Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Reply Brief of Plaintiffs-Appellants and Brief as Cross-Plaintiffs

    I k  t h e

(Emtrt ni %  ImW
October T eem, 1964 

No. 11

D ewey McL aughlik, et al.,
Appellants,

F lorida.

OK APPEAL EEOM THE SUPREME COURT OF THE STATE OF FLOEIDA

BRIEF FOR APPELLANTS

J ack Greekberg 
J ames M. Nabeit, III  
L eroy D. Clark

10 Columbus Circle 
New York, New York

Louis H. P ollak 
127 Wall Street 
New Haven, Connecticut

W illiam T. Colemak, Je.
2635 Fidelity-Philadelphia 
Trust Bldg.
Philadelphia 9, Pennsylvania

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

Attorneys for Appellants



I N D E X
PAGE

Opinion Below ............... ...................... ........ ............. -....... - 1

Jurisdiction ..............................................- ..........................  1

Constitutional and Statutory Provisions Involved------ 2

Questions Presented  ...................................-....... —- —- 4

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

Summary of Argument ....................................... -.....-...... -  7

A bgxjment :

I. Appellants Were Convicted Under a Law 
Which Makes Race an Element of the Crime, 
Punishing a Negro and a White Person for 
Acts Not Prohibited When Done by Persons 
of the Same Race, and Thus Violates the Due 
Process and Equal Protection Clauses of the 
Fourteenth Amendment ....... ............. ........... - 9

II. Appellants Were Denied Rights Under the 
Due Process and Equal Protection Clauses of 
the Fourteenth Amendment by Florida’s Mis­
cegenation Laws Which Had the Effect of 
Requiring the Jury to Disregard Evidence of 
a Common Law Marriage If It Decided That 
One Appellant Was White and That the 
Other Was Negro .................................... ..........  15

III. Appellants Were Denied Due Process Be­
cause Either There Was No Proof of Their 
Race or Florida’s Racial Definition Is Vague 27



11
PAGE

Conclusion ..........................................................................  31

A ppendix :

States Repealing Miscegenation Laws in Recent 
Years ..........................................................................  la

States Repealing Miscegenation Laws in Last Cen­
tury ............................................................................  2a

States Never Enacting Statutes Which Prohibit 
Interracial Marriage ............................................... 2a

States at Present Prohibiting Interracial Mar­
riages .........    3a

Table op Cases

Abington School District v. Schempp, 374 U. S. 203 .... 13 
Anderson v. Martin, 379 U. S. 399 ...................................12, 26

Bell v. Maryland,'------ U. S .------- , 12 L. ed. 2d 822 .......  25
Bolling v. Sharpe, 347 U. S. 497 ........ ............................  12
Brown v. Board of Education, 347 U. S. 483 ....12,13,14, 25
Buchanan v. Warley, 245 U. S. 60 ................... 8,12,13,14, 26
Burns v. State, 48 Ala. 195 (1872) ...............................24, 26

Callen v. Florida, 94 So. 2d 603 (Fla. 1957) ....... ...........  11
Campbell v. State, 92 Fla. 775, 109 So. 809 (1926) .......  18
Chaachou v. Chaachou, 73 So. 2d 830 (Fla. 1954) ____ 16
Cloud v. State, 64 Fla. 237, 60 So. 180 (1912) ...............  11
Connally v. General Construction Co., 269 U. S. 385 .... 30 
Cooper v. Aaron, 358 U. S. 1 ......................... .....................  25

Dorsey v. State Athletic Commission, 168 F. Supp. 149 
(E. D. La. 1958), aff’d 359 IT. S. 533

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

13

13



Ill

Gayle v. Browder, 352 U. S. 903, affirming, 142 F. Supp.

PAGE

707 (M. T). Ala. 1956) ..... ....... ....... ....................... 13,14, 26
Gibson v. Mississippi, 162 U. S. 565 ............ ................  13
Goss v. Board of Education, 373 U. S. 683 .......13,14, 25, 26
Green v. State, 58 Ala. 190 (1877) ......... ....... ............. . 24
Grice v. State, 76 Fla. 751, 78 So. 984 (1914) ...............  12

Hamilton v. Alabama, 376 U. S. 650 ............................... 12
Hill v. United States ex rel. Weiner, 300 U. S. 105.......  14
Hirabayashi v. United States, 320 U. S. 81 .... ..............  12
Holmes v. Atlanta, 350 U. S. 879, reversing 223 F. 2d 

93 (5th Cir. 1955) ........... ................ ............ -----............  13

Jackson v. Alabama, 348 U. S. 888 ....... ................ -.........  18
Johnson v. Virginia, 373 U. S. 6 1 ............. ................. ....13, 26

Korematsu v. United States, 323 U. S. 214----------------12, 20

Langford v. State, 124 Fla. 428,168 So. 528 (1936) ------ 11
Lanzetta v. New Jersey, 306 U. S. 451 ...... ...... ......... —. 30
LeBlanc v. Yawn, 99 Fla. 467, 126 So. 789 (1930) ____ 17
Lewis v. State, 53 So. 2d 707 (Fla. 1951) ....................  18
Lombard v. Louisiana, 373 U. S. 267 --------- -------------13, 26
Lonas v. State, 50 Tenn. 287 (1871) .................... .........  20
Luster v. State, 23 Fla. 339, 2 So. 690 (1887) ...............  11

Malloy v. Hogan,------ U. S .------- , 12 L. ed. 2d 653 ------  18
Meyer v. Nebraska, 262 U. S. 390 .................... ............ . 19
Missouri Pacific Railway Co. v. Kansas, 248 U. S. 276 25 
Moore v. Missouri, 159 U. S. 673 ......... ............... .........  14

Naim v. Naim, 350 U. S. 891, app. dismissed 350 U. S.
985 ................ .............. .............. ................ -....... - ............  18

National Prohibition Cases, 253 U. S. 350 ...... ..............  25
Navarro, Inc. v. Baker, 54 So. 2d 59 (Fla. 1951) ........   16

Orr v. State, 129 Fla. 398, 176 So. 510 (1937) ------------  18



IV

Pace v. Alabama, 106 U. S. 583 ....... ............... 7, 8,13,14,18
Parramore v. State, 81 Fla. 621, 88 So. 472 (1921) .......  10
Penton v. State, 42 Fla. 560, 28 So. 774 (1900)  ............  11
Perez v. Lippold, 32 Cal. 2d 711,198 P. 2d 17 (1948) ....19, 21,

26
Peterson v. Greenville, 373 U. S. 244 ..... ............. 8,13,14, 26
Pinson v. State, 28 Fla. 735, 9 So. 706 (1891) _______  11
Plessy v. Ferguson, 163 U. S. 537 .... ........... ................ 13, 20

Scott v. Georgia, 39 Ga. 321 (1869) ...... ........ ....... ...........  21
Scott v. Sanford, 19 How. 393 ........................................... 24
Shelley v. Kraemer, 334 U. S. 1 ......... .......... .................. 14, 26
Skinner v. Oklahoma, 316 U. S. 535 ...... ....... ....... ........  19
State v. Jackson, 80 Mo. 175 (1883) ........... ...................  21
State v. Pass, 59 Ariz. 16, 121 F. 2d 882 (1942) ...........  20
Steele v. Louisville & N. R. Co., 323 U. S. 192...............  13

Thomas v. State, 39 Fla. 437, 22 So. 725 (1897) ........ . 11
Thompson v. Louisville, 362 U. S. 199 ............. .............  28
Thompson’s Estate, In re, 145 Fla. 42, 199 So. 352 

