McLaughlin v. Florida Jurisdictional Statement

    Isr THE

#nprattT (to r t  xs! tlî  litltpit
October Term, 1963 

No.................

Dewey M cL aughlin and Connie H offman, 
also known as Connie Gonzalez,

Appellants,

T he State of F lorida,
Appellee.

ON appeal prom the supreme court of the
STATE OF FLORIDA

JURISDICTIONAL STATEMENT

Jack Greenberg
J ames M. Nabrit, III
L eroy D. Clark

10 Columbus Circle 
New York, New York

R obert R amer
305 N.W. 27th Avenue 
Miami, Florida

H. L. Braynon
802 N.W. Second Avenue 
Miami, Florida

G. E. Graves, Jr.
802 N.W. Second Avenue 
Miami, Florida

Attorneys for Appellants
Louis H. P ollak 
W illiam T. Coleman, Jr.

Of Counsel



I N D E X

PAGE

Citation to Opinion Below ............................................... 2

Jurisdiction ..........................................................................  2

Constitutional and Statutory Provisions Involved .... 2

Questions Presented........~..................................................  4

Statement ................- ...... ............. ........... ...........................  4

How The Federal Questions Were Raised and Decided 6 

The Questions Presented Are Substantial ................... 9

I. The Court Below Affirmed Racially Discrimina­
tory Criminal Convictions Under an Expressly 
Racial Statute in Mistaken Reliance Upon Pace 
v. Alabama, 106 U. S. 583. However, if Pace 
Is Deemed Controlling, It Should No Longer 
Be Followed Because It Is Inconsistent With 
Many Subsequent Decisions of This Court .... 9

II. Appellants’ Conviction Denied Them Due Proc­
ess and Equal Protection of the Laws Under 
the Fourteenth Amendment in That a Com­
mon Law Marriage Was Held to Be Unavail­
able as a Defense to the Crime Because of a 
Florida Law Declaring Interracial Marriages 
Null and V o id .................................................... —  13

III. Appellants Were Denied Due Process of Law 
Under the Fourteenth Amendment Because 
the Statute Under Which They Were Convicted 
Was Vague and Indefinite ..................................  16

Conclusion 19



A ppendix ..................................................................................... la

Opinion Below   ................................................ —■ la

Final Judgment Denying Rehearing .....................  5a

T able of Cases

Abington School District v. Schempp, 374 U. S. 203 .... 11

Bolling v. Sharpe, 347 U. S. 497 ....................................... 15
Brown v. Board of Education, 347 U. S. 483 ................... 11
Buchanan v. Warley, 245 U. S. 60 ...........................10,12,14

Chaachow v. Chaachow, 73 So. 2d 830 (1954) ...............  13

Dorsey v. State Athletic Commission, 168 F. Supp.
149 (E. D. La. 1958) ......................................................  11

Edwards v. California, 314 U. S. 160............................... 11

Gayle v. Browder, 352 U. S. 903, aff’g 142 F. Supp.
707 (M. D. Ala. 1956) ................................................... 11

Gibson v. Mississippi, 162 U. S. 565 ................................. 10
Goss v. Board of Education, 373 U. S. 683 ...................  11

Hill v. U. S. ex rel. Weiner, 300 U. S. 105 ...................  12
Holmes v. Atlanta, 350 U. S. 879, rev’g 223 F. 2d 93 

(5th Cir. 1955) ................................................................  11

Jackson v. Alabama, 348 U. S. 888 ................................. 14

Lanzetta v. New Jersey, 306 U. S. 451..... .......................  18
Largent v. Texas, 318 U. S. 418 ......................................  2
Louisiana v. NAACP, 366 IT. S. 293 ............................... 17

ii

PAGE



I l l

Mapp v. Ohio, 367 U. S. 643 ........................................... 15
Maynard v. Hill, 125 TJ. S. 190 ....................................... 15
Meyer v. Nebraska, 262 IT. S. 390 .................... ..............  15
Moore v. Missouri, 159 IT. S. 673 ..................................... 12

N A A OP v. Alabama, 357 U. S. 449 ................................... 16
Naim v. Naim, 350 U. S. 891 (1955), app. dism. 350

U. S. 985 ........... ........ ...................... -........ -....................  14
Navarro v. Baker, 54 So. 2d 59 (1951) ...........................  13

Pace v. Alabama, 106 U. S. 583 (1883) .......7, 8, 9,11,12,14
Perez v. Lippold, 32 Cal. 2d 711, 198 P. 2d 17 (1948) 14
Peterson v. Greenville, 373 TJ. S. 244 ............................  10
Plessy v. Ferguson, 163 IJ. S. 537 — ................ ................U
Poe v. Ullman, 367 O. S. 497 ..................... -....................  15
Public Utilities Commission v. Poliak, 343 TJ. S. 451 .... 15

Reynolds v. United States, 98 U. S. 145 ......................— 15
Robinson v. California, 370 U. S. 660 ..... .........................  10

Shelley v. Kraemer, 334 U. S. 1 .............. ...... .................  12

Williams v. Bruffy, 96 U. S. 176 ..................................... 2

Statutes Involved:

