Perez v. Sharp

In Bank. Oct. No. 20305. 1948.] A. [L. SHARP, al., Petitioners, W. G.

ANDREA D. PEREZ et Clerk, etc., Respondent. County Daniel G. Petitioners. Marshall for (Los County Angeles), Harold W. Kennedy, Counsel and County Stanley, Deputy Counsel, Charles Re- Jr., C. for spondent.

TRAYNOR, proceeding mandamus, peti- J. In this compel County Angeles County tioners seek to Clerk of Los registry (Civ. Code, 69a) to issue them a certificate of and § marry. Code, 69.) application In the (Civ. a license to § petitioner Perez is a white license, Andrea states that she Sylvester Negro. person petitioner Davis that he is license, invoking certificate and Respondent refuses to issue the “. . . Code, 69, provides: Civil section which no license authorizing person be issued of a white with a Malay Negro, Mongolian member of the race.” mulatto, or Code, 60, Code, implements Civil section 69, Civil section negroes, marriages persons provides: “All of white Malay Mongolians, race, or mulattoes are members of the originally appeared in the illegal This section and.void.” prohibited marriages 1872, Civil Code in but at that time it Negroes persons or mulattoes. between white marriages prohibiting succeeded a statute and authoriz- ing the imposition penalties upon persons certain criminal contracting solemnizing 1850, (Stats. 140, p. 424.) or them. eh. Code, amended, Since Civil section has been twice prohibit marriages persons first to between white and Mon- golians (Stats. p. 335) subsequently prohibit marriages Malay between members of white (Stats. 1933, p. 561.) race. question

Petitioners contend the statutes in are uncon- grounds stitutional on the prohibit free exercise religion deny of their them participate fully in They religion. sacraments are members of the Roman They Catholic Church. maintain that since the church forbidding marriages Negroes has no rule between and Caucasians, they are entitled to receive the sacrament matrimony. provision of the First Amendment to the Con stitution of the Congress United States that shall make no religion, law “respecting prohibiting an establishment of the free encompassed concept exercise thereof” is liberty in legislatures the Fourteenth Amendment. State competent Congress are therefore no more than to enact such (Cantwell law. Connecticut, 296, a v. 310 303 U.S. S.Ct. [60 900, They 84 1352].) may, L.Ed. 128 A.L.R. 1213, however, regulate protection society, conduct the for of and insofar regulations proper a are directed towards end and unreasonably they may are not discriminatory, indirectly religious activity affect infringing without the constitutional guarantee.' Although freedom of conscience the freedom absolute, (Cantwell to believe are the freedom is not. to act Connecticut, supra, pp. 303-304.) v. at regulation proper of is considered a func legislature may tion of the It is well state. settled that monogamy declare be “law of life under its to the social though dominion,” might inhibit even a law free religious (Reynolds v. practices. exercise of certain United ; Beason, States, 98 166 L.Ed. Davis v. 145, U.S. [25 244] 637].) If 333, 299, 343 33 L.Ed. 133 U.S. S.Ct. miscegenation present proceeding law under attack employs directed at a evil and a reasonable means social prevent it evil, regardless to is valid of its incidental religious If, upon groups. of particular effect conduct discriminatory irrational, hand, other the law is liberty unconstitutionally only religious restricts not but it marry liberty to as well. process The due clause of the Fourteenth Amendment protects personal liberty yet wholly an area delimited. of attempted “While to this Court has not define with exactness liberty guaranteed, thus the term received much con things definitely sideration and some of the included have been doubt, merely stated. Without it denotes not freedom from bodily right restraint, also of to con the individual tract, engage life, to occupations the common of acquire to knowledge, marry, useful to home and establish a up bring according to children, worship to God the dictates enjoy privi conscience, and, generally, his own those to leges recognized orderly long at common law as essential to the pursuit happiness by (Italics Meyer added; free men.” 1042].) Nebraska, 625, v. 390, U.S. S.Ct. Marriage something is thus more than a contract civil subject regulation right it is fundamental state; marriage except free men. There can no prohibition be for important objective an means. reasonable social the broad areas state interest

No within law arbitrary. discriminatory inter unreasonably state’s education, example, empower does not public est in children to receive instruction Legislature compel school thereby away only, for would take public teachers upbringing and education of “direct right parents (Pierce Society Sisters, their control.” children under 39 A.L.R. 571, L.Ed. 510, 534-535 268 U.S. prevention vital concern in the Again, the state’s not em its citizens does mental health of of crime and the Legislature deprive “individuals power the right to a race—the perpetuation basic of criminals authorizing the sterilization offspring” hearing. a fair and without arbitrary basis of classification Oklahoma, (Skinner 1655].)1

86 L.Ed. 1 J., indicating concurring Jackson, opinion that See also the might biological experiment invalid: as a of criminals sterilization represented legislatively a extent to limits to the which “There are experiments expense biological majority may dignity at conduct powers minority—even personality those of a natural majority guilty But this define as crimes. of what the have been who problem, reaching I which mention Act falls down before question may implication not exist because that such avoid (316 546-547; judgment.” I U.S. On it also reserve discussed. see would 1380.) 51 Tale L.J. right as the to send right marry is as fundamental right offspring. to have particular one’s child to a school or legislation Indeed, dealing are here with which involves “We rights Marriage procreation one of the basic civil of man. very are fundamental to the existence and survival of the (Skinner v. Oklahoma, p. 541.) Legislation race.” supra, at infringing upon preju must more than be based oppressive comply dice and must be free discrimination to from with the requirements process equal constitutional of due protection of the laws.