(1940) .............................. ............ ......... ...........................  17

Wall v. Altbello, 49 So. 2d 532 (Fla. 1950) ...................  25
Watson v. Memphis, 373 U. S. 526 ........ ............... ..........  26
Whitehead v. State, 48 Fla. 64, 37 So. 302 (1904) ____ 11
Wildman v. State, 157 Fla. 334, 25 So. 2d 808 (1946) ....10,11
Williams v. Bruffy, 96 U. S. 176 .......................................  2
Wright v. Georgia, 373 U. S. 284 ........... .................. .... 13, 26

Statutes

Ala. Code, 1940, §301(31c) ................. .................. ..........  14
Fla. Act. Jan. 23, 1832, §§1, 2 ........................................... 25
F. S. A. Constitution, Declaration of Rights, §12...........  18
F. S. A. Constitution, Art. 16, §24 ...............................2, 8,15
F. S. A. §731.29 ....................................................................  25
F. S. A. §741.11..... .....................................................3, 8,15, 25

PAGE



Y

F. S. A. §741.12 ..............
Fla. Stat. Anno., §741.13 
Fla, Stat. Anno., §741.14 . 
Fla. Stat. Anno., §741.15 . 
Fla. Stat. Anno., §741.16
F. S. A. §1.01(6) - .... .......
F. S. A. §798.01 ................
F. S. A. §798.02 ________
F. S. A. §798.03 ............. .
F. S. A. §798.04 ________
F. S. A. §798.05 ...............

S. C. Code, 1952, §5377 ...
28 U. S. C. §1257(2) ........
42 U. S. C. §1981......... .

....................3, 8,15

........................ 16

............. ..........  16

.......................  16

.............. ........ . 16

........3, 8, 27, 28, 29
________ ____  12
_______________________ _____ . 11,12
...................... 11,13
........ ......... .....  11
1, 2, 4, 6, 7, 8, 9,10, 

11,12,13,15, 27
...............    14
......... ............ . 2
........................ 26

PAGE

Other A uthorities

Beals and Hoijer, An Introduction to Anthropology 
(1953) .................................................................... -..........  23

46 Cong. Globe, part 4, p. 3042 (39th Cong., 1st Sess.) .. 25

Dobzhansky, “ The Bace Concept in Biology,” The Sci­
entific Monthly, LII (Feb. 1941) ................................... 21

Hankins, The Racial Basis of Civilization (1926) .......  23

Kroeber, Anthropology (1948)  ~........ .......... —-.......  23

Montague, An Introduction to Physical Anthropology 
(1951) .............. ................. -....... -...................... -............. - 23

Montague, Man’s Most Dangerous Myth: The Fallacy 
of Race (4th ed. 1964)     ...... - ................. 21, 22, 23, 29

Note, 58 Tale L. J. 472 (1949) ......... .... ............................  22
Note, “ Bights of Illegitimates Under Federal Stat­

utes,” 76 Harv. L. Bev. 337 (1962) ..... .................. ...... 25



VI

PAGE

Rand-McNally, Cosmopolitan World Atlas ...................  29

UNESCO, “ Statement on the Nature of Race and Race 
Differences—by Physical Anthropologists and Genet­
icists, September 1952” ................................................. 22

Weinbnrger, “ A  Reappraisal of the Constitutionality of 
Miscegenation Statutes,” 42 Cornell L. Q. 208 (1957) 22

Yerkes, “ Psychological Examining in the U. S. Army”,
15 Mem. Nat. Acad. Sci. 705 (1921) ...........................  23



In t h e

^>uprmp Court of flir Inttef* ^fatro
October T erm, 1964 

No. 11

Dewey McLaughlin, et al.,
Appellants,

F lorida.

ON APPEAL EROM THE SUPREME COURT OF THE STATE OF FLORIDA

BRIEF FOR APPELLANTS

Opinion Below

The Criminal Court of Record In and For Dade County, 
Florida did not render an opinion. The opinion of the 
Supreme Court of Florida is reported in 153 So. 2d 1 
(1963) (R. 99).

Jurisdiction

Appellants were convicted in the Criminal Court of Rec­
ord In and For Dade County, Florida, on June 24, 1962 
of violating Florida Statutes Annotated §798.05. They ap­
pealed to the Supreme Court of Florida, contending that 
the convictions and the Florida laws involved 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 F. S. A. §798.05 under the Constitution of the United



2

States (R. 99). Petition for rehearing in the Supreme 
Court of Florida was denied May 30, 1963 (R. 105).

Appellants filed Notice of Appeal in the Supreme Court 
of Florida on August 29, 1963 (R. 106), and a Jurisdic­
tional Statement in this Court, October 28, 1963. Probable 
jurisdiction was noted April 27,1964 (377 II. S. 974). Juris­
diction of this Court on appeal rests on 28 U. S. C. §1257(2). 
Williams v. Bruffy, 96 U. S. 176, 182-184. Appellants, more­
over raised substantial questions as to the constitutionality 
of their convictions under the Fourteenth Amendment.

Constitutional and Statutory 
Provisions Involved

1. Petitioners were convicted of violating F. S. A. 
§798.05 (Vol. 22, Title 44, p. 277) 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, 
who shall habitually live in and occupy in the night­
time the same room shall each be punished by im­
prisonment not exceeding twelve months, or by fine 
not exceeding five hundred dollars.

2. This case also involves Fla. Const., Art. 16, §24 (Vol­
ume 26A, p. 450) :

§24—Intermarriage of white persons and negroes pro­
hibited.

All marriages between a white person and a negro, or 
between a white person and a person of negro descent 
to the fourth generation, inclusive, are hereby forever 
prohibited.



3

3. F. S. A. §741.11 (Vol. 21A, Title 42, p. 58):

§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 inter­
marry with any negro male person; and every marriage 
formed or solemnized in contravention of the provi­
sions 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 re­
ceiving any estate, real, personal or mixed, by inheri­
tance.

4. F. S. A. §741.12 (Vol. 21A, Title 42, p. 59):

§741.12—Penalty for intermarriage of white and negro 
persons.

If any white man shall intermarry with a negro, or if 
any white woman shall intermarry with a negro, either 
or both parties to such marriage shall be punished by 
imprisonment in the state prison not exceeding ten 
years, or by fine not exceeding one thousand dollars.

5. F. S. A. §1.01 (Vol. 1, Title 1, p. 124):

§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.

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



4

Questions Presented

Whether the conviction of appellants violates the equal 
protection and due process clauses of the Fourteenth 
Amendment to the United States Constitution, where:

(1) The State has created an offense, F. S. A. §798.05, 
expressly defined in terms of race which punishes inter­
racial couples for engaging in certain conduct while not 
punishing such conduct by two persons of the same race?

(2) Appellants were denied a full jury consideration of 
an ingredient of the crime, i.e. the absence of a common 
law marriage, by jury instructions based on Florida’s laws 
prohibiting Negroes and whites from marrying?

(3) There was either no evidence to satisfy Florida’s 
racial definition in F. S. A. §1.01(6)—an essential part of 
the crime created by F. S. A. §798.05— or the definition is 
so vague and indefinite as to establish no standard of crimi­
nality?

Statement

Appellants were arrested February 28, 1962 and charged 
with having violated F. S. A. §798.05 in that “ the said 
Dewey McLaughlin, being a Negro man, and the said Con­
nie Hoffman, also known as Connie Gonzalez, being a white 
woman, who were not married to each other, did habitually 
live in and occupy in the nighttime the same room” (R. 3). 
Appellants were 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 payment to an 
additional 30 day term (R. 7-9).