Ala. Code, tit. 14, §360 ......... ....................................  12

Ark. Stats. Ann. §41-806 ......................................... - 12

Fla. Stat. Ann. §1.01(6) ..................................3,4,16,18

Fla. Stat. Ann. §741.11 ..... .........................................3,13

Fla. Stat. Ann. §798.03 ....................................-....... -  12

PAGE



IV

Fla. Stat. Ann. §798.04 ............................................... 11

Fla. Stat. Ann. §798.05 ...................2, 4, 5, 7, 9,10,13,16

La. Eev. Stats. §14:79 ............................................... 12

Nev. Eev. Stats, eh. 201.240 ....................................... 12

N. Dak. Eev. Code eh. 12-2213 ................................. 12

S. C. Code 1952, §5377 ............................................... 11

Tenn. Code Ann. §36-402 (1955) ............................... 12

Other Authorities:

PAGE

Greenberg, Eace Eelations and American Law (1959) 14

Hager, “ Some Observations on the Eelationship Be­
tween Genetics and Social Science,” 13 Psychiatry 
371 (1950) .......................................................................  17

Weinberger, A Eeappraisal of the Constitutionality of 
Miscegenation Statutes, 42 Cornell L. Q. 208 
(1957) ............................................................................. 14,17



In the

(Hmtrt of tip Intteb
October T erm, 1963 

No.................

Dewey McL aughlin and Connie Ho reman, 
also known as Connie Gonzalez,

Appellants,
■—v.-

T he State of F lorida,
Appellee.

ON APPEAL FROM THE SUPREME COURT OP THE 
STATE OP FLORIDA

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the Supreme 
Court of Florida which affirmed, on May 1, 1963, the judg­
ments of conviction entered by the criminal court of record 
of Dade County, Florida. The final order of the Supreme 
Court of Florida was entered May 30, 1963 with denial of 
appellants’ petition for rehearing (R. 213). Appellants 
submit this statement to show that this Court has juris­
diction of the appeal and that a substantial question is 
presented. In the alternative, should the Court regard 
this appeal as having been improvidently taken, appel­
lants pray that this statement be regarded and acted upon 
as a petition for a writ of certiorari in accordance with 
28 U. S. C. §2103.



2

Citation to Opinion Below

The criminal court of record of Dade County, Florida 
did not render an opinion. The opinion of the Supreme 
Court of Florida is reported in 153 So. 2d 1 (1963) and is 
printed in the appendix hereto, infra, pp.

Jurisdiction

Appellants were convicted in the criminal court of 
record of Dade County, Florida on June 24, 1962 of violat­
ing Fla. Stat. Anno. §798.05. They appealed to the Su­
preme Court of Florida contending that the convictions 
violated the equal protection and due process clauses of 
the Fourteenth Amendment. On May 1, 1963, the Supreme 
Court of Florida affirmed the convictions and decided in 
favor of the validity of §798.05 under the Constitution of the 
United States (R. 202). Petition for rehearing in the 
Supreme Court of Florida was denied May 30, 1963 
(R. 213).

Appellants filed Notice of Appeal in the Supreme Court 
of Florida on August 29, 1963 (R. 215). Jurisdiction of 
this Court on appeal rests upon 28 U. S. C. §1257 (2). 
Williams v. Bruffy, 96 U. S. 176; Largent v. Texas, 318 
U. S. 418.

Constitutional and Statutory Provisions Involved

1. Petitioners were convicted of violating Fla. Stat. 
Anno. §798.05 (Volume 22, Title 44, p. 227), which provides:

§798.05—Negro man and white woman or white man 
and negro woman occupying same room.

“Any negro man and white woman, or any white man 
and negro woman, who are not married to each other,



3

who shall habitually live in and occupy in the night­
time the same room shall be punished by imprison­
ment not exceeding twelve months, or by fine not 
exceeding five hundred dollars.”

2. The case also involves Fla. Stat. Anno. §741.I I1 
(Vol. 21, Title 42, p. 330) which provides:

§741.11—Marriages between white and negro persons 
prohibited.

It is unlawful for any white male person residing or 
being in this state to intermarry with any negro 
female person; and it is in like manner unlawful for 
any white female person residing or being in this 
state to intermarry with any negro male person; 
and every marriage formed or solemnized in contra­
vention of the provisions of this section shall be 
utterly null and void, and the issue, if any, of such 
surreptitious marriage shall be regarded as bastard 
and incapable of having or receiving an estate, real, 
personal or mixed, by inheritance.

3. The case also involves Fla. Stat. Anno. §1.01 (Vol. 1, 
Title 1, p. 124) providing:

§1.01—Definitions.

. . .  (6) The words “negro” , “ colored” , “ colored per­
sons” , “ mulatto” or “ persons of color” , when applied 
to persons, include every person having one-eighth 
or more of African or negro blood.

4. This case also involves Section 1 of the Fourteenth 
Amendment to the Constitution of the United States.

1 Petitioners were not charged under this law.



4

Questions Presented

Do these convictions violate the equal protection and due 
process clauses of the Fourteenth Amendment to the United 
States Constitution where: t

J
(1) The State has

created a crime expressly defined in terms of race which 
punishes Negroes and whites who engag’e in certain con­
duct together, but does not forbid such conduct engaged in 
by Negroes only or whites only?