I right join right marry Since choice, a person prohibits of one’s statute with the marrying from a member of a race individual other than his thereby scope restricts the of his choice and own restricts his marry. right must therefore be determined whether the can restrict that on the basis of race state alone without violating equal protection of the laws clause of the United States Constitution. solely between citizens because their an

“Distinctions very nature odious to a cestry people free are whose upon the equality. founded doctrine of For institutions legislative classification or reason, discrimination based equal held protection. been to be denial of race alone often Hopkins, Yi ck Wo v. U.S. S.Ct. Trinidad, ; Cong Eng v. Yu 271 U.S. S.Ct. 220] 1059]; Texas, Hill 619, 70 L.Ed. U.S. 400 (Hirabayashi 1159, 86 L.Ed. v. United States, 320 1559].” 87 L.Ed. the Hira bayashi Supreme case the United States Court held that de spite the fact that under the Constitution of the United States “racial discriminations are most circumstances irrelevant prohibited, and therefore no means that, follows in deal ing Congress perils war, with the and the Executive are wholly precluded taking into account those facts and circumstances which are relevant to for our national measures defense and for prosecution the successful war, place ancestry in fact citizens of one in a different category from others. adoption by . . . The Government, in the crisis war and of invasion, threatened of measures for public safety, recognition based and cir facts cumstances which group indicate one national ex- safety others, may more than is not menace that

traction and is not wholly beyond the limits of the Constitution to merely in other and most circumstances because condemned . . alone that . The fact at- distinctions are irrelevant. racial by Japan rather than our shores was threatened tack on enemy apart citizens from others who power these another set (320 81, U.S. particular Japan.” association with have no could base measures 100-101.) Whether or not a state similar emergency face of caused national in the the peril on the of clause of States equal protection laws the United Con- the government, the it stitution, apply to federal does not ancestry on clearly could not make a distinction based such emergency. of an in the absence members of one race from prohibiting A state law designed to another race meet marrying members of emergency. arising out of In peril present clear and clearly emergency the state cannot base law of an absence rights general fundamental of individuals on as impairing groups. It racial has been said that sumptions as to traits of against any 60 does not discriminate section a statute applies alike to all whether group, persons racial since (In Negro, any race. Caucasian, or members other re 393, 911].) Paquet, 101 Ore. P. The de Estate races, question, however, is not whether different cisive each equally group, right as a treated. considered individuals, marry groups. to is the not of racial equal protection clause of the United Constitution States does rights Negro race, race, not refer to the Caucasian rights (State race, of individuals. other but to Canada, 305 ex rel. v. Missouri Gaines S.Ct. 208]; Atchison, Topeka L.Ed. & 232, 83 McCabe Santa Fe Ry. Co., 235 U.S. 161-162 construing equal protection laws clause of Constitution, Supreme United States Court declared constitutionality that the must be tested ac state action cording rights to whether the of an individual are restricted Thus, holding because of his race. invalid state enforce restricting property real occupation ment of covenants race, grounds Supreme on Court of the United States declared: “The created the first section are, by terms, guaranteed its Fourteenth Amendment is, therefore, petitioners individual. no answer to these say deny also be courts induced white grounds of occupancy ownership rights of is not achieved of the laws Equal protection race or color. inequalities.” (Shelley imposition of through indiscriminate -].) 836, 846, 92 L.Ed. Kraemer, 334 U.S. Negro contended the state’s case, where a In an earlier study law with others equal facilities give him failure rights under the constitutional impaired his within state rejected clause, any consideration the court equal protection among legal for education of the demand of the difference right was stating: “Petitioner’s persons Negroes, white he individual was entitled personal a It was an one. laws, bound equal of the and the State was protection to the legal its for education to furnish him within borders facilities the there afforded for substantially equal to those which State negroes sought persons race, of whether or not other the white (State ex rel. opportunity.” the same Missouri Gaines of Canada, 232, ; v. S.Ct. 83 L.Ed. 337, 305 U.S. 208] Sipuel 299, Regents, Board 332 U.S. 631 S.Ct. Similarly, regard furnishing sleep to L.Ed. -].) with the ing, trains, Supreme chair facilities on the dining, and car though was Court of the has held that even there United States Negroes among among than less demand for such facilities substantially whites, the to right Negro of a member of the race the equal right a the and not of facilities was individual “ equal pro to group racial : It is the individual who is entitled carrier, laws, and if he is denied a common tection law, a authority of a state acting matter under the which, journey facility course of or convenience his substantially circumstances, is furnished to under the same traveler, may complain he that his consti properly another Atchison, privilege (McCabe v. tutional has been invaded.” Topeka Railway Co., 151, & Fe Santa U.S. 169].) 59 L.Ed. In these cases the United States

Supreme right of an individual Court determined that race can to be treated without discrimination because of his equal affording substantially separate be met facilities holding the different races. A treatment to the members of segregation impair right individ that such does not clearly enjoy ual trains a legal to ride on or to education is right marry. inapplicable an individual Since to to right marry join in mar the essence of the freedom person choice, for riage segregation statute one’s marriage necessarily impairs marry. public determining requires whether interest marriage persons, between two the state prohibition legitimate matters of concern to consideration

may into take might peril become a Thus, disease the state. offspring could or to spouse prospective marriage. (See example, for disqualification made a 79.06.) legislation, however, must 79.01, Such Code, Civ. §§ arbitrary individual, not on classifi on tests be based and must be administered without races, or groups cations (Yick Hopkins, Wo grounds of race. on the discrimination 1064, 30 L.Ed. It has been prone more than the Cau races are suggested that certain If the state determines as tuberculosis. to diseases such casian endanger partner a marital would certain diseases persons marrying, so diseased may prohibit offspring, it regardless all of race. apply must the statute but by a concern to diminish 69 are not motivated 60 and Sections marriage, for make race disease the transmission Negro disqualification. Thus, a tubercular disease the and not may marry subject to the race tubercular Caucasian or a Negro and a Caucasian who free from limitation, purpose If marry each other. of these disease marriages by persons who do not prevent was to sections may prop that the state qualifications for have quali possession make the of such they would erly prescribe, By all alike. restrict for members of races the test fications marry alone, of race right to basis ing individual’s equal protection of the laws clause of the violate Constitution. United States