In April 1961, appellant Connie Hoffman began residing 
in an “ efficiency” apartment at 732 Second Street, Miami 
Beach, Florida (R. 22). The landlady testified that she



5

first saw appellant Dewey McLaughlin in either December, 
1961 or February, 1962 (E. 23, 25). She questioned Connie 
Hoffman about the identity of Mr. McLaughlin and was 
told he was her husband (E. 3). Appellant Hoffman then 
“ signed in” Mr. McLaughlin as her husband (E. 23). Mr. 
McLaughlin, born in Honduras, but apparently an Ameri­
can citizen, was then employed by a Miami Beach hotel 
(E. 82).

The landlady claimed that appellants thereupon began 
living together for a period of ten or twelve days (E. 24, 
26). She stated that she observed McLaughlin showering 
in the bathroom one evening, heard him talking to appel­
lant Hoffman at 10:00 at night, and noticed his clothing 
hanging in the apartment (E. 29, 30, 26). Moreover, she saw 
him going in and out of the apartment during this period 
(E. 29). Although she claimed to see McLaughlin enter the 
apartment every evening, she was not certain that he in 
fact remained there through the night (E. 26, 29, 30). Al­
though she saw McLaughlin leave appellant Hoffman’s 
apartment at least twice early in the morning, she asserted 
that she did not know if he lived there every day during 
this period (E. 26, 29, 30). Disturbed by the presence of 
a colored man in her apartments, she reported the situation 
to the police (E. 23).

Detectives Stanley Marcus and Nicolas Valeriana of 
the Miami Beach Police Department went to Hoffman’s 
apartment at 7 :15 p.m., February 23, 1962, to investigate a 
charge of neglect of her minor son (E. 35, 44). They 
knocked at the door and a man’s voice answered, “ Connie, 
come in,” but the door was not opened (E. 51). Valeriana 
went to the back of the apartment and found McLaughlin 
leaving through the rear door (E. 70). In the questioning 
which followed, McLaughlin admitted that he had been liv­
ing there with Hoffman (E. 46) and that on one occasion 
he had had sexual relations with her (E. 47). The detec­



6

tives also observed a few pieces of McLaughlin’s wearing 
apparel in the room (R. 45). 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. 48). At trial Detective 
Valeriana identified her as a white woman, using his “many 
personal observations and experiences” as a standard (R. 
59). On the basis of his “ factual contacts, experiences and 
observations,” he characterized Dewey McLaughlin as a 
Negro (R. 58, 65).

Joseph DeCesare, a secretary in the City Manager’s 
Office, testified that while securing a civilian registration 
card, McLaughlin stated in January 1961 that he “ was 
separated and that his wife’s name was Willie McLaughlin” 
(R. 74, 75). 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 com­
mon law husband in September or October 1961 (R. 83, 84).

March 1, 1963, an information was filed against appel­
lants charging them with violating F. S. A. §798.05 (R. 3). 
Motion to quash the information on grounds that it was 
vague and deprived them of due process and equal pro­
tection of the laws was denied (R. 5, 6). Motions for a 
directed verdict arguing that F. S. A. §1.01(6) (defining 
the term “ Negro” as used in F. S. A. §798.05) was vague 
(R. 61) and that race remained unproven were made and 
denied (R. 88-89).

The trial judge instructed the jury that in Florida a 
Negro and a white person could not have been lawfully 
married, either by common law or formal ceremony (R. 94).

Appellants were convicted by a jury and sentenced to 
30 day jail terms and fines of $150 (R. 7-9).



7

A motion for new trial was filed alleging error in the 
court’s failure to quash the information as a violation of 
Fourteenth Amendment rights (E. 10, 11) and was denied 
(R. 11).

On appeal to the Supreme Court of Florida appellants 
assigned errors relying on the due process and equal pro­
tection clauses of the Fourteenth Amendment (R. 12).

The Court, in affirming the conviction, discussed only 
F. S. A. §798.05 which it found constitutional in light of 
Pace v. Alabama, 106 U. S. 583 (R. 99-102). Its jurisdic­
tion derived from the trial court’s passing on the validity 
of a state statute (R. 99).

In the Florida Supreme Court, appellant’s brief also 
argued that the instruction to the jury on Florida’s mis­
cegenation law contravened the Fourteenth Amendment 
(Tr. of Record (on file in this Court) 180-183). The State 
urged that miscegenation laws were constitutional and that 
the instruction could only be harmless error (Tr. of Record 
195-199). Appellants sought rehearing, attempting to se­
cure the Florida Supreme Court’s discussion of this issue 
(R. 102-103), but rehearing was denied without opinion 
(R. 105).

Summary of Argument

I.

Appellants were convicted of a crime under an explicitly 
racial Florida law, which punishes an interracial couple 
for acts which are not prohibited if committed by persons 
of the same race. No other Florida statute, including the 
lewdness law (F. S. A. §798.02), contains the identical ele­
ments of the crime defined in F. S. A. §798.05 used to con­
vict petitioners. Florida has advanced no justification for 
the racial distinctions made by this law. The racial clas­



8

sification is unreasonable, and this Court should strike it 
down as it has every other segregation law from Buchanan 
v. Warley, 245 U. S. 60 to Peterson v. Greenville, 373 U. S. 
244. This case is different from Pace v. Alabama, 106 IT.' S. 
583, but if the reasoning of Pace extends to cover this case, 
Pace should be overruled as inconsistent with many sub­
sequent decisions in this Court.

II.

The trial court’s jury instructions based on Florida’s laws 
prohibiting interracial marriages (F. S. A. Const., Art. 16 
§24; F. 8. A. §§741.11, 741.12) prevented the jury from 
considering appellants’ possible common law marriage. The 
jury instruction was not harmless since Florida recognizes 
common law marriage, there was sufficient evidence to go 
to the jury on the question, and the state had the burden 
of proving that appellants were not married to each other.

The states have power to control many aspects of mar­
riage, but no power to prohibit marriage on the basis of 
irrational discriminations. Florida has advanced no reason 
to support this racial distinction. Arguments advanced by 
other states fly in the face of all scientific knowledge which 
rejects the theories of “ pure races,” and Negro inferiority. 
The miscegenation laws are relics of slavery based on race 
prejudice. State enforcement of these laws violates the 
Fourteenth Amendment for the same reasons that all segre­
gation laws have been invalidated.

III.

To convict under F. S. A. §798.05 Florida had to prove 
that McLaughlin was a “ Negro” (as defined in F. S. A. 
§1.01(6)), and that Hoffman was “ white” (nowhere defined 
in Florida law). The state made no effort to prove race by 
reference to the Florida statutory definition (decreeing



9

that a Negro is a person with “ one-eighth or more of A fri­
can or Negro blood” )- The definition is meaninglessly cir­
cular and based on assumptions contrary to scientific fact. 
If the definition is taken literally the conviction violates 
due process, being based on no evidence of an element of 
the offense. But Florida relied on an “ appearance” test, 
sanctioned by the trial judge, using opinion testimony by a 
policeman to prove race. The appearance test removes any 
pretense of statutory clarity and depends entirely on vary­
ing individual perceptions. This standard is far too vague 
to support criminal convictions. The vagueness of legal 
definitions of race vitiates crimes depending upon a per­
son’s race.

A R G U M E N T

I.

Appellants Were Convicted Under a Law Which Makes 
Race an Element of the Crime, Punishing a Negro and 
a White Person for Acts Not Prohibited When Done by 
Persons of the Same Race, and Thus Violates the Due 
Process and Equal Protection Clauses of the Fourteenth 
Amendment.

