisions . . . ”  as quoted in Seidelson, Miscegenation Stat­
utes and the Supreme Court: A  Brief Prediction of What the 
Court Will Do and Why, Catholic U. L. Rev. 156, 157 (1966).



13

Even if there were no evasion statute (or if some tech­
nical ground could be found to invalidate only the evasion 
statute and leave the rest of Virginia’s anti-miscegenation 
scheme in effect), appellants’ situation would not be signifi­
cantly changed. Under Virginia law, their marriage is void 
for both criminal and civil law purposes because Virginia 
follows the established conflict of laws principle that the 
state of the domicile of the parties at the time of their 
marriage will refuse to recognize its validity if the mar­
riage is offensive to such State’s public policy. Kinney v. 
Commonwealth * 71 Va. 858 (1878); Creenhow v. James’ 
Executor,** 80 Va. 636 (1885); See generally R estatement, 
Conflict of L aws §§ 133-134 (1934); R estatement (S ec­
ond) Conflict of L aws § 132 (Ten. Draft No. 4-1957); 
Taintor, Marriage in the Conflict of Laws, 9 V and. L. R ev.

* In Kinney, the conviction of a Negro spouse of a white woman 
for illegal cohabitation with her was upheld by Virginia’s highest 
court even though the couple had been married in Washington, 
D. C. which recognized the validity of the marriage. The first Vir­
ginia evasion statute (Va. Acts of Assembly, 1877-78, ch. VII § 3 at 
p. 302) relating to Negro-white marriages had been enacted but was 
not in effect with respect to this case. Judge Christian in his opinion 
said that “ . . . without such statute, the marriage was a nullity . . . 
denounced by the public law of the domicile [Virginia] as unlawful 
and absolutely void . . . the law of the domicile will govern in such 
case, and when they return, they will be subject to all penalties, as 
if such marriage had been celebrated within the state whose public 
law they have set at defiance . . . connections and alliances so un­
natural that God and nature seem to forbid them, should be pro­
hibited by positive lawr, and be subject to no evasion.” At 865-66, 
869.

## In Greenhow, a miscegenetic marriage valid where performed 
in the District of Columbia was deemed void under Virginia law in 
a case holding the eleven children of such marriage to be illegiti­
mate. This holding with respect to the nullity of such a marriage 
was incorporated into a statute in 1887 by means of a provision 
that such marriages of Virginia residents outside of Virginia were 
to be governed by the same law as if the marriages were solemnized 
in Virginia. V a . Code A n n . § 2253 (1887).



14

607, 627-29 (1956). Tims the same civil effects of the mar­
riage would result and also appellants would he subject to 
criminal prosecution for illegal cohabitation,* Kinney v. 
Commonwealth, supra, § 18.1-193 (Y a. Code A n n . 1950, Vol. 
4, p. 253), or fornication, McPherson v. Commonwealth, 69 
Va. 939 (1877), §18.1-188 (V a. Code A n n . 1950, Vol. 4, p. 
253), or perhaps both.

The reality of Virginia’s statutory scheme prohibiting 
miscegenation is clear. Both the evasion statute (§ 20-58) 
and the basic prohibition of miscegenetic marriages (§20- 
54) serve and are necessary to effect the same unjustifiable 
purpose: to prohibit and penalize interracial marriages 
involving persons who after their marriage reside as man 
and wife in Virginia. We doubt that the basic prohibition 
would be invoked against a couple married in Virginia if 
they did not cohabit there as man and wife. Of course the 
evasion statute requires cohabitation as an essential ele­
ment of its proscribed crime. Nevertheless, any technical 
distinction between the statutes is academic. The con­
stitutionality of the evasion statute, as applied .. to ap­
pellants in light of Virginia’s clear public policy against 
miscegenation and the relevant conflict of laws principle, 
cannot be determined separately from a determination of 
the constitutionality of Virginia’s civil and criminal bans 
on interracial marriages celebrated in Virginia. There is 
no constitutional or other legal argument of substance 
which would justify allowing Virginia to deny the validity 
of an interracial marriage, under its civil or criminal law, 
if such marriage were celebrated in Virginia while pro-

m It should be noted that Virginia has no specific statute pro­
hibiting only interracial fornication or cohabitation. See, e.g., the 
Florida interracial cohabitation statute invalidated in McLaughlin 
v. Florida, 379 U. S. 184 (1964).



15

habiting Virginia from penalizing the marriage if the mar­
riage of Virginia residents took place outside of Virginia.

Accordingly, a holding that the evasion statute is in­
valid, on some limited ground, without reaching the basic 
question of the validity of Virginia’s bans on miscegenetic 
marriages, would seem disingenuous and incorrect under 
the circumstances. Of even more importance, such a hold­
ing would not do justice to appellants. Their marital life 
has been in continuous legal jeopardy for over eight and 
one-half years and their marriage, under settled Virginia 
law, with or without the evasion statute, is void. Therefore, 
they would be subject to further prosecution for the same 
acts that have caused their prior convictions, namely, the 
interracial nature of their marriage together with their 
cohabitation as man and wife in Virginia.

II.

The history of the Virginia anti-miscegenation laws 
shows they are relics of slavery and expressions of 
racism.

To understand that the Virginia anti-miscegenation laws 
at issue here are both relics of slavery and expressions of 
modern day racism which brand Negroes as an inferior 
race, it is necessary to consider their history.*

As Professor Wadlington has recently noted,** it is sur­
prising that Virginia which prides itself on the story of

* Counsel wish to thank Mr. Frank F. Arness for the use of his 
unpublished thesis which deals with the history of these laws and 
was written in partial fulfillment of the requirements for a master’s 
degree in history at Old Dominion College, Norfolk, Virginia.