. II question argued length at however, have parties, They arbitrary unreasonable. have whether the statute equal protection clause the state that under the assumed regu according legislation race in to their classify individuals If rights. it be assumed that a fundamental lating their validly equal protection be made under the can classification arising from an those emer in circumstances besides clause question would remain whether statute’s gency, based on between groups racial differences classification of legitimate bearing a substantial relation to groups those Angeles, 10 (Barker Bros., Inc. v. Los legislative objective. Ellis, 165 97]; P.2d etc. R. Co. v. 603, 609 Cal.2d [76 Gulf Quaker ; City 255, 41 L.Ed. 150, 165, 166 S.Ct. 666] U.S. [17

719 553, 389, 400 S.Ct. Pennsylvania, 277 U. S. Cab Co. [48 be viewed with Race must 927].) restrictions 72 L.Ed. adopted “was great suspicion, for Amendment the Fourteenth on the designed discriminate prevent legislation state (Railway Corsi, 326 race Mail Ass'n. v. basis of or color” 2072]; v. Interna 88, 1483, 89 Williams [65 586, Boilermakers, tional 27 Cal.2d Brotherhood against 903]) policy expresses P.2d “a definite national Marin (James color.” discriminations because race or ship Corp., 329, A.L.R. 721, 25 Cal.2d P.2d Any discriminating 900].) legislation against persons state strong pre on the basis of race or color to overcome the sumption “Only policy. inherent in constitutional exceptional most excuse discrimination on circumstances can that basis in . . equal protection the face of clause .” (Oyama 275, v. California, 332 U.S. L.Ed. -].) history We shall examine therefore legislation question support arguments and the in its determine any whether there exceptional circumstances justify sufficient to it. (Stats. 1850, miscegenation statute ch.

California’s first 424) time as two stat p. was enacted at same other concerning race. has been held that these three stat utes together. pari and therefore to be read utes were materia (Estate Stark, 209, 214 Cal.App.2d P.2d provided: companion “No black or mulatto The two statutes Indian, permitted give person, or evidence favor shall be any Every of, against, person. person or white who shall have Negro one-eighth part or more of blood be deemed mu shall latto, every person who shall have one half of Indian (Stats. 1850, 99, 14, blood shall be deemed an Indian.” ch. § repealed p. 230; Proc., 18, 1872.) black, “No or Code Civ. § give person, Indian, shall evidence permitted mulatto person any Court party, action to which a white Every person eighth part or of this State. who shall have one every negro mulatto; more blood, be deemed a shall blood, person who deemed half Indian shall be shall one (Stats. p. repealed Indian.” 142, 306, 455; ch. Code § Proc., 18, 1872.) Civ. § (and all others not court held Chinese this against being white precluded witnesses white) were quoted (People v. above. the basis of the statute persons on motivating the de- 399, 404.) Hall, 4 Cal. considerations cisión candidly are set forth: “The spectacle anomalous people distinct [Chinese], living recog in our community, nizing no laws of this except through State necessity, bring ing prejudices them and national feuds, they indulge in open law; violation of mendacity whose proverbial; a people race of whom has marked as in nature ferior, and who incapable are progress or intellectual development beyond a point, certain history as their shown; differing in language, opinions, color, physical conformation; between whom and placed ourselves nature has impassable difference, now presented, and for them is claimed, not away to swear citizen, the life of a but the privilege further participating with us in adminis tering the affairs of our Government.” (People Hall, supra, pp. at 404-405.) reasons, For these therefore, “all races other than Caucasian” were held to be included in a statute referring only to a “black or person, mulatto Indian.”

, California courts are not Many alone such utterances. country courts have assumed beings that human can judged by race that other races are inferior to the Respondent’s position Caucasian. prem- is based those justifies prohibition miscegenation ises. He grounds frequently similar to those set forth in the cited case of Scott (1869), amalgamation 324: State Ga. “The only unnatural, always races is not productive deplorable daily results. Our us, observation shows offspring of these unnatural generally connections are sickly effeminate, they and that are physical inferior in development strength, to the full blood of either race.”2 experts agreed progeny marriages Modern that the be- tween of different races are not par- inferior to both Nevertheless, ents.3 if even we were to assume that inter- 2 Respondent following language Jackson, refers to the in State v. Am.Rep. 499], although stating 80 Mo. 179 [50 that "we have biological found other statement to hear out claims’’ therein: "It is stated as a well authenticated fact that if the issue of a woman, black man and a white and a white man and a woman black intermarry, sufficiently justifies possibly any progeny, cannot and such a fact intermarriage those laws which forbid the whites, laying grounds blacks and out of view other sufficient for such ’’ enactments. 3 See, Oastle, Biological Sociological Consequences of Bace Cross ing, Physical Anthropology, pp. 145, 152-153; Linton, Am. J. of Sterling Anthropology, Professor Tale TJniv. and President of Anthropological Association, p. (February American 64 Am.Merc. 1947). are unable progeny, in inferior we marriage results racial marriages against on the statute policy clear to find ground. that miscegenation statutes Code, section like most

Civil mar Family §44), prohibits Laws, Vernier, American (see, certain and members of only persons” “white riages between Although 60 is more inclusive section races. other so-called “In statutes, does not include miscegenation than most Singh Bhagat (see, United or “Hindus” States dians” 616]) ; 338, 67 L.Ed. 204, 214-215 Thind, 261 U.S. although category, up separate as it set “Mexicans” a nor does populated least Mexico to be at authorities consider some and “Indian.” part by a of “white” persons who are mixture Britannica, pp. 381-382, 60 Harv.L. (See, Encyclopedia marry 1156-1158.) may persons Thus, persons” “white Rev. by respondent’s white would be other than who considered freely. authorities, may intermarry and all other “races” Legislature permits mixing of all races therefore marry single exception not persons white Negroes, mulattoes, Malays. Mongolians, might It be con or theory is based cluded therefrom section 60 Mongolian Negro progeny person a that the of a white or Malay undesirable, progeny or while inferior Nevertheless, the members of other different races are not. prevent mixing not “white” section does and “colored” marriages permits between blood. Caucasians pigmentation, Indians, Hindus, such as darker others Mexicans,- persons ancestry but between of mixed includ ancestry yet If a ing person white. partly Caucasian ancestry Mongolian as a under classified section because his predominantly Mongolian, a considerable of Cau mixture Mongolian permissible. person having A casian and blood is five-eighths Mongolian three-eighths blood and white blood marry properly person preponderantly could another Mongolian Similarly, marry a can Negro. blood. mulatto a Stark, supra, theory Under the Estate that a mulatto Negro ancestry, person having one-eighth or more of a ancestry person having seven-eighths marry could white mulattoes, Negro. four-eighths In fact two each of white Negro four-eighths blood, marry could under section progeny, them, belong much race like would as to one therefore, effect, permits to the other. section 60 intermarriage substantial amount of between of some ancestry and members of other races. Further- Caucasian more, is no ban on illicit sexual relations between Cau- there Indeed, proscribed races. it is and members casians covertly encouraged by marriage. the race restrictions sought justify