The statute under which the appellants were prosecuted 
and convicted, F. S. A. §798.05, proscribes the habitual 
occupancy of a room by an interracial couple.1 As an osten­
sible effort to restrain illicit sexual relations, the statute 
might seem to fall within the state’s traditional power to

1 “ 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, who shall 
habitually live in and occupy in the nighttime the same room 
shall each be punished by imprisonment not exceeding twelve 
months, or by fine not exceeding five hundred dollars.”



1 0

punish acts which affront public morality. Yet, the means 
by which Florida purports to serve this goal violate the 
Fourteenth Amendment by introducing a racial distinction 
into the State’s criminal laws, by a statute in which sexual 
relations are not even an element of the crime.

Section 798.05 defines a crime that can be committed 
only by two persons of opposite sex, when one is Negro and 
the other is white. Appellants submit that no Florida stat­
ute punishes similar conduct by persons of the same race. 
But Florida has argued that F. S. A. §798.05 covers the 
same act which is punished irrespective of race by F. S. A. 
§798.02 which prohibits (and provides a greater penalty 
for) lewd and lascivious association and cohabitation.2 The 
relevant Florida decisions, though, leave little room for 
such an interpretation.

There are three elements of the offense created by 
§798.05: 1) there must be a habitual occupancy of and 
living in a room in the nighttime, 2) the offenders must be 
a Negro man and white woman or white man and Negro 
woman, and 3) they must be persons who are not married 
to each other. Parramore v. State, 81 Fla. 621, 88 So. 472 
(1921); Wildman v. State, 157 Fla. 334, 25 So. 2d 808 
(1946); and see charge to jury at R. 93. Sexual relations 
between the parties are not a necessary element of the 
crime created by §798.05. Parramore v. State, supra.

On the other hand, it is well established that to convict 
for lewd and lascivious association and cohabitation

2 “F.S.A. §798.02. Lewd and lascivious behavior.
If any man and woman, not being married to eaeh other, 

lewdly and lasciviously associate and cohabit together, or if 
any man or woman, married or unmarried, is guilty of open 
and gross lewdness and lascivious behavior, they shall be pun­
ished by imprisonment in the state prison not exceeding two 
years, or in the county jail not exceeding one year, or by fine 
not exceeding three hundred dollars.”



(§798.02), the state must prove “ both a lewd and lascivious 
intercourse and a living together as in the conjugal rela­
tion between husband and wife.” Wildman v. State, supra, 
25 So. 2d at 808; Pinson v. State, 28 Fla. 735, 9 So. 706 
(1891); Whitehead v. State, 48 Fla. 64, 37 So. 302 (1904); 
Luster v. State, 23 Fla. 339, 2 So. 690 (1887); Cloud v. 
State, 64 Fla. 237, 60 So. 180 (1912); Langford v. State, 
124 Fla. 428, 168 So. 528 (1936). Sexual intercourse is 
very definitely an element of this crime, and single or 
occasional acts of incontinence will not sustain a con­
viction under §798.02. Wildman v. State, supra; Penton 
v. State, 42 Fla. 560, 28 So. 774 (1900); Thomas v. State, 
39 Fla. 437, 22 So. 725 (1897).

Clearly, §798.05 (living in the same room) and §798.02 
(lewdness) are distinct both on their face and as inter­
preted. Florida, in fact, has simultaneously prosecuted 
persons under both statutes, and in reversing both convic­
tions the Florida Supreme Court gave no indication that 
it regarded the laws as identical.3 Wildman v. State, 157 
Fla. 334, 25 So. 2d 808 (1946). It is notable that in reversing 
the convictions under both statutes in Wildman, supra, 
the case was remanded for new trial without the slightest 
intimation that the state could not again proceed on both 
charges. Wildman is apparently still good law; it was fol­
lowed in Callen v. Florida, 94 So. 2d 603 (1957).

Florida, thus, has created a specific crime, relating ex­
clusively to interracial couples. Mere proof that an un­
married man and woman of the same race habitually occu­

3 It would have been unusual for the Florida Supreme Court, 
unless clearly compelled, to attribute to its legislature the mean­
ingless gesture of duplication. It has not done so. Surely the 
legislature had some difference in mind when it set different pun­
ishments in §798.02, and §798.05. Compare §798.03 (fornication 
generally: 3 months imprisonment and $30 fine) with §798.04 
(white person and Negro living “ in adultery or fornication” : 12 
months imprisonment and $1,000 fine).



pied a room in the nighttime would not establish a crime 
under Florida law.4

By labeling “ criminal” conduct that might be otherwise 
innocent, merely because the parties are of different races, 
Florida has violated its duty to afford to all persons the 
equal protection of the laws. “Distinctions between citi­
zens solely because of their ancestry are by their very 
nature odious to a free people whose institutions are 
founded upon the doctrine of equality.” Hirabayashi v. 
United States, 320 U. S. 81, 100. And see, Korematsu v. 
United States, 323 U. S. 214, 216; Brown v. Board of Edu­
cation, 347 U. S. 483; Hamilton v. Alabama, 376 U. S. 650; 
Anderson v. Martin, 379 U. S. 399.

Florida, however, has not advanced (and cannot advance) 
any constitutionally acceptable basis for making the con­
duct described by §798.05 a crime only when persons of dif­
ferent races are involved. Surely, there is no justification 
for eliminating solely on a racial basis the requirements 
of proof that the state must meet in other crimes against 
public morality. The racial classification is unreasonable, 
is not clearly related to any legitimate governmental ob­
jective, and violates the due process and equal protection 
clauses of the Fourteenth Amendment. Cf. Buchanan v. 
Warley, 245 U. S. 60; Bolling v. Sharpe, 347 U. S. 497.

4 Cf. Grice v. State, 76 Fla. 751, 78 So. 984 (1914), where de­
fendants were acquitted of adultery (F. S. A. §798.02) since there 
was no showing of sexual relations though there was evidence they 
frequently slept in the same room along with others. Such conduct 
would seem covered by a charge under F. S. A. §798.05 if persons 
of different races engaged in it. The Court said that the “mere 
living together of two persons of opposite sexes, either of whom 
is married to a third person, does not constitute the offense of 
living in an open state of adultery, but there must be acts of sexual 
intercourse between them to constitute adultery. . . . ”  The adul­
tery law (§798.01) is the analogue of the lewdness law (§798.02) 
for persons married to others.



As early as 1896, this Court said that criminal justice 
must be administered “ without reference to consideration 
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. See e.g. Dorsey v. State 
Athletic Commission, 359 U. S. 533, affirming 168 F. Supp. 
149 (E. D. La. 1958) (interracial boxing a crime; held, 
unconstitutional); Holmes v. Atlanta, 350 U. S. 879, re­
versing 223 F. 2d 93 (5th Cir. 1955) (desegregated golf 
matches criminal; held unconstitutional); Brown v. Board 
of Education, 347 U. S. 483; Gayle v. Browder, 352 U. S. 
903, affirming 142 F. Supp. 707 (M, D. Ala. 1956); John­
son v. Virginia, 373 XJ. S. 61; Lombard v. Louisiana, 373 
U. S. 267; Wright v. Georgia, 373 U. S. 284.

In short, “ race is constitutionally an irrelevance” (Ed­
wards v. California, 314 U. S. 160, 185), and “ . . . dis­
criminations based on race alone are obviously irrelevant 
and invidious.” Steele v. Louisville & N. R. Co., 323 U. S. 
192, 203; cf. Abington School District v. Schempp, 374 XJ. S. 
203 (Justice Stewart dissenting); Goss v. Board of Educa­
tion, 373 U. S. 683, 687-688. In the words of the first Jus­
tice Harlan, the Constitution is “ color blind,” Plessy v. 
Ferguson, 163 XJ. S. 537, 558 (dissenting opinion). The 
decision below is in the teeth of this Court’s repeated hold­
ings that racial segregation laws are invalid.