** Wadlington, The Loving Case: Virginia’s Anti-Miscegenation 
Statute in Historical Perspective, 52 V a . L. Rev. 1189 (1966). 
(Hereafter cited as “ Wadlington” )



16

how one of her early white sons married an Indian princess* 
today maintains one of the strictest statutory bans on racial 
intermarriage. Virginia has enacted a great deal of anti- 
miscegenation legislation beginning in the seventeenth cen­
tury and spanning a period of nearly three centuries to 
1932 when the last enactment on this subject was passed.

Early History

The first Negroes arrived in the colony of Virginia in 
1619. Their numbers increased slowly. White indentured 
servants served as the principal source of manpower in 
the early colonial period before plantation owners recog­
nized the value of the Negro slave. See generally Bruce, 
E conomic H istory of V irginia in ti-ie Seventeenth Cen­
tury, Vol. I, Chap. IX (MacMillan & Co. 1896). As late as 
1673, white servants still outnumbered Negroes by four to 
one. R euter, T he A merican R ace P roblem: A Study of 
the Negro 136 (New York: Thomas Y. Crowell Company, 
revised ed. 1938) (Hereafter cited as “Reuter” ).

Generally, indentured white servants came from the low­
est social strata in England or elsewhere and the Virginia 
colonists considered them originally on the same level as 
the Indian slave or servant and the Negro. A  principal 
difference among persons of the servant class was their 
tenure of service; the white servant usually served out a 
seven-year contract while the Negro or Indian might be 
enslaved for life. As a result of their common status, this 
class intermixed to a considerable extent both within and 
outside the banns of marriage. Reuter, 134-138.

* If John Rolfe and Pocahontas were married in Virginia to­
day, they would be guilty of violating the anti-miscegenation law. 
V a . Code A n n . § 20-54.



17

Some of the earliest actions of the colonial govern­
ment involving miscegenation reflected religious prejudice 
against Christian-heathen intermixing. See Bruce, supra, 
Yol. II, pp. 109-110 and Wadlington, 1191. However, 
with the establishment of Negro slavery, economic reasons 
for restricting miscegenation became dominant. Slave­
owners wanted protection from the loss of their slave prop­
erty through intermarriage with a free white Christian 
by laws that all offspring of slaves with whites, whether 
free or indentured servants, would be deemed slaves.

By the 1660s, illegitimate births from relationships 
among Negro slaves and white masters presented prob­
lems primarily relating to the status of the children. A 
1662 Act provided that any child of an “Englishman” and 
a “negro woman” should be slave or free according to the 
condition of the mother. 2 Laws of Va. 170 (Hening 1823). 
This kind of legislation, according to some historians, 
led to intentional slave breeding by slave-owners.

At the time of the 1662 Act, there was nothing to pre­
vent interracial marriages of whites and Negroes. The 
colonial society and the church viewed any such marriages 
in a disparaging manner and in some cases mobs may have 
acted to apply extralegal punishment to the couples. 
Reuter, 137.

Apparently social pressure was insufficient to prevent 
such marriages, for in April of 1691, the Virginia Assembly 
passed the first law proscribing Negro-white marriages as 
part of “An Act for Suppressing Outlying Slaves.” 3 
Laws of Va. 86 (Hening 1823). One stated purpose of 
this Act was to prevent “ that abominable mixture and 
spurious issue which hereafter may arise” from interracial



18

unions, demonstrating that racial prejudice as well as eco­
nomic reasons led to the early miscegenation laws. The 
free white person marrying a Negro was to be banished 
from Virginia forever. (Considering the practical banish­
ment of the Lovings in 1959, Virginia’s policy has not 
changed much since 1691.) This same Act* provided that 
any English white woman who had a bastard by a Negro 
should pay the church wardens fifteen pounds or, in default 
of payment, she would be indentured for a term of five 
years. The child in each instance would be bound out by the 
church wardens until he or she reached thirty years of age.

In 1705, the Assembly eliminated the banishment pen­
alty for miscegenation and instead imposed a six-month 
prison sentence, without bail, and a fine. Ministers marry­
ing such persons were also penalized and, to this day, 
Virginia punishes a minister who performs such a mar­
riage by a fine, one-half of which goes to the informer. 
Va. C ode A nn , §20-60 (1960).

By the end of Virginia’s colonial period, Negroes with 
few exceptions were enslaved. Negro children by a white 
father were free or bond ^according to the condition of 
the Negro mother. White women, free or bond, were se­
verely penalized for bearing a child from a miscegenetic

* The primary purpose of this Act was to authorize the capture 
of “negroes, mulattoes and other slaves” who hide “ in obscure places 
killing hoggs and committing other injuries to the inhabitants” by 
local sheriffs and their deputies who were specifically authorized, 
if such slaves “shall resist, run away or refuse to deliver and sur­
render . . .  to kill and destroy such negroes, mulattoes and other 
slave or slaves by gunn or any otherwaise whatsoever.” If any slave 
were so killed, the owner was to receive “ four thousand pounds of 
tobacco by the publique” . At this time, slaves were legally con­
sidered to be personal property and treated the same as household 
goods, horses, cows, oxen and hogs. Bruce, supra,, Vol. II, pp. 
99-100.



19

union and such child was bound out in prescribed periods 
of servitude by the parish vestrymen. Finally, the leg­
islature had constructed a law punishing the free white 
partner of a miscegenetic marriage by both imprisonment 
and fine.