Nevertheless, respondent has the statute by contending prohibition intermarriage between specified prevents and members of the races Caucasians being contaminated Caucasian race from races whose mentally physically and members are nature inferior Caucasians. relating physical in-

Respondent submits statistics to feriority Most, all, of certain races. if not of the ailments largely he refers are attributable to environmental to which showing Moreover, must take note of the statistics factors. one higher percentage among of certain that there is a diseases among categorical The Caucasians than non-Caucasians.4 inherently physically are in- statement that non-Caucasians years In proof. recent ferior is without scientific scientists weight segregation great have attached to the fact that generally greatly in a inferior environment increases their liability any event, generalizations physical to ailments.5 4 frequently 1939 in deaths most Between and California resulted circulatory system, particularly from diseases of the heart diseases. prevalent among persons, including not most white These diseases were Chinese, slightly Mexicans, exception of who exceeded white important cancer; here, persons. white important than most cause of death was The second exception. Tuberculosis, all others without exceeded Negroes death, greater frequency among cause of occurs with Mexicans; Mexicans, among persons, including white not Malays materially higher owing Indians, Chinese and have death rates Negroes Japanese. to than Diseases of the nervous tuberculosis system among Mexicans, frequency Indians, Japanese, occur with less Malays among persons, Negroes, (The than white Chinese. California, Population Club of Commonwealth of California Research (1946) seq.) pp. 217 Service et fertility Negroes Respondent’s is contention that mulattoes (See supra) (1937) questionable. note Dr. S. J. Holmes The low is Negro's Struggle Survival, p. 176, fact is that we for states: “The adequate sufficiently large us data on a scale to enable origin fertility, if how the mixed of the mulatto affects decide Although Negro fertility generally it at all.” rates are lower affects persons, other non-whites far exceed whites than those white Negroes Further, fertility Rural-farm exceeds birth rate. rate of interpretations give various that of Rural-farm whites. Scientists light fertility, analyzing in the as well statistics on them environmental hereditary (Population California, supra, pp. seq.; factors. et 7.) Myrdal, p. 134, I see ch. 5 See, Myrdal, 140-144; Holmes, Negro's Struggle pp. I S. J. The Survival, p. 130.- among Respondent contends, however, there a racial ailment Negroes According Cyclopedia known as sickle-cell anemia. untrustworthy great in view of the variations based on race are rationalization, The among same race. there- members marriage between and non-Caucasians fore, that Caucasians socially physical disabilities of because of undesirable physical latter, to take of the disabilities of fails account among fails also take account of variations Caucasians and Legislature marriages The free prohibit non-Caucasians. socially dangerous physical are disabilities because parties §§79.01, 79.06.) (See, Civ. Code concerned. miscegenation however, certain statute, condemns races marry hypo- as unfit to on the premise with Caucasians disability, regardless qualifica- physical thetical racial premise tions of If were the individuals concerned. carried logical conclusion, pre- to its non-Caucasians who now marrying grounds cluded from physical Caucasians on would precluded marrying among also be themselves on grounds. marriages same prevent concern to the first category marriages and the indifference about the second the spuriousness intermarriage reveal of the contention that socially between Caucasians and dangerous non-Caucasians is physical grounds. Negroes, impliedly contends that Respondent also mentally are inferior specified section other races catalogues in the true United States It is Caucasians. more Caucasians than distinguished people list members disregarded, however, It cannot be that Cau of other races. great generally majority and have had a the are in casians environment, capacity and that the advantageous more any contribute to a nation’s culture race to the members of freely large participate measure how in on depends proof that one There is no scientific race in culture. that ****6 ability.* The on in data which another native superior to (1946) 2, p. 746, quoted Surgery Medicine, Vol. and Obstetrics per respondent, Negroes studies indicate that 7 to cent of “Statistical necessarily trait, though suffering from the sickle-cell show only Assuming in that the trait found sickle-cell sickle-cell anemia.” Negroes, despite races, respondent known extensive intermixture prevalence of sickle-cell anemia. trait and not the shown has premarital 79.01, requires test, blood makes Civil Code section report provision anemia. sickle-cell no for 6 negative many See, Myrdal, pp. I 147-148: “These conclusions glaring painstaking in labor scientific stand contrast decades of the most ordinary firm that American’s conviction there are funda white to the Negroes psychic and whites. reason differences between mental ordinary so that white American has is not much for this contrast made an error intelligence observation, most studies show that in judged sample, by performance average Negro if in the on the Caucasian, superiority undergone is based have considerable reevaluation social in two physical past scientists Although decades. scientists do not discount the influence of heredity ability highly tests, on the to score on mental there intelligence. is no certain correlation There between race and outstanding races, have been individuals in all and there has also been in wide variation the individuals of all races. Legislature intelligence event the pre- has not made an test a requisite marriage. respondent’s If blanket condemnation ability the mental the proscribed accepted, races were there would limit be no to discriminations based purported inferiority certain races. It would then be logical Negroes marry Mongolians Negroes, to forbid or marry Mongolians, ground inferiority, on the of mental by sterilization to decrease their numbers.