(2) Common law marriage is a defense for a couple
charged under Fla. but was unavail­
able to appellants because K!;h pro­
hibits marriage between Negroes and whites?

(3) Florida’s purported definition of “ Negro” and
“ white” persons ..Statr~A&BO,-~^LQl— an essential
element of the crime, oroatod-for Fla Sfcat. Annoi —
is so vague and indefinite as applied as to afford no fair 
warning to appellants or standard of criminality for the 
court or the jury?

Statement

Appellants were arrested in February 1962 and charged 
with having violated Fla. Stat. Anno. §798.05 in that “ the 
said Dewey McLaughlin, being a Negro man, and the said 
Connie Hoffman, also known as Connie Gonzalez, being

1a white woman, who were not married to each other, did 
habitually live in and occupy in the nighttime the same 
room” (R. 10). Mr. McLaughlin, a Spanish-speaking man 
born in Honduras (but apparently a U. S. citizen) was 
employed in a Miami Beach hotel (R. 140). Appellant 
Connie Hoffman began residing in a one room apartment



5

at 732 Second Street, Miami Beach, Florida in April 1961 
(R. 37). The owner of the premises, Mrs. Dora Goodnick, 
testified that she saw McLaughlin at various times in 
December 1961 and February 1962 enter the apartment 
house at night and leave in the morning (R. 38-40). Mrs. 
Goodnick also claimed to have seen him showering in the 
bathroom and heard him talking to appellant Hoffman 
in her apartment at night (R. 50-52). Appellant Hoffman 
told Mrs. Goodnick that McLaughlin was her husband 
(R. 38). Mrs. Goodnick stated that she was disturbed 
that a colored man was living in her house and conse­
quently reported the situation to the police (R. 39).

Detectives Stanley Marcus and Nicolas Valeriana of 
the Miami Beach Police Department went to appellant 
Hoffman’s apartment at 7:15 P.M. February 23, 1962, 
to investigate a charge that she was contributing to the 
delinquency of her minor son (R. 60, 75). They knocked 
at the door and a man’s voice answered, “ Connie, come 
in,” but the door was not opened (R. 61-62). Valeriana 
went to the back of the apartment and found McLaughlin 
exiting from the rear door (R. 70). In the questioning 
which followed, McLaughlin admitted that he had been 
living there with Hoffman (R. 73) and that on at least one 
occasion he had had sexual relations with her (R. 80L 
But, there was no charge or conviction of fornication 
or adultery. The detectives also observed pieces of 
McLaughlin’s wearing apparel draped across furniture in 
the room (R. 77). Appellant Hoffman came to the police | 
station where McLaughlin was being held and while there 
stated that she was living with him but thought that this 
was not unlawful (R, 82). At trial Detective Valeriana 
identified her as a white woman and Dewey McLaughlin 
as a Negro from their appearances (R. 100-101, 103).

Josephine De Cesare, a secretary in the City Manager’s 
Office, testified that in the process of securing a civilian



6

registration card, McLaughlin stated in January 1961, 
that he “was separated and that his wife’s name was 
Willie McLaughlin” (R. 125, 127). Dorothy Kaabe, a child 
welfare worker in the Florida State Department of Public 
Welfare testified that in an interview on March 5, 1962, 
appellant Hoffman stated that she began living with 
McLaughlin as her common law husband in September or 
October 1961 but had never had a formal marriage to 
him (R. 143).

Each defendant was convicted by a jury and each was 
sentenced to thirty days in the County Jail at hard labor 
and fined $150.00, plus costs, and in default of such pay­
ment to an additional 30 day term (R. 14-17).

How the Federal Questions Were Raised and Decided

On March 1, 1963, an information was filed against ap­
pellants charging them with violation of Fla. Stat. Anno. 
§798.05 (R. 10). They filed a motion to quash the infor­
mation alleging that §798.05 was contrary to the Four­
teenth Amendment of the United States Constitution in 
that it was vague, denied due process and equal protec­
tion of the laws, and was an invasion of the right to 
privacy (R. 12-13). The Motion to Quash was denied 
(R. 14). During trial, appellants moved for directed ver­
dict on the grounds that criteria for identifying a “ Negro” 
under §798.05 must be established by reference to Fla. 
Stat. Anno. §1.01 and that the standard of proof of this 
element was vague, in terms of evidence introduced by 
the state and as set forth in §1.01 (R. 104-108, 152). Appel­
lants specifically related the motion for directed verdict 
to the unconstitutional vagueness of §798.05 (R. 104-105), 
asserting that no one could be apprised that his behavior 
was prohibited given the unclear definition of the term



7

“ Negro” (R. 104-105). The motion for directed verdict 
was denied (R. 108, 152).

Upon submitting the case to the jury, the judge gave 
instructions that in Florida a Negro and a white person 
could not have lawfully married, either by common law 
or formal ceremony (R. 161). No exception was taken to 
this instruction at the trial.