No change of significance occurred until the Code of 
1849 in which it was provided that any marriage between 
a white person and a Negro was absolutely void without 
further legal process. V a. Code ch. 109 § 1, Yol. I at 471 
(1849) (now § 20-57).

After the Civil War no essential changes wTere made in 
Virginia’s anti-miscegenation laws until the enactment of 
the Racial Integrity Act of 1924.# However, the first eva­
sion statute, the predecessor of Section 20-58 under which 
the Lovings were convicted, was passed in 1878 to deal 
with interracial couples leaving the State to marry in a 
jurisdiction which allowed their marriages and then re­
turning to live in Virginia even though the Virginia courts 
had treated such marriages as void without a statute. In 
the same year, for the first time, the penalty imposed on a 
party to a miscegenetic marriage was made clearly ap­
plicable to the Negro spouse. Also, the penalty was en­
larged to not less than two nor more than five years in the 
penitentiary.## Va. Acts of Assembly 1877-1878, ch. VII, 
§ 8 at 302 (now § 20-59). *

* Problems with respect to the definition of racial classifications 
and to the civil effects of miscegenetic marriages did occur but have 
no specific relevance here. See Wadlington, 1195-1199.

## The final Virginia statute on this subject passed in 1932 made 
the crime of interracial marriage a felony but reduced the minimum 
term of imprisonment to one year. Va. Acts of Assembly 1932, Ch. 
78 at 68 (now § 20-59).



2 0

Despite the existence of deterrent legislation, interracial 
sexual relationships continued and increased after the Civil 
War. Reuter, 141. The rising tide of mulatto offspring 
and the passing of many of them as whites motivated 
a tightening of the definition of Negro and enactment of 
stronger anti-miscegenation legislation. In the slave days, 
there had been essentially economic motivations for deny­
ing Negro slaves the legal right to marry. In fact, as 
previously indicated, no criminal penalties were imposed 
on the Negro partner of a miscegenetic marriage until 1878. 
With the end of slavery, unfortunately, new motivations 
arose which were purely racist and based on the theory that 
Negroes and other non-whites are members of inferior 
races.

Racial Integrity Act of 1924

After World War I, the United States experienced a 
period of intolerance and racial animosity expressed in the 
spread of all forms of hate groups and super-patriotic 
orders with dogmas of “yellow peril”, “mongrelization of 
the white race” and “ un-Americanism”. In fact, at the time 
of passage of the Racial Integrity Act of 1924, racists 
predicted the destruction of the white race if Negro-white 
miscegenation and the tide of immigrants arriving in the 
United States each year were not suppressed. Earnest 
Sevier Cox, in his book entitled W hite A merica (Rich­
mond: White America Society, 1923), posed this alleged 
threat to America and suggested federally supported colo­
nization and uniform legislation barring the mixing of the 
races in any form.

White racial superiority, a carry-over in the South from 
slavery days, formerly had rested primarily on observa­



2 1

tions by 19th. century scientists and questionable Biblical 
texts. The authority which the new and popular science of 
eugenics provided for this concept was eagerly received in 
Virginia. Originally eugenics had dealt with the breeding 
of animals and the disclosure of their heredity traits. Race­
conscious Americans seized upon immature conclusions of 
eugenicists and subjected them to an overdose of racial 
pride embodied in the concept of “Anglo-Saxonism”. New 
Englanders and Southerners alike talked about “mongrel- 
ization of the white race” and “ race suicide” . Racial preju­
dice increased; “Anglo-Saxon clubs of America” sprang up 
throughout Virginia and sponsored legislation designed to 
halt the mixing of the races in Virginia.*

On February 7, 1924, on petition from these organiza­
tions, and in response to the racist sentiment of the time, 
a number of State senators initiated the bill which ulti­
mately became the Racial Integrity Act of 1924, and was 
originally entitled “A Bill to Preserve the Integrity of the 
White Race” .* ** Members of both houses of the General 
Assembly displayed a great interest in the bill. The House 
of Delegates invited John Powell, a renowned Virginia 
pianist and local racist, to speak before it on the dangers 
of “ racial amalgamation” . According to the Richmond 
Times Dispatch of February 18, 1924, the delegates se­
lected Powell because of his knowledge of “ ethnological 
problems and conditions in various parts of the world and

# Richmond Times Dispatch, February 17, 1924, p. 6. At the 
time of passage of the Racial Integrity Act of 1924, there were 
Anglo-Saxon clubs in Virginia at the University of Virginia, Col­
lege of William and Mary, Virginia Military Institute, Washington 
and Lee College and Randolph Macon College. Clubs could also be 
found at Richmond and other cities and towns of the State.

** Journal of the Senate of the Commonwealth of Virginia (Rich­
mond: Superintendent of Public Printing, 1924), p. 135.



2 2

Ms wide acquaintance among European authorities and 
statesmen”. Powell was very much involved in the national 
eugenics movement and had, himself, organized many of 
the Virginia Anglo-Saxon clubs which petitioned the As­
sembly to take action to preserve the white race. Powell 
stressed to a “well-filled gallery” the need to preserve 
the white race from contamination with non-white blood, 
and observed that when a white race absorbed the Negro 
through amalgamation its civilization disintegrated. 
Powell was assisted in his efforts by Dr. W. A. Plecker, 
the State Registrar of Vital Statistics, who supplied “vital 
statistics” to show confusion in Virginia concerning racial 
origins and the necessity for a stronger anti-miscegenation 
law to preserve racial integrity. Richmond Times Dispatch, 
February 13, 1924, p. 1. In response to Powell’s address 
and the statistics of Dr. Plecker, the House introduced a 
bill of its own only three days after Powell’s address.