This case is somewhat different from Pace v. Alabama, 
106 XJ. S. 583, where the conduct alleged was criminal irre­
spective of the race of the parties, although greater penal­
ties were proscribed when the offenders were not of the 
same race. Here no penalties are provided for men and 
women of the same race who commit the acts mentioned in 
F. S. A. §798.05. (Substantially lower penalties are inflicted 
under the fornication law—F. S. A. §798.03.) But appel­



lants have no hesitancy in urging that Pace should be over­
ruled if its reasoning is thought to extend to this case, and 
to support the distinction made here. The Pace decision 
rested on the notion that the state can treat an act differ­
ently when committed by persons of different races, and 
punish it as a “ different” crime. The silent premise is that 
the states can segregate the races. Pace stands as an iso­
lated vestige of the “ separate but equal” era inconsistent 
with the entire development of the law of equal protection 
since Brown v. Board of Education, 347 U. S. 483, or per­
haps even since Buchanan v. Warley, 245 U. S. 60. This 
Court has cited Pace only two times in the eighty-two 
years since it was decided and race discrimination was not 
an issue in either of those cases.5 6 It ought to be overruled. 
Probably no segregation law would ever have been invali­
dated if this Court followed the reasoning of Pace that 
equality is assured merely because Negro and white co­
defendants are liable to the same punishment. Indeed, most 
segregation laws struck down in recent years have been 
indiscriminately applicable to both Negro and white vio­
lators of the segregation commands,6 but have neverthe­
less been invalidated on the ground that states serve no 
legitimate governmental functions by segregating the races. 
Cf. Peterson v. Greenville, 373 U. S. 244; and see Goss v. 
Board of Education, 373 U. S. 683, 687-688; Shelley v. 
Kraemer, 334 IT. S. 1, 22.

5 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).

6 See, for example, the segregation laws invalidated in Brown v. 
Board of Education (Briggs v. Elliott), 347 U. S. 483 (S. C. Code 
1952, §5377), and Gayle v. Browder, 352 U. S. 903, affirming 142 
F. Supp. 707, 710 (M. D. Ala. 1956) (Ala. Code 1940, §301 (31c)).



15

II.
Appellants Were Denied Rights Under the Due Proc­

ess and Equal Protection Clauses of the Fourteenth 
Amendment by Florida’ s Miscegenation Laws Which 
Had the Effect of Requiring the Jury to Disregard Evi­
dence of a Common Law Marriage If It Decided That 
One Appellant Was White and That the Other Was 
Negro.

The trial court’s instructions to the jury based on Flor­
ida’s miscegenation laws deprived appellants of the possi­
bility of acquittal on the ground of common law marriage 
because of race. As the language of the statute makes 
clear, marriage of the parties absolutely vitiates any prose­
cution based upon F. S. A. §798.05. The trial court, how­
ever, instructed the jury so as to effectively prohibit it 
from finding that appellants were married if it found that 
one was white and the other was Negro.7 This instruction 
was required by Florida Constitution, Art. 16, §24,8 and by 
F. S. A. §§741.II9 and 741.12,10 which prohibit and penalize 
marriages between white and Negro persons.11

7 In charging the jury the judge said (R. 94) :
“ 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 be utterly null and void.”

8 “24. Intermarriage of white persons and negroes prohibited
Sec. 24. All marriages between a white person and a negro, 

or between a white person and a person of negro descent to 
the fourth generation, inclusive, are hereby forever prohibited.”

9 “ 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



Before dealing with the constitutionality of the misce­
genation laws, we shall treat the state’s argument that the 
jury instruction was harmless even if erroneous and that 
the validity of the miscegenation laws may not be decided 
in this case. The error was harmful, and several factors 
lead to the conclusion that the binding jury instruction may 
have deprived appellants of an opportunity for acquittal.

First, Florida gives full recognition to common law mar­
riage and accords it the same legal incidents as a formal 
marriage. Chaachou v. Chaachou, 73 So. 2d 830 (Fla. 
1954); Navarro Inc. v. Baker, 54 So. 2d 59 (Fla. 1951). 
Indeed, in this case the trial judge instructed the jury as 
to Florida law on common law marriage (R. 94). This 
implies that he deemed the marriage issue sufficiently in­
volved to require the jury to decide it, if it found that ap­
pellants were of the same race.

Secondly, the evidence taken in its most favorable light 
tends to establish that appellants had contracted a common 10 11

contravention 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 any estate, real, personal or mixed, by inherit­
ance.”

10 “ 741.12 Penalty for intermarriage of white and negro persons
If any white man shall intermarry with a negro, or if any 

white woman shall intermarry with a negro, either or both 
parties to such marriage shall be punished by imprisonment in 
the state prison not exceeding ten years, or by fine not ex­
ceeding one thousand dollars.”

11 In addition, Florida prohibits county judges from issuing mar­
riage licenses to Negro and white couples (F. S. A. §741.13), and 
ministers and other persons from performing a ceremony of mar­
riage for an interracial couple (F. S. A. §741.15). The penalties 
for violations are respectively 2 years imprisonment and $1,000 
fine (F. S. A. §741.14) and one year and $1,000 (F. S. A. §741.16).



17

law marriage. There was enough evidence elicited from 
the State’s witnesses to create an inference of common-law 
marriage so as to constitute a jury question.

Although there was testimony that McLaughlin had in 
January 1961 made a statement that he was “ separated” 
from Willie May McLaughlin (whose last address he did 
not know) (R. 74), there was no explanatory or corroborat­
ing evidence before the jury indicating a prior legal mar­
riage, or that a prior wife was still alive, or that there 
had been no divorce during the intervening year before this 
charge was brought. Appellant Hoffman held herself out 
in conversations with her landlady and in “ signing in” at 
the apartment as being married to McLaughlin (R. 23). 
She did the same thing in conversation with a welfare 
worker who testified that appellant said that “ she began 
living with Mr. McLaughlin as her common-law husband” 
(R. 84). Whatever the effect of the other statements men­
tioned by the welfare worker—who seemingly did not dis­
tinguish between a “ ceremonial” marriage and a “ legal” 
one—any conflicts or inconsistencies should have been re­
solved by the jury. All of these matters might have been 
weighed by the jury in appraising the evidence if the 
instruction had been different.

Statements by the parties to each other of present and 
binding intention to be married effect a common law mar­
riage in Florida. LeBlanc v. Yaivn, 99 Fla. 467, 126 So. 
789 (1930); In re Thompson’s Estate, 145 Fla. 42, 199 So. 
352 (Fla. 1940). The testimony of the parties that they 
uttered to each other words of present intention provides 
the best evidence of common law marriage. But, where the 
best evidence cannot be obtained, reputation and cohabita­
tion will raise and support a presumption of common law 
marriage, LeBlanc v. Yawn, supra. Appellants did not tes­
tify and could not be required to, as they enjoyed constitu­
tional privileges against self incrimination in this criminal



18

proceeding. F. S. A. Const., Declaration of Eights, §12; see
also Malloy v. Hogan, ------  U. S. ------ , 12 L. ed. 2d 653.
Since their own testimony—the best evidence—was there­
fore not available, testimony as to reputation and cohabita­
tion could have sufficed to satisfy a jury.