On July 3, 1962, defendants filed a motion for new trial 
on the grounds that the court erred in overruling the mo­
tion to quash the information which had alleged that 
§798.05 was contrary to the Fourteenth Amendment. Error 
was also claimed in that the trial court had permitted the 
testimony of Detective Valeriana, based on his observation 
of the appearance of appellant McLaughlin, to satisfy the 
statutory criteria defining the term “ Negro”  (R. 17-18). 
The motion for new trial was denied (R. 19).

On appeal the assignment of errors again alleged that 
Fla. Stat. Anno. §798.05 violated the Fourteenth Amend­
ment of the United States Constitution in that it was 
vague and indefinite, operated to deny equal protection 
and due process of law, and authorized an undue invasion 
of the right of privacy (R. 21-22). Error was also as­
signed to the overruling of the motion for new trial and 
to the overruling of the objection to the standard of proof 
accepted for the identification of appellant McLaughlin 
as a Negro (R. 22).

In affirming the conviction, the Supreme Court of Florida 
discussed only whether the special crime of interracial 
cohabitation was valid under the Fourteenth Amendment, 
and sustained the law relying on Pace v. Alabama, 106 
U. S. 583. The court stated:

This cause is here on appeal from the Criminal 
Court of Record of Dade County. The trial court di­



8

rectly passed upon the validity of a State statute and 
we, therefore, have jurisdiction . . .  (R. 202).

# # *

The appellants seek adjudication of their right to 
engage in integrated illicit cohabitation upon the same 
terms as are imposed upon the segregated lapse. But, 
as was admitted by counsel in argument, this appeal 
is a mere way station on the route to the United 
States Supreme Court where defendants hope that, 
in the light of supposed social and political advances, 
they may find legal endorsement of their ambitions.

This Court is obligated by the sound rule of stare 
decisis and the precedent of the well written decision 
in Pace, supra. The Federal Constitution, as it was 
when construed by the United States Supreme Court 
in that case, Pace v. Alabama is quite adequate but 
if the new-found concept of “ social justice” has out­
dated “ the law of the land” as therein announced and, 
by way of consequence, some new law is necessary, 
it must be enacted by legislative process or some other 
court must write it (R. 204-205).

Appellants’ brief in the Florida Supreme Court argued 
that the instruction of the jury in accordance with the 
miscegenation law violated their rights (R. 180-183). The 
state countered by arguing that the law was valid under the 
Fourteenth Amendment and that the instruction could 
only be a harmless error (R. 195-199). Appellants sought 
rehearing attempting to secure the Florida Supreme 
Court’s discussion of this issue (R. 207), but rehearing 
was denied without opinion (R. 213).



9

The Questions Presented Are Substantial

I

The Court Below Affirmed Racially Discriminatory 
Criminal Convictions Under an Expressly Racial Statute 
in Mistaken Reliance Upon Pace v. Alabama, 106 U. S. 
583. However, if  Pace Is Deemed Controlling, It Should 
No Longer Be Followed Because It Is Inconsistent With 
Many Subsequent Decisions o f  This Court.

This case presents a substantial question deserving ple­
nary hearing before this Court on appeal. The conviction 
of appellants represents a manifest discrimination, erro­
neously sought to be justified by the court below as com­
pelled by Pace v. Alabama, 106 IT. S. 583 (1883), a case 
involving a discrete issue. Tony Pace and his co-defendant 
would have been guilty of a crime in Alabama even if they 
had both been white—though, to be sure, their punishment 
would have been less.

However, if Dewey McLaughlin and Connie Hoffman had 
been found by the jury to be both white or both Negroes 
they would have been set free. But for their race (as de­
termined by the jury) no crime would have been committed 
under §798.05. This law makes it a crime punishable by 
12 months in jail and a $500 fine for an unmarried man and 
woman habitually to live in and occupy the same room in 
the nighttime, if (and only if) one is a Negro and the other 
is white. Unlike the Alabama situation in Pace v. Alabama, 
106 U. S. 583, Florida has not made it a crime at all for a 
man and woman of the same race to engage in the identical 
conduct charged. There is no general nonracial (or single- 
racial) counterpart of §798.05 in the Florida statutes. Flor­
ida recognizes common law marriages (see infra p. 13).



1 0

Thus, the conduct with which appellants were charged is 
licit under Florida law for persons of the same race.

Conviction under this law involves so gross a denial of 
equal protection as to command the attention of the Court.

/^Stripped of emotional overtones, the case is simple indeed. 
J (jVho would doubt that the equal protection clause would 
y invalidate a scheme of laws providing that it was a crime 

for automobiles occupied by Negroes and whites to exceed 
25 m.p.h. but providing no speed limit for any other auto- 

Ljmobiles. |Snch a legal scheme—and innumerable hypotheti­
cal parallels—would probably be laughed out of court with 
dispatch. But our hypothesized speeding law shares the 
same infirmity as-f?98ifi5-doos—it punishes an activity only 
if and because it is interracial.