Thereafter, apparently without significant debate or 
controversy between the Senate and the House of Dele­
gates, the Act, technically entitled “An Act to Preserve 
Racial Integrity” (Va. Acts of Assembly, 1924, ch. 371), 
passed the Senate on February 27, 1924, and the House on 
March 8,1924, and was approved by the Governor on March 
20, 1924.

It in part repeated earlier prohibitions on miscegenation 
but also effected “ a sweeping change in the scope of the 
law . . .  by keying the miscegenation provisions to a new 
and very narrow definition of a ‘white person’.” Wadling- 
ton, 1200. Under this new definition, a white person was 
forbidden to marry anyone other than another white person 
defined to be one “who has no trace whatsoever of any



23

blood other than Caucasian . . . ” (now § 20-54).* For 
the first time, Virginia prohibited the marriage of whites 
with Mongoloids and other non-Negro races as well as 
Negroes. Earnest Sevier Cox, in his book, T he South ’s 
P art in Mongbelizing the Nation (Richmond: White 
America Society, 1926), called the Virginia law “probably 
the most perfected expression of the white racial ideal 
since the institution of caste in India some four thousand 
years ago” . At p. 98.

Other new provisions of the 1924 legislation which re­
main in force today remind one of the laws of Nazi Ger­
many: The State Registrar of Vital Statistics was em­
powered to prepare a form so that persons could certify 
to their “ racial composition” to local registrars who could 
issue duplicate certificates of racial composition, one for 
the person registering and one for the State Registrar 
(now §20-50). The knowing or willful falsification of a 
registration certificate as to color or race was made a 
felony punishable by one year in the penitentiary. A  mar­
riage license was not to be issued unless the issuing official 
had “ reasonable assurance” that the statements of the 
parties as to color were correct, and the Act assigned the 
burden of proof, if a question should arise, to the persons 
applying for the license (now § 20-53).

All statutes relating to racial intermarriage which were 
in effect in 1924 were made applicable to marriages pro­
hibited by the new provisions. Thus the 1924 act carried 
forward the provision making Negro-white marriages void,

* There was an exception to this definition designed apparently 
to protect the descendants of John Rolfe and Pocahontas which 
deemed persons “who have one-sixteenth or less of the blood of the 
American Indian and no other non-Caueasic blood” to be white 
persons.



24

the civil and criminal applicability of the evasion provision 
[Section 20-58], and the criminal penalties applicable to 
the parties to an interracial marriage and to the minister 
performing the ceremony.

III.

Anti-miscegenation laws cause immeasurable social 
harm.

There is still another history to be told; it lurks beneath 
the surface of the “written” history we have examined. 
This is the story of what these laws have done to our 
entire people. Unhappily this is the familiar chronicle of 
race relations in our nation. Here briefly is some intima­
tion of what the miscegenation laws—born out of oppres­
sion and hatred—contribute to our legacy.

The high degree of racial mixture that exists in the 
United States—estimates of the ratio of Negro Americans 
with at least one known white forebear run as high as 
72 to 83 per cent, P ettigrew, A P rofile of the Negro 
A merican 68 (1964)—has occurred predominantly in the 
South under illicit conditions fostered by the miscegena­
tion laws. Of more relevance, this racial mixing was 
almost entirely in the context of illicit exploitative sexual 
intercourse; white male of Negro female. Myrdal, A x  
A merican D ilemma, Chapter 5 especially at pp. 1204-1207 
(1962) (Hereafter cited as “Myrdal” ) ;* Cash, T he Mind of 
the S outh 87-88 (1941).

* Throughout this section, we often utilize this definitive treatise 
on the Negro problem in America by the eminent Swedish social 
economist, Gunnar Myrdal.



This history of illicit sex relationships conditions, psycho­
logically and sociologically, the entire pattern of American 
race relations. Nor can its importance be overemphasized 
since “ [t]o the ordinary white American the caste line 
between white and Negro is based upon, and defended by, 
the anti-amalgamation doctrine”, and “ [moreover this] . . . 
doctrine, more than anything else, gives the Negro problem 
its uniqueness among other problems of lower status groups, 
not only in terms of the intensity of feeling but more 
fundamentally in the character of the problem.” Myrdal, 
54 (our emphasis). This socio-psychological taproot of 
American racial prejudice is nowhere more vividly de­
scribed than in Lillian Smith’s great work, K illers of t h e  

Dream, in the chapter entitled “ Three Ghost Stories” (1961 
ed.), and in W . J. Cash’s, T he Mind of t h e  South (1941).

Considering such accounts, it is difficult to avoid Myrdal’s 
conclusion that

[t]he fixation on the purity of white womanhood, and 
also part of the intensity of emotion surrounding the 
whole sphere of segregation and discrimination, are 
to be understood as the backwashes of the sore con­
science on the part of white men for their own or 
their compeers’ relations with, or desires for, Negro 
women. Myrdal, 591.

The Negro participant in this abnormal sex relationship 
did not escape psychologically unscathed. Although iso­
lating psychogenic factors is difficult, there can be no doubt 
of the profound adverse effect racial discrimination has had 
on the individual personality traits of the Negro. See Petti­
grew, supra at Chapter I, “ The Kole and Its Burdens” 
(1964); cf., Brown v. Board of Education, 347 U. S. 483



26

(1954). It is a frightful thing, to use one example, if 
Miss Smith is right when she claims “ . . . there is a 
burning blasting scorn of white men growing in the 
minds . . .  of nearly every woman of the colored race. . . . ” 
Smith, supra at 109. Any social construct which can en­
gender such group hatred and personal antagonism is 
wrong.