Thirdly, the burden was on the State to demonstrate 
beyond a reasonable doubt that appellants were not mar­
ried. Although the attorney general has argued that Florida 
cannot be forced to prove a negative and that marriage 
constitutes an affirmative defense to be proved by the 
defendants, Florida law seems to be otherwise. In his 
charge the trial judge listed non-marriage as one of the 
elements to be proved (R. 93). In Orr v. State, 129 Fla. 
398, 176 So. 510, 511 (1937), where defendants were prose­
cuted under a law punishing “ [wjhoever, not standing in 
the relation of husband or wife . . . maintains or assists the 
principal or accessory before the fact or gives the offender 
any other aid, knowing that he has committed a felony 
. . .  ” , the court held that the burden of proving the non­
existence of common law marriage rested upon the state. 
Well-settled rules of Florida practice, moreover, require 
the state to prove each and every element of the offense 
and the allegations in the information. See, Campbell v. 
State, 92 Fla. 775, 109 So. 809 (Fla. 1926); Lewis v. State, 
53 So. 2d 707 (Fla. 1951). The information filed against 
appellants charged them with “not being married” (R. 3).

Thus the constitutionality of the miscegenation law is 
involved. This Court has never ruled on the issue. Pace 
v. Alabama, supra, did not involve a marriage. Although 
the statute in Pace forbade intermarriage (as well as 
adultery and fornication) no charge of intermarriage was 
made. No decision on the merits of this issue was rendered 
in either Naim v. Naim, 350 U. S. 891, app. dismissed 350 
U. S. 985, or Jackson v. Alabama, 348 U. S. 888 (denial of 
certiorari).



19

The states have traditionally exercised a great degree of 
control over the institution and incidents of marriage. Yet, 
in this matter, as in others, the state’s power is not un­
trammelled, but must yield to the constitutional strictures 
of due process and equal protection. Cf. Meyer v. Ne­
braska, 262 U. S. 390. The right to marry is a protected 
liberty under the Fourteenth Amendment ; it is one of the 
“ basic civil rights of man.” Skinner v. Oklahoma, 316 U. S. 
535, 541. In Meyer v. Nebraska, supra, the Court declared 
(262 U. S. 390, 399):

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 right to choose one’s own husband or wife is clearly 
a right going to the very heart of personal liberty and 
freedom. A government that interferes with personal 
choice in marriage is regulating one of the most vital areas 
of its citizens’ lives. The due process and equal protection 
clauses surely prevent the states from engaging in irra­
tional discriminations in this vital area of personal 
liberty.12

Therefore, it is not enough for Florida to insist that it 
can, without limit, abridge the liberty of persons to marry 
under the guise of the police power. Who would doubt, for

12 Cf. Perez v. Lippold, 32 Cal. 2d 711, 198 P. 2d 17, 19 (1948) : 
“Marriage is thus something more than a civil contract subject 
to regulation by the state; it is a fundamental right of 
free men. There can be no prohibition of marriage except for 
an important social objective and by reasonable means.”



20

example, that Florida could not validly ban marriages be­
tween Republicans and Democrats, or between redheads 
and brunettes. The states cannot prohibit marriage on any 
irrational basis they choose. In prohibiting marriage on 
a racial basis, Florida has advanced no rational justifica­
tion for the discrimination effected.

But while it has advanced no reasons, those which it 
might be expected to bring forth in an effort to validate 
its miscegenation laws are plainly suspect. On their face, 
these racial laws run counter to the “ color-blindness” of 
the Constitution. Plessy v. Ferguson, 163 U. S. 537, 558 
(dissenting opinion); cf. Koremutsu v. United States, 323 
U. S. 214.

Some courts have upheld miscegenation statutes, predi­
cating their reasonableness on beliefs in the value of 
“ racial purity.” It has been said that a purpose is pre­
venting the mixing of “ bloods.” State v. Pass, 59 Ariz. 
16, 121 P. 2d 882 (1942). In Lonas v. State, 50 Tenn. 310, 
311 (1871), the Court stated:

The laws of civilization demand that the races be kept 
apart in this country. The progress of either does 
not depend on an admixture of blood.

#  *  #

[Intermarriage would be] a calamity full of the sad­
dest and gloomiest portent . . . .

A  Georgia court announced that:

Such [moral and social] equality does not exist and 
never can. The God of nature made it otherwise, and 
no human law can produce it and no human tribunal 
can enforce it. . . . From the tallest archangel in 
Heaven, down to the meanest reptile on earth, moral 
and social inequalities exist and must continue to exist



21

through all eternity. (Scott v. Georgia, 39 Ga. 321, 326, 
(1869).)

Some courts have found a justification for these laws in 
the state’s power to preserve and ensure the health of their 
citizens, as Missouri’s court did in 188313 and as a Georgia 
court did in 1869.14

Clearly all of these grounds for miscegenation15 laws 
rest on theories long deemed nonsensical throughout the 
world’s community of natural scientists. The idea of ‘‘pure 
races” has long been abandoned by science. The distin­
guished American geneticist Theodosius Dobzhansky has 
said:

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

13 “ It is stated as a well authenticated fact that if the issue of 
a black man and a white woman and a white man and a black 
woman intermarry, they cannot possibly have any progeny, and 
such a fact sufficiently justifies those laws which forbid the inter­
marriage of blacks and whites. . . . ” State v. Jackson, 80 Mo. 175, 
179 (1883).

14 “ The amalgamation of the races is not only unnatural, but is 
always productive of deplorable results. Our daily observations 
show us, that the offspring of these unnatural connections are gen­
erally sick and effeminate, and that they are inferior in physical 
development and strength to the full-blood of either race. . . . 
Such connections never elevate the inferior race to the position 
of superior, but they bring down the superior to that of the inferior. 
They are productive of evil, and evil only, without any correspond­
ing good.”  (Emphasis added.) Scott v. Georgia, 39 Ga. 321, 323 
(1869).

15 Even the word “miscegenation,” to refer to intermarriage, was 
reportedly invented as a hoax in an 1864 political pamphlet con­
nected with a presidential campaign. See discussion in Montague, 
Man’s Most Dangerous Myth: The Fallacy of Race, 400 (4th ed. 
1964).



22

And see the many scientific authorities rejecting the “ pure 
race” idea collected in Weinberger, “ A Reappraisal of the 
Constitutionality of Miscegenation Statutes,” 42 Cornell 
L. Q. 208, 217, n. 68“

The 1952 UNESCO Statement On The Nature of Race,16 17 
prepared by distinguished natural scientists from around 
the world, concludes:

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

Similarly, other pseudoscientific props for racism, includ­
ing the notions of biological disadvantages of race mixture, 
and the assumption that cultural levels depend on racial 
factors, are completely undermined by modern scientific 
knowledge.18 For example, the 1952 UNESCO Statement, 
swpra, concludes by saying:

16 See also Note, 58 Yale L. J. 472 (1949).
17 The full title is : “ Statement on the Nature of Race and Race 

Differences—by Physical Anthropologists and Genticists, Septem­
ber 1952,” published by UNESCO. The statement, published in 
numerous publications by UNESCO (as well as a similar 1950 
UNESCO statement of social scientists) is conveniently available 
in Appendix A of Montague, op. cit., 361 et seq.

18 The importance of environmental factors in determining cul­
tural levels was noted by the court in Perez v. Lippold, 32 Cal. 2d 
711, 198 P. 2d 17, 24-25 (1948). Major contemporary research



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

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

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

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

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

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

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

demonstrating the absence of any relation between race and cul­
tural achievement is found in Beals and Hoijer, An Introduction 
to Anthropology 195-198 (1953) ; Hankins, The Facial Basis of 
Civilization 367-371 (1926); Kroeber, Anthropology 190-192
(1948) ; Ashley Montague, An Introduction to Physical Anthro­
pology 352-381 (1951) ; Yerkes, “ Psychological Examining in the 
U g A rm y” 15 Mem. Nat. Acad. Sci. 705-742 (1921).