Florida has not advanced (and cannot advance) any con­
stitutionally acceptable basis for making the conduct de­
scribed by §798.05 a crime only when persons of different 
races are involved.2

As early as 1896, this Court said that criminal justice 
must be administered “without reference to considerations 
based on race,” Gibson v. Mississippi, 162 U. S. 565, 591. 
From Buchanan v. Warley, 245 U. S. 60 to Peterson v. 
Greenville, 373 U. S. 244, the Court has repeatedly struck 
down laws attempting to require separation of the races 
by imposing criminal penalties. Such a law was involved in

2 Of course, the power to regulate sexual immorality
is not challenged.^Tmt tins law does not require any proof of 
sexual, or other misconduct; it merely regulates who occupies a 
room. (There is some reason to doubt whether, aside from the racial 
dimensions of the law, Florida can justify punishing this conduct] 
O^-BeUnson^rPaiifm'Ma,hTTnjrS-66th In numerous situations 
such a nonracial statute would not seem justified; its coverage 
would include such cases as unmarried members of the same family 
occupying a room, nurses and patients, the physically handicapped, 
etc.



1 1

Dorsey v. State Athletic Commission, 168 F. Supp. 149 
(E. D. La. 1958), affirmed 359 U. S. 533, where Louisiana 
made it a crime punishable by a year in jail for a Negro and 
a white person to engage in boxing matches and other 
athletic contests. No one contested Louisiana’s power to 
prohibit boxing; that. State was denied the power to allow 
it generally but prohibit interracial contests. Many com­
parable laws have been invalidated. For example, desegre­
gated golf matches were criminally punishable by the law 
struck down in Holmes v. Atlanta, 350 U. S. 879, reversing 
223 F. 2d 93 (5th Cir. 1955), and South Carolina’s school 
segregation law (S. C. Code 1952, §5377) merely made it a 
crime for any person to attend a school established for per­
sons of another race. Brown v. Board of Education, 347 
U. S. 483. See also Gayle v. Browder, 352 U. S. 903, aff’g 
142 F. Supp. 707 (M. D. Ala. 1956).

In short, “ race is constitutionally an irrelevance” (Ed­
wards v. California, 314 U. S. 160, 185), and “ racial differ­
ences cannot provide a valid basis for governmental action” 
(Ahington School District v. Schempp, 374 U. S. 203, 10 L. 
ed. 2d 844, 912, Justice Stewart dissenting). See also, Goss 
v. Board of Education, 373 U. S. 683, 10 L. ed. 2d 632, 635, 
and cases cited. In the words of the first Justice Harlan, 
the Constitution is “ color blind,” Plessy v. Ferguson, 163 
U. S. 537, 558. The decision below is in the teeth of this 
Court’s repeated holdings that racial segregation laws are 
invalid.

As noted above, this case is different from Pace v. Ala­
bama, supra, where the conduct alleged was criminal irre­
spective of the race of the parties. Appellants were not 
charged with violating Fla. Stat. Anno. §798.04, prohibiting 
interracial fornication; if they had been the case would be 
like Pace, for the non-racial law covering the same conduct



1 2

(Fla. Stat. §798.03) carries a lesser penalty.3 But appel­
lants have no hesitancy in urging that Pace should be over­
ruled if its reasoning—that interracial illicit conduct is a 
“ different crime” from that punished by the general law— 
is thought to extend to this case. Pace stands as an isolated 
vestige of the “ separate but equal” era inconsistent with the 
entire development of the law at least since Buchanan v. 
Warley, 245 U. S. 60. It is notable that this Court has cited 
Pace only two times in the eighty years since it was decided; 
race discrimination was not an issue in either case.4 It ought 
to be overruled. No segregation law would ever be invali­
dated under the reasoning of Pace that equality is assured 
where a Negro and white co-defendant are liable to the same 
punishment. Cf. Shelley v. Kraemer, 334 U. S. 1, 22.

The issue involved here is not confined to Florida; at 
least six other states have laws similar to §798.05.5

3 If this case is viewed as presenting the Pace issue, the follow­
ing facts would be pertinent. Appellants were fined $150 and given 
a 30 day jail term. (They were liable under §798.05 to a $500 fine 
and a 12 month term.). The .maximum sentence under the general 
fornication law (§798.03) is a $30 fine and a 3 months term. The 
interracial fornication and adultery law (§798.04) carries a possi­
ble $1,000 fine and 12 months in jail.

4 See e.g. Moore v. Missouri, 159 U. S. 673, 678 (1895) ■ Hill v. 
United States ex rel. Weiner, 300 U. S. 105, 109 (1937).

5 Ala. Code tit. 14, §360 (adultery, marriage, or fornication 
between white and Negro, 2 to 7 years) ; Ark. Stats. Ann. §41-806 
(concubinage between white and Negro, 1 month to 1 year) ; La. 
Rev. Stats. §14:79 (miscegenation statute includes habitual cohabi­
tation of racially mixed couple; up to 5 years) ; Nev. Rev. Stats, eh. 
201.240 (white and colored persons living and cohabiting in state 
of fornication, $100 to $500, 6 months to 1 year, or both); N. Dak. 
Rev. Code ch. 12-2213 (unmarried racially mixed couple occupying 
same room; up to 1 year, $500 fine, or both) ; Tenn. Code Ann. 
§36-402 (1955) (marriage or living together as man and wife of 
racially mixed couple prohibited; 1 to 5 years or fine and imprison­
ment in county jail).