Admitting the futility of attempts to expunge the sins 
of the past, Virginia’s anti-miscegenation laws (and those 
of sixteen Southern and border States) stand as a present 
day incarnation of an ancient evil. As such, these laws do 
not simply bar interracial marriage, they perpetuate and 
foster illicit exploitative sex relationships. Moreover, these 
laws are explicitly designed to that end. To fail to under­
stand such invidious purpose is to doom the reasonable 
man to an unrequited search for logic, viz:

. . . the relative license of white men to have illicit 
intercourse with Negro women does not extend to for­
mal marriage. The relevant difference between these 
two types of relations is that the latter, but not the 
former, does give social status to the Negro woman 
and does take status away from the white man. These 
status concerns . . . are functions of the caste ap­
paratus which, in popular theory, is itself explained 
as a means of preventing intermarriage, the whole 
theory [thus] becoming largely a logical circle. Myrdal, 
590 (our emphasis).

The relevance of such purpose to our scope of inquiry 
here—the present day impact of these laws—seems clear.



27

Cutting through the psychological overlay and rationali­
zations, Myrdal explains that:

. . . The great majority of non-liberal white South­
erners utilize the dread of ‘intermarriage’ . . .  to jus­
tify discriminations which have quite other and wider 
goals than the purity of the white race. . . . what white 
people really want is to keep the Negroes in a lower 
status. Myrdal, 590-91.

And enlarging on the same theme he adds:

The persistent preoccupation with sex and marriage 
in the rationalization of social segregation and dis­
crimination against Negroes is . . .  an irrational escape 
on the part of the whites from voicing an open demand 
for difference in social status between the two groups 
for its own sake. Ibid.

In short, the basis of harm that makes this Court’s 
warrant equal to the ultimate evil of these laws is that 
they constitute an infliction of indignity upon every person 
cast among others as not good enough to marry a “white 
person”.

Paradoxical as it may seem that this most blatant ascrip­
tion of inferior status is the last to be condemned by this 
Court, it is fitting that the opportunity to make the con­
demnation universal presents itself. The miscegenation 
laws, understood as the paradigm of “ all of these thousand 
and one precepts, etiquettes, taboos, and disabilities in­
flicted upon the Negro [having the] common purpose: to 
express the subordinate status of the Negro people and 
the exalted position of the whites,” Myrdal, 66, and func­



28

tioning chiefly as the State’s official symbol of a caste 
system, must be dealt with accordingly.

IV.

The legislative history of the Fourteenth Amendment 
does not exempt anti-miscegenation laws from its ap­
plication.

The only substantive argument advanced by the Com­
monwealth of Virginia in its Statement opposing the not­
ing of jurisdiction by this Court was that the legislative 
history of the Fourteenth Amendment conclusively estab­
lishes that it was not intended to apply to miscegenation 
laws. Eclectic statements from the debates on the bill 
which became the Civil Eights Act of 1866 are used to 
support this thesis, which was also advanced in the School 
Segregation Cases, and a law review article, Pittman, The 
Fourteenth Amendment: Its Intended Effect on Anti- 
Miscegenation Laws, 43 N. C. L. R ev. 92 (1964). (A  more 
recent article in support of the same thesis, which was not 
cited by the Commonwealth, is Avins, Anti-Miscegenation 
Laws and the Fourteenth Amendment: The Original In­
tent, 52 V a. L. R ev. 1224 (1966).)

A close examination of such statements indicates that 
many legislators who felt the Civil Rights Act of 1866 was 
not intended to reach miscegenation laws based their views 
on the now discredited equal application theory (later enun­
ciated as a judicial construction of the equal protection



29

clause in Pace v. Alabama, 106 U. 'S. 583 (1883)). For 
example, the Commonwealth quotes Senator Trumbull as 
follows (at p. 8 of its Statement):

How does this interfere with the law of Indiana pre­
venting marriages between whites and blacks'? Are 
not both races treated alike by the law of Indiana? 
Does not the law make it just as much a crime for a 
white man to marry a black woman as for a black 
woman to marry a white man, and vice versa? I pre­
sume there is no discrimination in this respect, and 
therefore your law forbidding marriages between 
whites and blacks operates alike on both races. This 
bill does not interfere with it. If the negro is denied 
the right to marry a white person, the white person 
is equally denied the right to marry the negro. I see 
no discrimination against either in this respect that 
does not apply to both. . . . (our emphasis)

But Senator Trumbull’s presumption has proven incorrect; 
equal application of inequalities based on race is uncon­
stitutional. McLaughlin v. Florida, 379 II. S. 184, 188 
(1964).

If such legislative history—whatever its real meaning 
assuming one could read the minds of the legislators from 
the historical record—were determinative of the scope 
of the Fourteenth Amendment, then it might not have been 
applicable to school segregation, jury service and other 
forms of segregation. See, e.g., Brown v. Board of Educa­
tion, 347 U. S. 483 (1954); Strauder v. West Virginia, 100 
U. S. 303 (1880); Norris v. Alabama, 294 U. S. 587 (1935);



30

Biekel, The Original Understanding and the Segregation 
Decision, 69 H arv. L. R ev. 1, 64-65 (1956).