Respondent contends, however, wishing persons that marry in race contravention of barriers come from the “dregs society” progeny and that their will therefore be community. forbidding burden on the There is no law mar- riage among “dregs society,” assuming ex- pression capable law, If of definition. there were such a applied proper could not be without a determination of category, that fall within that a determination hardly that could be made on the of race basis alone. Respondent specified contends that if races even race, the statute are not nature inferior to the Caucasian justified diminishing the statute can be as a means of race preventing might tension and the birth of children who become problems. social test, average person sample, is inferior white and some average Negro specific personality studies show has certain man, differences from the white that he has made an error inferring part that observed differences were innate and a of ‘nature.’ thp gross He has not been able to discern influence environmental differences, experiences. much less the influence of more subtle life ignored, however, many fact should not be he also made errors, observational his because observations have been limited and See, also, Ralph Linton, Sterling Anthropology, biased.” Professor of University, pp. 133, 139; Joseph Lyle Yale Am.Merc. Peterson & H.

Lanier, Comparative Negroes, Studies Abilities of Whites and Monographs (1929); Klineberg, No. Mental Measurement Otto A Study Psychological Differences Between “Racial” and National Groups Europe, Psychology, XX, (1931) ; Archives of No. vol. (1931) Psychology, Study Thomas Russell Garth Mental Race A of Racial Differences; Myrdal, pp. 144-153; Klineberg, (1935) I Otto Negro Intelligence Migration; (1943) and Selective Ruth Benedict Race: Polities, pp. 98-147. Science

725 communities true that some Similarly, tension may race result in tension. races of different require of the constitutional may the enforcement result from juries solely on excluded persons must not be ment that by certain districts color, segregated law to ground of 60, 81 city. Warley, 245 U.S. In v. [38 within a Buchanan of the United 149], Supreme Court 16, 62 L.Ed. S.Ct. forbidding a “white a statute declared unconstitutional States greater number into a where the person” to move block forbidding persons” and occupied by “colored residences were greater person” into block where “colored to move by persons.” The “white occupied number of were residences segregation will “proposed was made that contention by race conflicts.” promote public peace preventing is, and opinion desirable “as this stated in its that court aim preservation public peace, as important is the deny accomplished by cannot be laws or ordinances which by the Federal Constitution.” protected created or (See, State, 296, 900, Cantwell v. 310 U.S. S.Ct. 1213, 1352].) L.Ed. 128 A.L.R. any prejudice upon community effect is un of race minority

questionably singled that detrimental both to the group out for discrimination the dominant that would and to say perpetuate that race prejudice. It is no answer to through can perpetuation tension be eradicated law prejudices give any Nor that rise the tension. can placed reliance be on the decisions of United States Supreme upholding requiring segregation Court laws of races schools, in facilities supplied local common carriers and for that court made it clear those instances equal state must persons regardless secure facilities for all right of race in impaired. (Sipuel order that no substantive be Regents, L.Ed. Board U.S. -], ; rel. U.S. Law Week Missouri ex Gaines 4090] Canada, 350-351 present case, however, there no redress the serious right Negroes, mulattoes, Mongolians,

restriction of the Malays marry; certainly the cor there is none in marry. responding restriction Caucasians to may A member of himself races find barred these from marrying person person law of his choice him irreplaceable. beings Human bereft dignity by worth and make them doctrine would interchangeable as trains.

726

Respondent relies on Pace Alabama, v. U.S. 27 L.Ed. 207], in which the United States Supreme Court held constitutional an Alabama statute im- posing punishment more severe adultery for or fornication person between a white Negro and a than for such acts between belonging individuals to the same race. The Alabama statute also referred intermarriage but the court considered dealing ease as one solely adultery and nonmarital intercourse. required by We are not the facts of this case reasoning to discuss the of Pace v. Alabama except to state adultery that and nonmarital intercourse not, are like mar- riage, a basic right, but subject are offenses degrees to various punishment. of that race discrimination rationalization diminishes the per- contacts and therefore the tensions between races would petuate deprivation racial minorities. It would justify abridgment privilege holding their office, an jury service, professions. entering the The courts made it clear privileges prerogatives that these are not the race. marriage that interracial has adverse is contended only upon parties thereto but their effects Bell, relies Buck v. Respondent progeny. 1000], proposition that the state 584, 71 L.Ed. by taking as the children protect itself as well

“may properly offspring birth of prevent who will con- steps will though legislation problem, even social stitute a serious right.” necessarily case, with a natural interfere That must authorizing sterilization of however, involved a statute imbe- following verification and the scientific observance of ciles person guarantees. In Buck Bell the procedural v. sterilized child of a feeble-minded mother and the feeble-minded was illegitimate feeble-minded the mother of child. was herself inheritability 6624.) The of mental Code, & Inst. (See, Welf. § here, not concern us for this case does defectiveness does mentally persons. Supreme defective Court not involve forbade the sterilization of criminals later United States supra, Legislature Oklahoma, where the failed Skinner v. illogical hearing up and set discrimina- provide fair categories miscegenation in the categories. The racial tory discriminatory illogical as those condemned are as law Supreme Oklahoma; and there Skinner Court hearing. corresponding lack of a fair is a socially Negroes inferior Respondent maintains Georgia recognized judicially (e.g., been and have so Wolfe 899, 901]), Co., Ga.App. S.E. Ry. & Elec. Negro a Caucasian progeny of a between inferiority but the fear of stigma of such suffer not they do, If the fault races. rejection by members both prejudices in the with the parents, lies not with prejudices perpetuate those community and the laws that certain are in races by giving legal force to the belief marriages prohibited can because miscegenous If ferior. religious mixed unions the progeny, tensions suffered ground.7 on the same prohibited could be many the United States There are now so upon already ancestry, them are di- mixed that the tensions minishing bound diminish even more time.8 and are marriages many Already progeny of the of mixed have made community. important contributions event misceganation prohibit the contention that the laws interracial progeny because its effects on the adverse belied racial intermixture that it tolerates. extreme many years progress dissipation in the For was slow insecurity minorities, there are that haunts racial for security many depends who believe that their own its belief, or fears, maintenance. Out of earnest out of irrational they in a circle that minorities are inferior in reason such health, culture, inferiority intelligence, and and that proves prejudice. the need the barriers of race arguments support