13

II

Appellants’ Conviction Denied Them Due Process and 
Equal Protection o f  the Laws Under the Fourteenth 
Amendment in That a Common Law Marriage Was Held 
to Be Unavailable as a Defense to the Crime Because o f  a 
Florida Law Declaring Interracial Marriages Null and 
Void.

In charging the jury the judge stated (B. 161) :

“ I further instruct you that in the State of Florida it is 
unlawful for any white female person residing or being in 
this state to intermarry with any Negro male person and 
every marriage performed or solemnized in contravention 
of the above provision shall he utterly null and void.”

This charge was in accord with Fla. Stat. Anno. §741.11. 
The statute under which appellants were prosecuted 
(§798.05) makes marriage a defense to the charge, and Flor­
ida gives full recognition to common law marriage, accord­
ing it the same legal incidents available in a formal 
marriage. (See, e.g., Chaachow v. Chaachow, 73 So. 2d 830 
(1954); Navarro v. Balter, 54 So. 2d 59 (1951).) Of course, 
one of the ways of proving common law marriage is by 
“ repute” and there was evidence of representations by ap­
pellant that McLaughlin was her husband (B. 38, 143). But 
the sufficiency of the evidence is not in issue because the 
judge’s charge, based on Fla. Stat. Anno. §741.11, removed 
from the jury’s consideration any evidence tending to estab­
lish the defense of marriage if they found that one appellant 
was Negro and that the other was white.

The constitutionality of the anti-miscegenation statute 
(§741.11) is relevant because the crime requires appel­
lants to be “ unmarried” and the indictment so charged.



14

The question is whether a state can forbid parties by 
statute from contracting a lawful marriage within the 
state because of their race, and then convict the same 
parties for entering into “unlawful” cohabitation?

This Court has not determined the validity of a mis­
cegenation law. Pace v. Alabama, supra, did not involve 
a marriage; although the statute in Pace forbids inter­
marriage as well as adultery and fornication, no charge 
of intermarriage was made. No decision on the merits of 
this issue was reached by this Court in either Naim v. 
Naim, 350 U. S. 891 (1955), app. dismissed 350 U. S. 985, 
or Jackson v. Alabama, 348 U. S. 888, a denial of certiorari. 
Miscegenation laws have been recently on the books in 
over 20 states and many others have been repealed, some 
in recent years.6 These laws have been upheld by at least 
twelve states’ highest courts.7 But the California Supreme 
Court has held its law unconstitutional under the Four­
teenth Amendment in Peres v. Lippold, 32 Cal. 2d 711, 
198 P. 2d 17 (1948).

It seems quite clear in view of subsequent decisions that 
Perez v. Lippold reached the proper result under the 
Fourteenth Amendment. This Court’s many decisions hold­
ing racial segregation laws invalid, from Buchanan v. 
Warley, in 1917, to date, destroy any possible argument 
in favor of the validity of §741.11. The racists’ “ pure 
races” theory and other similar notions offered in at­
tempted justification for such a law have all been rejected 
in connection with other segregation laws. (See generally 
Weinberger, op. cit.)

6 Lists of the laws appear in Weinberger, A Reappraisal of the 
Constitutionality of Miscegenation Statutes, 42 Cornell L. Q. 208 
(1957), and Greenberg, Race Relations and American Law, Appen­
dix A. 28, pp. 397-398 (1959).

7 Weinberger, op. cit. 209.



15

The states have traditionally exercised control over 
the marital institution. Maynard v. Hill, 125 IJ. S. 190; 
Reynolds v. United States, 98 U. S. 145. But the liberty 
protected by the due process clause “ is not confined to 
mere freedom from bodily restraint” ; rather, it “ extends 
to the full range of conduct which the individual is free to 
pursue, and it cannot be restricted except for a proper 
governmental objective.” Bolling v. Sharpe, 347 U. S. 
497, 499. The right to marry is a protected liberty under 
the Fourteenth Amendment. In Meyer v. Nebraska, 262 
U. S. 390, 399, the Court said:

While this Court has not attempted to define with 
exactness the liberty thus guaranteed (by the Four­
teenth Amendment), the term has received much con­
sideration, and some of the included things have been 
definitely stated. Without doubt, it denotes not merely 
freedom from bodily restraint, but also the right of 
the individual to . . . marry, establish a home and bring 
up children. . . .

The essence of the right to marry is a freedom to join in 
marriage with the person of one’s own choice.

Another incident of the right to marry is the right of 
privacy. Under the circumstances of these convictions, 
not only may a private relationship be subjected to crimi­
nal prohibition but a private place'—the home—is unjustifi­
ably subjected to governmental regulation, and the types 
of invasion of privacy attendant upon investigation of 
crime, e.g., surveillance, searches, etc. The due process 
clause of the Fourteenth Amendment protects the right 
of privacy (Mapp v. Ohio, 367 U. S. 643; see also Poe v. 
Ullman, 367 U. 8. 497, 517-522 (dissenting opinion); cf. 
Public Utilities Commission v. Poliak., 343 U. S. 451, 467, 
469 (dissenting opinion)), and privacy of association



1 6

(NAACP v. Alabama, 357 U. S. 449) from unwarranted 
state interference. The state cannot show that any valid 
governmental purpose is furthered by the deprivation of 
liberty occasioned by the miscegenation law.