A correct appraisal of the legislative history of the 
broad guarantees of the Fourteenth Amendment for pur­
poses of constitutional adjudication is that they were open- 
ended and meant to be expounded in light of changing 
times and circumstances. See Biekel, swpra, at 64 (“But 
the relevant point is that the Radical leadership succeeded 
in obtaining a provision whose effect was left to future 
determination” . ) ; Kelly, Clio and the Court: An Illicit Love 
Affair, 1965 Sup. Ct. R ev. 119, 145 (Evidence from the 
debates indicates that Bingham and others “hoped that the 
prohibitions on racial discrimination would have an open- 
ended character, i.e., would grow through judicial interpre­
tation and congressional legislation with the progress of 
time” ) ; Wechsler, Toward Neutral Principles of Constitu­
tional Law, 73 H arv. L. R ev. 1, 32 (1959) (“ . . . the words 
[of the equal protection clause] are general and leave room 
for expanding content as time passes and conditions 
change” ) ; Burton v. Wilmington Parking Authority, 365 
U. S. 715, 722 (1961) (“Because the virtue of the right to 
equal protection of the laws could lie only in the breadth 
of its application, its constitutional assurance was reserved 
in terms whose imprecision was necessary if the right were 
to be enjoyed in the variety of individual-state relations 
which the Amendment was designed to embrace” ).

In short, the applicability in 1967 of the equal protection 
and due process clauses to miscegenation laws cannot be 
ascertained by a resort to doubtful legislative history but 
must be determined by this Court, utilizing all appropriate 
means of constitutional adjudication and bearing in m ind 
Chief Justice Hughes’ admonition:



31

If . . . the great clauses of the Constitution must 
be confined to the interpretation which the framers, 
with the conditions and outlook of their time, would 
have placed upon them, the statement carries its own 
refutation. It was to guard against such a narrow 
conception that Chief Justice Marshall uttered the 
memorable warning—‘we must never forget that it is 
a constitution we are expounding’ (McCulloch v. Mary­
land, 4 Wheat, 316, 407) . . . Home Bldg. & Loan 
Ass’n v. Blaisdell, 290 U. S. 398, 442-43 (1934).

V .

The Virginia anti-miscegenation laws are racially dis­
criminatory and deny appellants equal protection of the 
laws.

There can be no doubt that the conviction of the Lovings 
was because Mrs, Loving is a Negro. But for this fact, and 
that Bichard Loving is a “white person” under Va. Code 
§ 20-54, no crime would have been committed. Except for 
the difference of color, the state never raised any objec­
tion to the marriage. If both had been white or both had 
been other than white, their marriage would be valid.

In Brown v. Board of Education, 347 U. S. 483 (1954), 
this Court struck down segregation in public schools as a 
violation of equal protection. Whether Brown means that 
(i) the Fourteenth Amendment prohibits the intentional 
disadvantaging of Negroes as Negroes by any form of 
legalized segregation (Black, The Lawfulness of the Segre­
gation Decisions, 69 Y ale L. J. 421 (1960)) or, (ii) there can 
be no rational basis for a statutory classification which 
stamps Negroes as inferior (Applebaum, Miscegenation



32

Statutes: A Constitutional and Social Problem, 53 Geo. 
L. J. 49, 86 (1965)) as the Virginia anti-miscegenation 
laws do or, (iii) a state statute cannot constitutionally 
deny Negroes the freedom to associate with whites 
(Weehsler, Toward Neutral Principles of Constitutional 
Law, 73 Harv. L. R ev. 1, 34 (1959)), we agree with Pro­
fessor Bickel that the principle of the Brown case should 
control the constitutionality of miscegenation laws. B ickel, 
T he Least Dangerous B ranch 71 (1962).

In fact, miscegenation laws seem more clearly uncon­
stitutional than school segregation since (i) the right of 
two consenting, competent adults to marry each other seems 
even more fundamental than the right of students to attend 
an integrated public school, (ii) there clearly is no equal 
alternative and (iii) both parties to an interracial marriage 
wish to associate or join together as man and wife, while 
in Brown, arguably, the white students, or some of them, 
did not wish to associate w7ith the Negro students.

When a Negro is denied the right, solely because he 
is a Negro, to marry a white woman who wishes to marry 
him, the law discriminates against him and denies him as 
well as the woman equal protection of the laws. While mis­
cegenation laws have been upheld in the past by use of the 
“ equal application” theory of Pace v. Alabama, that these 
laws do not discriminate because both whites and Negroes 
are prohibited from intermarrying (see, e.g., Jackson v. 
City ami County of Denver, 109 Colo. 196, 124 P. 2d 240 
(1942)), this theory “ . . . represents a limited view7 of 
the Equal Protection clause which has not withstood analy­
sis in the subsequent decisions of this Court.” McLaughlin 
v. Florida, 379 U. S. 184,188 (1964).



33

Statutory distinctions based on race alone have been 
struck down in many cases involving rights much less 
substantial than the right to marry. See, e.g., Hamm v. 
Virginia State Board of Elections, 230 F. Supp. 156 (E. D, 
Va.), aff’d per curiam, 379 U. S. 19 (1964) (designation of 
race in voting and property records); Anderson v. Martin, 
375 U. S. 399 (1964) (designation of race on nomination 
papers and ballots); Watson v. City of Memphis, 373 U. S. 
526 (1963) (segregation in public parks and playgrounds); 
Oyama v. California, 332 U. S. 633 (1948) (racial restric­
tion involving alienation of land) ; Takahashi v. Fish & 
Game Commission, 334 U. S. 410 (1948) (racial restriction 
on commercial fishing licenses); Yick Wo v. Hopkins, 118 
U. S. 356 (1886) (racial restriction on licensing of laun­
dries). And this Court has enunciated as the law of the 
land that:

Distinctions between citizens solely because of their 
ancestry are by their very nature odious to a free 
people whose institutions are founded upon the doc­
trine of equality. For that reason, legislative classi­
fication or discrimination based on race alone has 
often been held to be a denial of equal protection. 
Hirabayashi v. United States, 320 U. S. 81, 100 (1943).