Careful examination of question legislation in that “there reveals is absent compelling justification which would be needed to sustain (Oyama California, discrimination of that nature.” v. 332 269, 272, Certainly 92 -].) U.S. 633 S.Ct. L.Ed. [68 the fact alone that discrimination been sanctioned years many supply justification. does not state (Shelley Kraemer, 836, -]; v. 334 1 92 U.S. S.Ct. [68 L.Ed. Oyama California, Com., Fish supra; Takahashi v. Game v. & -]; 334 1138, 410 92 Winters v. U.S. S.Ct. see [68 L.Ed. York, 665, L.Ed. -].) New 333 507 92 U.S. S.Ct. [68 7 (1943) Indeed, Farge, Father La S. J. John The Baee Question Negro (Permissu p. 196, Superiorum), The considers the tensions “not ’ ’ unlike. 8 (1930) Anthropometry See, M. J. Herskovits American Negro; (1931) Mixture; Myrdal, Pp. 132-133, E. B. I Beuter Baee 1360-1361.

728

III if Even state could restrict marry upon alone, basis race 60 sections and 69 of the Civil Code are nevertheless invalid vague because are too uncertain regulation. to constitute a valid precision A certain is essential in regulating a statute right. a fundamental “It duty is the lawmaking body framing express laws to plain its intent in clear language people to the end that the designed operate may whom it is be able to understand legislative (In will.” re 203 Alpine, 731, Cal. 736-737 P. 947, 58 1500]; 484.) A.L.R. 50 [265 cases collected Am.Jur. “It is a fundamental rule that no citizen deprived should be liberty his for the violation of a law which is uncertain and ambiguous.” (In Stewart, 344, re 24 Cal.2d 348 P.2d [149 689]; Peppers, In re 682, ; 189 Cal. 686 P. United [209 896] States v. Grocery Cohen 255 Co., 81, 298, 89-92 U.S. S.Ct. [41 65 516]; L.Ed. Jersey, v. New 306 453 451, Lanzetta U.S. 618, S.Ct. 888]; Connally 83 L.Ed. [59 General Construc Co., tion 269 385, 126, 322].) 70 L.Ed. U.S. requirement that a law be definite and its mean rights governed ing those whose duties ascertainable gov penal statutes, but to laws thereby applies not (Standard erning and liberties. C. & M. fundamental 51, 566, Waugh Corp., 231 N. Y. N.E. Corp. v. C. Co., Sugar v. American ; Co. A.L.R. Small 1054] Ref. 589]; see also State Harris, 158 La. So. ex rel. Dickason Examiners, Board in Hewitt v. Medical Thus, this court Am.St.Rep. 315, 7 Ann.Cas. 590, 595 P. 148 Cal. regulating declared invalid a statute 750, 3 L.R.A.N.S. 896] ground that were provisions medicine on the its practice practice a govern one’s to vague and uncertain to too 281 it was held Torio, Di F.2d profession. In re In regulating naturalization of provision a of a statute ground. Although pro the same invalid on aliens was face, the court refused question clear on its seemed vision admission to vacate an order of apply the statute to to language appears its “An act is void where citizenship because give meaning, impossible it is on face to have a its in the circumstances intelligible application any precise (In Torio, Di re operate.” intended to under it was cited.) supra at 281 and cases there all mar declares void the Civil Code Section Mongolians, members Negroes, riages persons with of white Legisla section, Malay or nralattoes. race many systems classifying persons adopted one of the ture has that have been race. Racial classifications basis of and the past vary the number of divisions as to made of each distinguishing the members regarded as features systems distinguished by The number of races division. thirty-four.” three or four to “varies from classification 25, 26.) Legisla Sciences, The Encyclopedia of (Boas, 7 Soc. system sug based on the in section ture’s classification century. (Rol early in the nineteenth gested by Blumenbach P.2d Cal.App. 267, 273 Angeles County, 129 dan v. Los classified man into five races: Caucasian 706].) Blumenbach Ethiopian (black), American Mongolian (yellow), (white), Malayan (brown). Even if that hard and (red), Indian applied persons all of whose ancestors classification be fast Legislature has divisions,8a racial belonged to-one of these persons of mixed provision applying the statute to made no ancestry. overwhelming been a The fact there has country steady people number of in this who increase growing belong race, and a number who have to more than one with the race identifying succeeded in themselves Caucasian exclusively though even are not Caucasian. Some of these illegit persons migrated state; to this some are born here miseegenous marriages imately progeny of ; others are the valid in California. valid where contracted and therefore (Pearson 120, 125.) apparent purpose Pearson, 51 Cal. mixed discourage the birth of children of an statute is to cestry however, cannot be purpose, within this state. Such marriages accomplished taking into consideration without ancestry. regulating A funda persons of mixed statute clearly if it cannot be reason mental unconstitutional ably accomplish purpose. This court therefore applied to its constitutionality ques of the statute cannot determine assumption provisions might, with suffi tion on the that its ancestry. applied of mixed definiteness, persons cient of mixed reference made the statute ancestry marriages per- between a “white prohibition is the “mulatto” is not son” and a “mulatto.” Even the term of that term leads to The lack of a definition defined. applied to be special problem of how the statute is 8a (1936) Europeans, Huxley We Julian S. and H. C. Haddon See 115-131, Survey 1-15, 82, 106, Problems, 215-236. A “Racial”

person, Negroes.9 some but all of whose ancestors are attempting ease this state to define the term “mulatto” section Civil Code leaves undecided whether a person one-eighth Negro with less than a blood is “mulatto” (Estate meaning within the of the statute. Stark, 48 Cal. App.2d 209, 214 P.2d Even uncertainty more meaning surrounds the persons,” terms “white “Mon golians,” Malay and “members of the race.”