Ill
Appellants Were Denied Due Process of Law Under 

the Fourteenth Amendment Because the Statute Under 
Which They Were Convicted Was Vague and Indefinite.

In order to convict under §798.05 the state must prove 
that one party is a “ Negro.” The purported definition of 
“ Negro” occurs in §1.01 of the Florida statutes, which 
holds any person with “ one eighth or more of African or 
Negro blood” to be a “ Negro.” Section 1.01, on its face, 
and as applied at the trial, is so ambiguous and suscep­
tible of such diversified interpretation that the standard 
of clarity required by the due process clause of the Four­
teenth Amendment is lacking.

No reasonably unvarying definition can be given to the 
terms “ African or Negro blood.” First, one deficiency of 
the definition is readily apparent, i.e., that “ Negro” is 
defined by using the word sought to be defined—in the 
phrase “ Negro blood.” This is no help at all. “ African” 
might seem at first to be a finite concept. But does Florida 
really mean to refer to all citizens of African countries— 
to the citizens of North Africa and the Afrikaners of 
South Africa for example! When it is considered that the 
population of the vast African continent is diverse and 
constantly changing, the definition is exposed as mean­
ingless. But of course there is a great deal more. There 
is no such thing as African or Negro “blood” in any genetic 
or biological sense, and there is no known method by which



17

proportions of such “ blood” (such as %th) can be deter­
mined. One scholar remarked:

Laws prohibiting marriage between “whites and 
persons having one-eighth or more of Negro blood” 
are compounded of legal fiction and genetic nonsense. 
Hager, “ Some Observations on the Relationship Be­
tween Genetics and Social Science,” 13 Psychiatry 
371, 375 (1950).8

Florida’s definition, employing fractions of blood, rests 
on the assumption that somewhere it is possible to find, 
and to ascertain that one has found, a racially pure per­
son— e.g., a man with 100% Negro “blood.” But neither 
the statute nor science tells us how this fine calculation 
and determination possibly can be made. Unless one can 
locate such purity somewhere the whole system of frac­
tions breaks down and becomes unserviceable. It is, of 
course, even more remarkable to make a man legally bound 
to know and act on the basis of the racial “blood” of his 
great-grandparents or even more remote ancestors. This 
is comparable to the Louisiana statute invalidated by this 
Court which required “ the impossible,” namely, that one 
give an affidavit that none of the officers in his organization 
were Communists or subversives. Louisiana v. NAACP, 
366 U. S. 293.

In this case the trial court sought to avoid all these 
problems by ignoring the statutory framework (the %th 
rule) and simply allowing a jury to determine race on a 
policeman’s testimony as to appellants’ appearance (R. 
100-101, 103). When this standard is made an “ appear­
ance” standard—the average man’s or indeed juror’s

8 And see generally the authorities collected in Weinberger, 
op. cit. 217-221.



18

opinion as to what race appearance indicates—then the 
last pretense of statutory clarity is gone. The appearance 
standard is obviously a varying and easily shifting method 
in which a man’s race is not an objective thing at all, but 
rather springs from the mind and eye of each beholder. 
That such a standard should not be used in sending people 
to jail is so obvious that it need not be labored. Differ­
ences of opinion, perception, etc., as to race based on 
appearance are a commonplace of life. To make a man 
conduct his affairs on the basis of a preliminary guess as 
to what his race will be in the opinion of some future un­
known witnesses and jurors using an appearance rule 
places liberty on a slippery surface unworthy of the crimi­
nal law of a civilized society. It is easily as vague as the 
term “ gangster” in the New Jersey law invalidated in 
Lanzetta v. New Jersey, 306 U. S. 451. The vice is com­
pounded by the fact that §1.01(6) never gave a hint that 
some rough rule of thumb was involved; on its face it 
pretends mathematical precision.



19

CONCLUSION

It is respectfully submitted that for the foregoing rea­
sons the questions presented are substantial and the Court 
should herein determine this appeal, and upon consideration 
thereof reverse the judgments below.

.Respectfully submitted,

Jack Greekberg
J ames M. Nabrit, III
L eroy D. Clark

10 Columbus Circle 
New York, New York

R obert R amer
305 N.W. 27th Avenue 
Miami, Florida

H. L. Braykos
802 N.W. Second Avenue 
Miami, Florida

G. E. Graves, Jr.
802 N.W. Second Avenue 
Miami, Florida

Attorneys for Appellants

Louis H. P ollak 
W illiam T. Colemak, Jr.

Of Counsel



APPENDIX



APPENDIX

Opinion Below

Not F inal Until T ime E xpires to F ile R ehearing P etition 
and, ie F iled, Determined

In the

SUPREME COURT OF FLORIDA 

January Term, A.D. 1963 

Case No. 31,906

Dewey McL aughlin and 
Connie H oeeman also 

known as Connie Gonzalez,

-v -
Appellants,

State oe F lorida,
Appellees.