In fact, “ classification based on race alone is inherently 
discriminatory” . Horsey v. State Athletic Comm., 168 F. 
Supp. 149, 151 (E. D. La. 1958), aff’d per curiam, 359 
U. S. 533 (1959).

In McLaughlin v. Florida, supra, this Court held that 
there must be “ some overriding statutory purpose requir­
ing the proscription of the specified conduct when engaged 
in by the white person and a Negro, but not otherwise” ,



34

379 IT. S. at 192, and also stated, in effect, that the burden 
of demonstrating this overriding purpose is on the State 
because:

. . . the central purpose of the Fourteenth Amend­
ment was to eliminate racial discrimination emanating 
from official sources in the States. This strong policy 
renders racial classifications ‘constitutionally suspect’ 
. . . and ‘in most circumstances irrelevant’ to any con­
stitutionally acceptable legislative purpose . . .  379 
U. S. at 192.

At least two members of this Court have recognized 
that there can be no such “ overriding statutory purpose” 
to justify a miscegenation law:

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. (Mr. Justice Stewart, joined by 
Mr. Justice Douglas, concurring in McLaughlin, 379 
U. S. at 198.)

The Supreme Court of Appeals of Virginia upheld the 
miscegenation laws in this case (R. 25) by reliance on its 
earlier decision in Naim v. Nairn, 197 Va. 80, 87 S. E. 2d 
749 (1955). In Naim, the purposes of these laws were set 
forth as follows:

We are unable to read in the Fourteenth Amend­
ment to the Constitution, or in any other provision of 
that great document, any words or any intendment 
which prohibit the State from enacting legislation to 
preserve the racial integrity of its citizens, or which 
denies the power of the State to regulate the marriage



35

relation so that it shall not have a mongrel breed of 
citizens. We find there no requirement that the State 
shall not legislate to prevent the obliteration of racial 
pride, but must permit the corruption of blood even 
though it weaken or destroy the quality of its citizen­
ship. . . . 87 S. E. 2d at 756.

Of course the maintenance of racial purity or integrity is 
a meretricious basis for these laws for there is no evidence 
to support the existence of so-called “pure” races. M on­
tagu, Man ’s Most Dangerous My t h : T he F allacy of R ace 
(4th ed. 1964); see authorities discussed in Weinberger, 
A Reappraisal of the Constitutionality of Miscegenation 
Statutes, 42 Cornell L. Q. 208, 217 (1957). The idea 
of a pure race is a subterfuge to cloak ignorance of the 
phenomenon of racial variation.

Even if racial purity were a constitutionally acceptable 
purpose, the Virginia laws are not reasonably calculated 
to effect this purpose. The only race kept “pure” is the 
Caucasian. This is because the Virginia laws are not de­
signed to preserve the purity of races but, as the original 
name* of Virginia’s 1924 Racial Integrity Act indicates and 
its legislative history affirms, to preserve only the integrity 
of one group: members of the so-called “White” ** or 
“Anglo-Saxon Race” . A  person of Chinese ancestry, for 
example, is not included within the definition of “ colored

* “A  Bill to Preserve the Integrity of the White Race.” See p. 21 
of this Brief.

## jjior a persuasive discussion of the fact that there is no white 
race and never has been one see “A Four-Letter Word That Hurts” 
by anthropologist, Morton H. Fried, in Saturday Review, October 
2, 1965.



36

persons” [Va. Code § 1-14], or “white persons” [Ya. Code 
§ 20-54]. Tims the marriage of a Chinese and a “white 
person” would be unlawful under Va. Code § 20-54, Naim 
v. Naim, 197 Va. 80, 87 S. E. 2d 749 (1955). On the other 
hand, a marriage between a Chinese and a “ colored person” 
would be neither unlawful nor subject to prosecution. Cer­
tainly this is not equal protection. In fact, Virginia’s con­
cept of “ race” , based on statutory definitions which are 
a combination of legal fiction and genetic nonsense, is a 
social rather than a scientific concept, designed to preserve 
the social status of Virginia’s politically dominant group.

The other articulated legislative purpose is the preven­
tion of “ corruption of the blood” from racial intermixing 
which would “weaken or destroy the quality of its [Vir­
ginia’s] citizenship” . To assume this is a valid legislative 
purpose—as the highest Virginia court did—which justifies 
miscegenation laws is not enough to meet the State’s bur­
den with respect to laws which on their face discriminate 
on the basis of race or color. Virginia has not presented, 
and we submit cannot present, reputable scientific evidence 
to prove that a person of mixed blood is somehow “ inferior” 
in quality to one of racial purity, assuming arguendo that a 
person of racial purity such as a pure Caucasian exists.* 
Most serious students of anthropology do not even consider 
this question a present problem for research, agreeing that 
the races of the world are essentially equal in native ability 
and capacity for civilization and that group differences are 
for the most part cultural and environmental, not heredi­

* Even if reliable scientific evidence could be presented to sup­
port an inferior race theory, the State’s burden would not be met. 
The possibility of less superior but healthy progeny of interracial 
couples would not justify the serious restriction on personal liberty 
effected by miscegenation laws prohibiting interracial marriages.



37

tary. See, e.g., T he R ace Question and Modern Science: 
T he Statement on the Nature op R ace and R ace D iffer­
ences, Article 7 (UNESCO, 1952).