If applied generally to be persons statute is of mixed ancestry question arises applied whether is to be on the physical appearance basis of the of the individual or on the genealogical basis of a ancestry. research as to his If the physical appearance of the individual is to be the test, statute applied would have to be subjective the basis of impressions persons., of various having Persons the same parents consequently hereditary background same differently. could be classified On the other hand, if the application of the statute to mixed ancestry is to genealogical research, be based on question immediately proportions Caucasian, arises what Mongolian, Malayan or govern applicability ancestors any statute. Is it Mongolian Malayan trace of or ancestry, or is it some un- specified proportion ancestry of such person that makes a Mongolian Malayan a meaning or within the of section 60? person Mongolian

To determine that a Malayan is a meaning within the of the statute because of trace of 9 Dictionary (3d ed.) person Black's Law defines a “A mulatto as offspring negress man, that by and of a a white or of a white woman negro. general sense, person a ... In a more a of mixed Caucasian negro blood, Negro Properly or Indian and blood. . . . a mulatto person parents wholly is white; wholly one of whose black and the other always, though perhaps generally, but the word does not it does require alike exactly blood, signification so even a mixture of nor is its Negro in all the states. ...” The same source defines a ‘negro’ man, follows: “The word means black one descended from race, commonly African and does not include a . mulatto. . . But respect, the laws of the different states are not uniform this some including description ‘negro’ one-eighth in the one who has necessarily person or more of ‘negro’ color, African blood. Term means but not every person ‘negro’.” foregoing of color is a definitions of “Negro” substantially “Mulatto” the same as the definitions Dictionary. contained Bouvier’s Law Myrdal, Dilemma, p. “Legislation See also I An American 113: respect usage, although tends to conform to social often it is not Negro grandparent person so exclusive. some states one defines a Negro legal purposes, any Negro as a in other states ancestor—no matter how far removed—is sufficient. In the Southern states definitions Negro conflicting. reconstruction, who are often Since there has tendency been a to broaden the definition. The Northeastern states generally Negro have no definition of in law.” If the classi- absurd. slight, ancestry, would however given ancestry upon a depends mixed person of fication of a ancestors, among Malayans his Mongolians or proportion invading province clearly court, without how can this proportion is? that decisive determine what Legislature, 800, 805 Roberts, 16 Cal.2d etc. Bank v. (See, Coast Pacific predomi- a court assume that Nor can this P.2d person a makes a one race ancestors of in number of nance meaning Malayan within Mongolian, Caucasian, assump- from such follow results would statute, for absurd ancestry Malay three-sixteenths person with Thus, tion. a yet be Malay and many characteristics might have so-called preponderantly in terms of his person a white considered easily in a might find himself person ancestry. a Such white under person a regarded as white if he were dilemma, for yet marry Malay, a forbidden to 60, he would be section effectively his mar- preclude might Malay characteristics his having Similarly, person a person. riage white to another legally ancestry might be classed as Mongolian three-eighths Mongolian character- though possessed he a even person white inclination to opportunity or might little He have istics. might yet Mongolian, section marry any than a one other person if were four- marriage. Moreover, forbid such four-eighths ancestry and white Malayan eighths,Mongolian or in number of ancestors predominance ancestry, a based on test applied. could not be it is 60 on which and section the Civil Code

Section upheld uncertain to be vague and therefore too based are marry. right Enforcement regulation as valid charged with its place upon the officials would statute reviewing charged with upon the courts administration determining the task of legality administration of such meaning That task could be carried out statute. only respect ancestry of mixed on the with basis of conceptions supplied by Legis- of race classification not judical certainty “If lature. no can be settled as to the meaning statute, liberty of a the courts supply are not at ’’ (In Torio, 279, 281.) re Di one. F.2d

In summary, we hold that sections 60 and 69 are vague regulations too and uncertain to be enforceable of a they equal right, protection fundamental but that violate the by impair- clause of the United laws States Constitution ing marry of individuals to on the basis of race arbitrarily unreasonably discriminating

alone and against groups. certain racial peremptory prayed.

Let the writ issue as Gibson, J., Carter, J., C. concurred.

CARTER, J., concurring. my opinion It is considered (Civ. 60, 69) that the are the Code, statutes here involved §§ product intolerance, and I am prejudice ignorance, happy join holding that this court the decision of harmony are invalid and unenforceable. This decision of Inde- contained in Declaration the declarations Rights and the pendence Bill of guaranteed of the United Fourteenth Amendment to the Constitution Nations, by the of the United States and reaffirmed Charter race, rights regardless' of beings equal that all human pursuit liberty and the creed, color and that the to or may infringed because happiness of and not be is inalienable say these stand race, of color or creed. To that statutes liberty equality embraced concept of the face of the law fundamental the ambit of the above-mentioned within mockery. concept empty, hollow make of that is to hold “We Independence declares: Declaration of The men are created That all truths to be self evident: these with certain by their Creator they are endowed equal; that liberty and the life, among these are rights; unalienable happiness; ...” pursuit of the United of to the Constitution Fifth Amendment The life, deprived person shall be that: “No provides States ’’ law. process due

liberty property without or the Constitution Amendment Fourteenth persons born or 1. All provides: “Section States United jurisdic- subject to States, and in the United naturalized the State and of States thereof, of the United are citizens tion enforce law make or shall No State reside. wherein immunities of citizens or abridge privileges which shall any person deprive any State States; nor shall the United law; nor process due property, without liberty, or life, equal protec- jurisdiction within -its any person deny to laws.” tion of following Nations contains the United The Charter op Peoples Nations the United declaration: “We human in fundamental faith . reaffirm . : . determined in the person, the human worth of dignity rights, equal rights of men. and women large and of nations promote small ... progress social and better standards in larger life freedom, . . . And for these ends ... practice tolerance ...” (Preamble.) “. . in promoting . encouraging respect for human and for funda- mental freedoms for all without race, sex, distinction as to language, religion (Ch. ...” I, I, 3.) art. § In the face of these pronouncements authoritative matter equality of race should a settled is, issue. at least, a settled issue so far as the fundamental law is con- cerned. And only question before us is whether the Legislature may enact a valid statute in direct conflict with this fundamental law. It seems clear.to me that it is not possible for the Legislature, in the face of our fundamental law, to enact a valid proscribes statute which conduct on a purely racial basis. Such are the statutes here involved. The wisdom of broad, concept liberty liberal equality declared in our apparent fundamental law should be every unprejudiced mind. Apostle Paul declared that: . . . “God hath made of one blood all nations of men for to dwell on all the face of earth, and hath determined the appointed, times before and the bounds of their (The habitation.” Acts of the Apostles, 17, 26.) ch.