Opinion filed May 1,1963

An Appeal from the Criminal Court of Record for Dade 
County, Gene W illiam s , Judge

R obert R amer, H. L. Braynon and G. E. Graves, for 
Appellants

R ichard W. E rvin, Attorney General, and James G. 
Mahorner, Assistant Attorney General, for Appellees

Caldwell, J.

This cause is here on appeal from the Criminal Court of 
Record of Dade County. The trial court directly passed



2a

upon the validity of a State statute and we, therefore, have 
jurisdiction.

Defendants are charged with having violated Fla. Stat. 
§798.051 in that “ the said Dewey McLaughlin, being a negro 
man, and the said Connie Hoffman, being a white woman, 
who were not married to each other did habitually live in 
and occupy in the nighttime the same room.” The defen­
dants moved to quash the information on the ground that 
the aforesaid statute was in violation of the Federal and 
State Constitutions. The motions were denied. Defendants 
were then arraigned and entered pleas of not guilty. The 
jury trial terminated in a verdict of guilty, a sentence of 
thirty days in the county jail and a fine of $150 for each 
defendant.

The defendants contend they were denied equal protec­
tion of the laws because “ Firstly, the law provides a special 
criminal prohibition on cohabitation solely for persons who 
are of different races; or, secondly, if this special statute is 
equated with the general fornication statute, the higher 
penalties are imposed on the person whose races differ than 
would be applicable to persons of the same race who commit 
the same acts.”

In Pace vs. Alabama,2 the Supreme Court of the United 
States upheld an Alabama Statute3 prohibiting interracial 
marriage, adultery or fornication, against the contention

1 Fla. Stat. §798.05
“Any negro man and white woman, or any white man and 

negro woman, who are not married to each other, who 
shall habitually live in and occupy in the nighttime the 
same room shall be punished by imprisonment not exceed­
ing twelve months, or by fine not exceeding five hundred 
dollars.”

2 106 U. S. 207 (1883).
3 Ala. Code of 1876, §4189 (now Ala. Code, Title 14, §360 

[1958]).



3a

that it denied equal protection of the law. Another Alabama 
Statute4 prohibited adultery or fornication between mem­
bers of the same race but provided a less severe maximum 
penalty. The Supreme Court speaking through Mr. Justice 
Field held:

“ Equality of protection under the laws implies not only 
accessibility by each one, whatever his race, on the same 
terms with others, to the courts of the country for the 
security of his person and property, but that in the 
administration of criminal justice he shall not be sub­
jected, for the same offense, to any greater or different 
punishment . . .

“ The defect in the argument of counsel, consists in his 
assumption that any discrimination is made by the laws 
of Alabama in the punishment (sic) provided for the 
offense for which the plaintiff in error was indicted, 
when committed by a person of the African race and 
when committed by a white person. The two sections of 
the Code cited are entirely consistent. The one pre­
scribes, generally, a punishment for an offense com­
mitted between persons of different sexes; the other 
prescribes punishment for an offense which can only 
be committed where the two sexes are of different races. 
There is in neither section any discrimination against 
either race. Section 4184 equally includes the offense 
when the persons of the two sexes are both white and 
when they are both black. Section 4189 applies the 
same punishment to both offenders, the white and the 
black. Indeed, the offense against which this latter sec­
tion is aimed cannot be committed without involving 
the persons of both races in the same punishment.

4 Ala. Code of 1876, §4184 (now Ala. Code, Title 14, §16 
[1958]).



4a

Whatever discrimination is made in the punishment 
prescribed in the two sections is directed against the 
offense designated and not against the person of any 
particular color or race. The punishment of each 
offending person, whether white or black, is the same.”

The appellants seek adjudication of their right to engage 
in integrated illicit cohabitation upon the same terms as are 
imposed upon the segregated lapse. But, as was admitted 
by counsel in argument, this appeal is a mere way station 
on the route to the United States Supreme Court where 
defendants hope that, in the light of supposed social and 
political advances, they may find legal endorsement of their 
ambitions.

This Court is obligated by the sound rule of stare decisis 
and the precedent of the well written decision in Pace, 
supra. The Federal Constitution, as it was when construed 
by the United States Supreme Court in that case, is quite 
adequate but if the new-found concept of “ social justice” 
has out-dated “ the law of the land” as therein announced 
and, by way of consequence, some new law is necessary, it 
must be enacted by legislative process or some other court 
must write it.

Affirmed.

R oberts, C.J., T errell, T homas, T hornal and O’Cownell, 
JJ. ,  concurring. Drew, J agrees to judgment.



5a

Final Judgment Denying Rehearing

In the
SUPREME COURT OF FLORIDA 

January Term, A.D. 1963 

Thursday, May 30, A.D. 1963 

Case No. 31,906

Dewey McL aughlin and 
Connie H offman also 

known as Connie Gonzalez,

Appellants,

State of F lorida,
Appellee.

On consideration of the Petition for Rehearing filed by 
Attorneys for Appellants,

It is ordered by the Court that the said petition be, and 
the same is hereby, denied.

A True Copy,

Test:

Guyte P. M cCord 
Clerk Supreme Court

(The Mandate From This Court Has Today Been Issued and 
Mailed to the Clerk of the Criminal Court of Record for

Dade County)



'