As for the progeny of racial intermixing, there is not a 
single anthropologist teaching at a major university in the 
United States who subscribes to the theory that Negro- 
white matings cause biologically deleterious results. See 
letter to editor from members of Department of Anthro­
pology, Columbia University, N. Y. Times, December 15, 
1964. On the contrary, some conclude that, because of a 
certain hybrid vigor, interracial marriage may be desirable 
and the offspring superior, citing the Hawaiian population, 
among others, to support this view. See Shapiro, R ace 
Mixture (UNESCO, 1965), and the authorities discussed in 
Cummins & Kane, Miscegenation, The Constitution and 
Science, 38 D icta 24, 47-49 (1961).

We will not postulate unarticulated legislative purposes.* 
In the final analysis, these laws are unjustifiable relics 
of slavery—initially passed to foster that peculiar and dis­
tasteful institution, and re-enacted in their present form 
as part of the surge of racial antagonism and intolerance 
of the 1920’s. They deny Negroes and other non whites equal 
protection of the law and stamp them as inferior citizens.

# Judge Bazile in his opinion below gave the following religious 
justification for miscegenation laws which requires no comment: 

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 (R, 16).



V I.

The Virginia anti-miscegenation laws violate the due 
process clause of the Fourteenth Amendment.

Marriage is perhaps the most important and most per­
sonal of all human relationships. We think it clear that 
the “ liberty” which is protected by the due process clause 
of the Fourteenth Amendment includes the right to marry. 
Meyer v. Nebraska, 262 IT. S. 390, 399 (1922) (dictum). 
Justice Traynor so held in his opinion in Peres v. Sharp, 
32 Cal. 2d 711, 198 P. 2d 17 (1948) {sub nom. Peres v. 
Lippold), which invalidated California’s anti-miscegenation 
statute. In Skinner v. Oklahoma, 316 U. S. 535, 541 (1942), 
this Court described marriage as “ one of the basic civil 
rights of man” . See generally Applebaum, Miscegenation 
Statutes: A Constitutional and Social Problem, 53 Geo. L. J. 
49, 67-68 (1964).*

The recent holding in Griswold v. Connecticut, 381 U. S. 
479 (1965), that the privacy of the marital relationship 
is a constitutionally protected freedom—whether under 
the rubric of a right of privacy or under the concept of 
ordered liberty embodied in the due process clause, Palko 
v. Connecticut, 302 U. S. 319 (1937)—signifies that the 
right to marry is itself protected from arbitrary govern­
mental interference by the basic guarantees of our Con­
stitution. Furthermore, the right to marry, regardless of 
race or color, may appropriately be deemed part of a 
broader constitutional freedom of association as enun-

* It should he noted that the United States has joined with other 
members of the General Assembly to vote in the United Nations 
for the adoption of the Universal Declaration of Human Rights 
which provides in Article 16.1:

“Men and women of full age, without any limitation due 
to race, nationality, or religion, have the right to marry and 
to found a family.”



39

ciated in Griswold by Mr. Justice Douglas and previ­
ously recognized to some extent in NAAGP v. Alabama, 
357 U. S. 449 (1958), and NAACP v. Button, 371 U. S. 415, 
430-31 (1963).

Of course the right to rnarry is not an absolute right and 
a State may restrict it in certain circumstances, for example, 
by imposing reasonable age and health limitations and pro­
hibiting incestuous or polygamous marriages. The question, 
however, as in the equal protection area, is whether the anti­
miscegenation statute has a legitimate legislative purpose 
and whether the manner of regulation bears a reasonable 
relationship to such purpose. See, e.g., Nebbia v. New York, 
291 U. S. 502, 525 (1934); Bolling v. Sharpe, 347 U. S. 497, 
499-500 (1954) (“ Segregation in public education is not rea­
sonably related to any proper governmental objective, and 
thus it imposes on Negro children of the District of Colum­
bia a burden that constitutes an arbitrary deprivation of 
their liberty in violation of due process.” ) ; Buchanan v. 
Warley, 245 U. S. 60 (1917).

The Virginia anti-miscegenation laws have no legitimate 
governmental objective. Their enforcement deprives appel­
lants of personal liberty—their right to marry—without 
due process of law just as it also denies them equal pro­
tection of the laws.

CONCLUSION
For the foregoing reasons, Sections 20-58 and 20-59 of 

the Virginia Code should be held unconstitutional, and this 
Court should make clear that neither Virginia nor any 
other State can constitutionally prohibit or penalize inter­
racial marriages.

The elaborate legal structure of segregation has been 
virtually obliterated with the exception of the miscegena­



40

tion laws. White racists can still point to these laws to 
support their appeal to the ultimate superstition fostering 
racial prejudice—the myth that Negroes are innately in­
ferior to whites. There are no laws more symbolic of the 
Negro’s relegation to second-class citizenship. Whether or 
not this Court has been wise to avoid this issue in the past, 
the time has come to strike down these laws; they are 
legalized racial prejudice, unsupported by reason or morals, 
and should not exist in a good society.

Respectfully submitted,

B ernard S. Cohen

P hilip J. H irschkop

110 North Royal Street 
Alexandria, Virginia

Attorneys for Appellants

W illiam D. Zabel 
52 Wall Street 
New York, New York

A rthur L. B erney 
67 Winthrop Road 
Brookline, Mass.

Marvin M. K arpatkin

Melvin L. W ulp

156 Fifth Avenue 
New York, New York

David Carliner

1424 16th Street, N.W. 
Washington, D. C.

Of Counsel



R E C O p W

®S MORTOW S7Ber? 
WKW YORK 14, 8J, *

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