24

Actually, the miscegenation laws never really rested on 
any firm scientific foundation nor were they intended to 
serve a scientific purpose. Miscegenation laws grew out 
of the system of slavery and were based on race prejudices 
and notions of Negro inferiority used to justify slavery, 
and later segregation.

Chief Justice Taney said in Scott v. Sanford, 19 How. 
393, 409 (1857):

[The miscegenation laws] show that a perpetual and 
impassable barrier was intended to be erected between 
the white race and the one which they had reduced to 
slavery, and governed as subjects with absolute and 
despotic power, and which they then looked upon as so 
far below them in the scale of created beings, that in­
termarriages between white persons and negroes or 
mulattoes were regarded as unnatural and immoral, 
and punished as crimes, not only in the parties, but in 
the persons who joined them in marirage. . . . This 
stigma, of the deepest degradation, was fixed upon the 
whole race (emphasis added).

As an earlier Alabama court, which found a miscegena­
tion statute unconstitutional, announced in Burns v. State, 
48 Ala. 195, 197 (1872) :19

It cannot be supposed that this discrimination was 
otherwise than against the negro, on account of his 
servile condition, because no state would be so unwise 
as to impose disabilities in so important a matter as 
marriage on its most favored citizens, without con­
sideration of their advantage.

The fact that the miscegenation doctrine relates to the 
caste system, rather than to any design to protect race

19 Burns was overruled in Green v. State, 58 Ala. 190 (1877).



25

“purity” , is confirmed by the harsh treatment of the chil­
dren of such marriages.20

These are laws with a “ purely racial character and pur­
pose,” like the regulations in Goss v. Board of Education, 
373 U. S. 683, 688. Miscegenation laws are “ relics of slav­
ery”  21 and their enforcement by the states violates the 
Fourteenth Amendment.22 This Court has struck down 
numerous segregation laws rejecting all manner of state 
claims of Negro inferiority, and claims of the legitimacy 
of governmentally required and encouraged racism. Brown 
v. Board of Education, 347 U. S. 483; Cooper v. Aaron, 358

20 For example, F. S. A. §741.11 declares that the issue of inter­
racial marriages “shall be regarded as bastards.”  It, in addition, 
renders them “ incapable of having or receiving any estate, real, 
personal or mixed by inheritance.” Florida, where the parents are 
of one race, has modified the rigors of the common law dealing 
with bastardy. F. S. A. §731.29. This latter class of illegitimate 
children can inherit property from the mother. Through acknowl­
edgment by the father they are enabled to inherit through him. 
Wall v. Altbello, 49 So. 2d 532 (1950). Yet, issue of interracial 
marriages cannot be legitimized and can never inherit property. 
Children can ordinarily be legitimized by the subsequent marriage 
of the parents. Where, however, the parents are of different races, 
F. S. A. §741.11 prevents them from legitimizing their children 
in this manner. See also, Note, “Rights of Illegitimates Under 
Federal Statutes,” 76 Harv. L. Rev. 337 (1962), for the possible 
impact of Florida miscegenation laws on federally created rights.

21 Of. Bell v. Maryland,------ U. S. — —, 12 L. ed. 2d 822, 871,
877 (separate opinion of Justice Douglas). F. S. A. §741.11 is 
derived from Fla. Act. Jan. 23, 1832, §§1, 2. Miscegenation laws 
now remain in effect in only nineteen states; see appendix, infra.

22 Florida’s belated argument that the Fourteenth Amendment 
is not binding on it because improperly proposed in the Senate is 
frivolous. But responsive to Florida’s argument concerning the 
vote needed to propose a constitutional amendment, see National 
Prohibition Cases, 253 U. S. 350, 386 (two-thirds of those present) ; 
cf. Missouri Pacific Bailway Co. v. Kansas, 248 U. S. 276. On June 
8, 1866, the Senate had a quorum; 44 members were present; 33 
of those present (far more than two-thirds) voted in favor of the 
proposed amendment. 46th Cong. Globe, part 4, p. 3042 (39th 
Cong., 1st Sess.).



2 6

U. S. 1; Goss v. Board of Education, 373 U. S. 683; John­
son v. Virginia, 373 U. S. 61; Peterson v. Greenville, 373 
U. S. 244; Lombard v. Louisiana, 373 U. S. 267; Wright 
v. Georgia, 373 U. S. 284; Watson v. Memphis, 373 U. S. 
526; Anderson v. Martin, 379 U. S. 399; Shelley v. Kraemer, 
339 U. S. 1; Buchanan v. Warley, 245 U. S. 60; Gayle v. 
Browder, 352 U. S. 903.23 The logic of those eases compels 
the same result here.

The issue is whether under our Constitution Negroes 
will have the same personal liberties and the same status 
as citizens given to white Americans. There can be but 
one answer if the purposes of the Fourteenth Amendment 
are to be realized in our law.

23 Cf. Perez v. Lippold, 32 Cal. 2d 711, 198 P. 2d 17 (1948) 
(invalidating California’s miscegenation law; and see Burns v. 
State, 48 Ala. 195 (1872), holding an Alabama miscegenation law 
violative of the Fourteenth Amendment and a federal statute 
(now 42 U. S. C. §1981) as well. (As noted above Burns was 
overruled by a later Alabama Court.)



27

III.

Appellants Were Denied Due Process Because Either 
There Was No Proof of Their Race or Florida’ s Racial 
Definition Is Vague.

In order to convict under F. S. A. §798.05, Florida was 
required to prove beyond a reasonable doubt that appellant 
McLaughlin was a Negro and that appellant Hoffman was 
white. Florida law has attempted to define “ Negro,” but 
there is no attempt at all to define a white person. The 
definition of “ Negro” in F.S.A. §1.01(6) is:

. . .  (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.

At the trial in this case the prosecution made no pretense 
of proving race (an element of the crime) by reference to 
the statutory rule—“ one-eighth or more of African or negro 
blood.” Instead, the prosecutor relied on a policeman’s 
opinion as to the race of both appellants (R. 65), and Ms 
opinion was admittedly based merely upon observation of 
them.

The State surely failed to satisfy the literal requirements 
of F. S. A. §1.01(6) as to either appellant. This is quite 
evident from a colloquy between the Court and counsel. 
Defense counsel objected to opinion evidence on appellants’ 
race saying that the State was bound by the statutory defi­
nition which mentioned “blood” ; that there was no such 
thing as “Negro blood” ; and that the statute was thus 
vague (R. 61). The trial judge, after expressing doubt as 
to his power to declare a state law unconstitutionally 
vague, said that this one had to be given a “ common sense” 
construction and that it must refer to “ anyone whose blood



is y8th from a Negro ancestor” (R. 62). When counsel 
pointed out that there was no proof concerning appellant’s 
ancestors, the Court said, “ Then we come back to the ap­
pearance again”  (R. 63), and ruled that “ anybody who had 
considerable experience in dealing and associating with 
Negro people and white people will be able to testify to 
some extent at least as to the race of particular persons” 
{Id.), and that any doubts were going to be “ up to the 
jury”  (Id.). The policeman was then allowed to express 
his opinion that McLaughlin was a Negro and Hoffman 
was white.

It may be noted that the instruction to the jury con­
sisted of a reading of F. S. A. §1.01(6) and a statement 
that an element of the crime was:

. . . That one defendant in this case has at least one- 
eighth Negro blood, and that the other defendant has 
more than seven-eighths white blood (R. 93).

If the statutory definition and the instruction to the jury 
are taken literally so as to require proof about “ blood” 
(or even if “blood” is taken to mean “ ancestors” ), there 
was a complete absence of proof of an essential element 
of the crime and the conviction denied due process under 
Thompson v. Louisville, 362 U. S. 199. There was no at­
tempt to prove that appellant Hoffman had more than 
seven-eighths “white blood” or that appellant McLaughlin 
had more than one-eighth “Negro blood.” Such an effort 
would have been doomed to failure. In the first place, the 
notion of “ Negro blood” and “white blood” rests on the 
misconception, entirely contrary to the known facts but 
nevertheless common, that there is some identifiable differ­
ence between “ Negro blood” and “white blood.” 24 Secondly,

24 See Montague, op. cit. supra at 287, 288:
“ The blood of all human beings is in every respect the same, 

with only two exceptions, that is, in the agglutinating prop-



29

there was still a failure of proof even using the idea that 
the statute refers to ancestors. The definition in §1.01(6) 
is circular insofar as it uses the notion of “ Negro blood” 
to define the word “ Negro” and meaningless in its use of 
“African blood” to define “Negro.”  Obviously, there are 
citizens of African nations belonging to every ethnic and 
anthropological classification. But, in any event, there was 
no evidence to connect McLaughlin with Africa. The rec­
ord shows only that he was born in La Ceiba,23 Honduras 
(R. 82). Finally, blood has nothing to do with hereditary 
characteristics. Montague, op. cit., CL. 14.

The appearance test upon which Florida ultimately re­
lies removes the last pretense of statutory clarity. It totally 
fails to provide a sufficiently definite standard to meet the 
requirements of due process. It is based on witnesses’ and 
jurors’ opinions of a person’s race, depends on their shift­
ing and subjective perceptions influenced by stereotypes

erties of the blood which yields the four blood groups and in 
the Rh factor. But these agglutinating properties of the four 
blood groups and the twenty-one serologically distinguishable 
Rh groups are present in all varieties of men, and in various 
groups of men they differ only in statistical distribution. This 
distribution is a matter not of quality but of quantity. There 
are no known or demonstrable differences in the character of 
the blood of different peoples, except that some traits of the 
blood are possessed in greater frequency by some than by 
others.

*  * *  #

“ . . . In short, it cannot be too emphatically or too often 
repeated that in every respect the blood of all human groups 
is the same, varying only in the frequency with which certain 
of its chemical components are encountered in different popu­
lations. This similarity cuts across all lines of caste, class, 
group, nation, and ethnic group. Obviously, then, since all 
people are of one blood, such differences as may exist between 
them can have absolutely no connection with blood.”

25 A Central American city, far from Africa; Rand-McNally 
Cosmopolitan World Atlas, p. 56.



HO

and conditioned by their differing personal experiences. 
In the “never-never land” of the appearance test, a per­
son’s race is not an objective fact at all, but depends en­
tirely on other persons’ views of him. Differences of opin­
ion and perception as to the race of persons are a common­
place of life which inevitably flow from the multitude of un­
satisfactory definitions. This standard obviously leaves 
the jurors to their own devices in determining race on any 
basis they choose. To make such a subjective ad hoc evalu­
ation the basis for criminal conviction violates elemental 
standards of fairness. To make a man conduct himself on 
the basis of a preliminary guess as to what his race will 
be in the opinion of some future unknown witnesses and 
jurors who will use no precise standards places liberty on 
a slippery surface unworthy of a civilized system of crimi­
nal law. Cf. Connolly v. General Construction Co., 269 
U. S. 385. This test is easily as nebulous as the phrase 
“ known to be a member of a gang” and the term “ gangster” 
in the New Jersey law invalidated in Lanzetta v. New 
Jersey, 306 IT. S. 451. The vagueness of legal definitions 
of race is a substantial reason why the creation of crimes 
depending on the race of parties violates the Fourteenth 
Amendment.



31

CONCLUSION

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

Respectfully submitted.

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

10 Columbus Circle 
New York, New York

Louis H. P ollak 
127 Wall Street 
New Haven, Connecticut

W illiam T. Coleman, Jr.
2635 Fidelity-Philadelphia 
Trust Bldg.
Philadelphia 9, Pennsylvania

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

Attorneys for Appellants



A P P E N D I X



APPENDIX

STATES REPEALING- MISCEGENATION LAWS 
IN RECENT YEARS

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

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

3. Colorado (1957): Colorado Laws 57, §1, at 334, 
repealing Colo. Rev. Stat. §§90- 
1-2, 90-1-3 (1953).

4. Idaho (1959): Laws 1959, ch. 44, §1, at 89, de­
leting Idaho Code Ann. §32-206 
(1947).

5. Montana (1953): Laws 1953, eh. 4, see. 1, repeal­
ing Laws 1909, ch. 49, secs. 1-5.

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

7. Nevada (1959): Nev. Stat. 1959, at 216, 217, re­
pealing Nev. Rev. Stat. tit. 11, 
eh. 122, 180 (1957).

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

9. Oregon (1951): O. R. S. §106.210 (1963), repeal­
ing Ore. Code Law Ann. §§23- 
1010, 63-102.

10. South Dakota (1957): S.D. Sess. Laws 1957, ch. 38,
repealing S.D. Code §14.990 
(1939).
Sess. Laws 1963, eh. 43, repeal­
ing Utah Stat. §30-1-2 (1953).

11. Utah (1963):



2a

STATES REPEALING MISCEGENATION LAWS 
IN LAST CENTURY

1. Iowa: Omitted—1851.
2. Kansas: Omitted—1857. Laws c. 49 (1857).

3. Maine: Repealed 1883. Laws p. 16 (1883).
4. Massachusetts: Repealed 1840. Acts, c. 5 (1843).
5. Michigan: Prior interracial marriages legalized 

in 1883. Act 23, p. 16 (1883).
6. New Mexico: Repealed 1886. Laws p. 90 (1886).

7. Ohio: Repealed 1887. Laws p. 34 (1887).
8. Rhode Island: Repealed 1881. Acts, Jan. Sess. p. 108 

(1881).
9. Washington: Repealed 1867. Laws pp. 47-48 (1867).

STATES NEYER ENACTING STATUTES WHICH 
PROHIBIT INTERRACIAL MARRIAGE

1. Alaska 2. Connecticut 3. Hawaii
4. Illinois 5. Minnesota 6. New Hampshire
7. New Jersey 8. New York 9. Pennsylvania

10. Vermont 11. Wisconsin



3a

STATES AT PRESENT PROHIBITING 
INTERRACIAL MARRIAGES 

(PENALTIES FOR INFRACTIONS 
ARE INDICATED)

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

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

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

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

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

6. Indiana: Ind. Ann. Stat. §44-104 (Burns, 1952); im­
prisonment of 1 to 10 years and fine of $100-1000 
Ind. Ann. Stat, (Burns. 1952) §10-4222.

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

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

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

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

11. Missouri: Mo. Rev. Stat, §451.020 (1959); 2 years in
state penitentiary; and/or a fine of not less than $100, 
and/or imprisonment in county jail for not less than 
3 months (Mo. Rev. Stat. §563.240).



4a

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

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

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

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

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

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

18. West Virginia: W. Ya. Code Ann. §4697.
19. Wyoming: Wyo. Stat. §20-18 (1957); $1000 fine and/or

imprisonment up to 5 years (Wyo. Stat. §20-19).



38