Cedric Dover writes his “Perhaps book “Half-Caste”: our Neanderthal ancestors arose from ape- mixture between men Age. Perhaps of the Ice prototypes our Neolithic emerged from Aurignacian relations between the invaders Europe and the local Neanderthals. We shall be content knowledge miscegenation with the has influenced human times, evolution from the earliest there has not been a pure species years.” race of our for at least ten thousand

In a to in letter Chastellux 1785 Thomas Jefferson wrote: supposed man, present “I have in state, might the black his body equal in man; not be and mind to white but it would that, equally be hazardous to affirm cultivated for a few ’’ generations, he would Notwithstanding not become so. this statement, Jefferson, the author of who was the Declaration Independence, Negro of made it clear that is entitled to enjoy equally rights life, with others the “unalienable of ’’ liberty pursuit happiness. of and the Independence part is a of the law of

The Declaration Large part It be found as of the Statutes at our land. is to given It page legis on 1. effect as a volume has been .1 (Inglis Snug Trustees the Sailor's enactment lative (3 Pet.) 617], L.Ed. and Harbor, other cases Fidelity 7, 8; Casualty U.S.C.A., Constitution, pp. cited in & Savings Co., App. Co. New York Bank v. Union Ohio “All men are 221]). N.E. It declares that: created by their equal; that are endowed Creator certain liberty among life, are rights; unalienable that these pursuit happiness; question . . one will far that, .’’No so petitioners concerned, pursuit as case this involves universally in happiness approved its clearest and most form. as knowledge a matter of law well as historical that not, equal law, (Dred all men were

after the Revolution (U.S.) 691]). 19 How. But Sanford, Scott v. fought, bled, it is men well to remember that died for proposition. truth case, supra, proposition Dred the truth In the Scott opinion by questioned was and denied an Chief Justice again knowledge Taney. It is a matter historical that this helped brought the fire which to kindle the Civil decision fought, In this war men bled died for their belief War. equality of man. the essential Lincoln, never-to-be-forgotten Gettysburg in his Abraham us, speaking Address, told because he was to future past, years ago our well that “Pour score seven as of brought continent, nation, a new forth fathers Liberty, proposition to that and dedicated conceived “ equal.” [A]ny He asked whether all men are created dedicated, long can endure.” and so nation, so conceived conclusively supposed definitely and War was Civil state, question. being so, This should a or even answer that destroy legislate great ideal when states, that a number of preserve it? An ideal for which fought been wars be and the lives of families should gave men their lives yet carefully guarded. And all men heritage precious equal treatment! being given are not now marry person one’s choice has not freedom to evidently today. existed, not exist here But always does people? of a fundamental free one of the is not that being limited “Liberty consists said that: Blackstone expression is the abstract Supreme Law which right, then marry is a fundamental right.” right If the infringement be conceded must means of a infringement racial restriction is an unlawful liberty. only of one’s It perhaps a few immaterial that marry persons would wish to not of their own race or color. It right is material the who do the few so desire only to make that ignorance, prejudice choice. recognize intolerance which denies it. Since this state will marriage performed as valid mem- another state between bers these two races it the cannot be follows that vitally public health, considered welfare detrimental to the and morals. I, California, Constitution of sec- the article State life, provides person deprived

tion that no shall be liberty property process process without due law. Due right procedural of law consists not of the individual’s process, his process—that due but to substantive due state, through legislation, deprive the him shall not of one of his “liberties.” Constitution, States,

Our like Constitution of the United upon powers Upon is a this restriction state. duty guarding court devolves the and the Constitution protects, Supreme as Court of United duty guarding States devolves the Constitution of the United States.

The student of constitutional law knows that the Civil War accomplish amendments to the Constitution did not equality purpose, real, intended which over-all was create such, Independence as contemplated, the Declaration of prevented being such cases as the Dred Scott which case Supreme (Waite, Negro Court, realized. in the 30 Minn. 219.) L.Rev. years following adoption Thirteenth,

Fourteenth and Amendments, Fifteenth many courts still did equality not think that there was real among despite men the fact language quite the amendments is clear. Another round of the vicious circle was begun, this time limiting possible as language far of the amendments. Many might support eases be cited to view, but liberal persons—the hardest blow to minded biggest step days slavery—was backwards into Plessy decision in Ferguson, That 256]. case involved a Louisiana statute provided that rail- “equal provide separate” must roads accommodations passengers, white and colored that, under penalty, no .permitted group member of either should be use provided Supreme accommodations for the other. The Court upheld statute, had and laid down the rule that the state the power to make faith regulations good of this kind “in for the promotion public good.” of also said the the The court that question regula- came down the of the “reasonableness By (Plessy Ferguson, supra, p. 537.) using tion.” v. that however, Supreme open for language, the Court left the door a future, enlightened generation. For, more if the reason- may regulation only test, ableness the will of is the it point of happen regulation that a from the was reasonable Legislature enacting passing it first view of the and the court all light developments, on it. And in of yet, future may regulation the reasonableness have been lost and the hang- may oppression—a a mere have reduced itself to tool yore. quaint superstitious days There are over from enough periodically to fill a column statutes of this kind magazine. Most thus rendered obsolete are Collier’s statutes especially and most them are not enforced. vicious, not It safe that of them struck down is to assume most would be today constitutionality challenged, if what were because absurdity. may once appeared reasonable become is, course, It state in the exercise conceded that the may health police power legislate protection for the may infringe people doing and welfare so rights some individuals. But extent may legislate to of a that state the detriment conceded themselves, when minority protect unable who are class—a may purpose behind it. Nor legislation has no valid guise prejudice and police power to cloak be used as intolerance are the cancers Prejudice and intolerance. civilization. never now before us my position

It is the statutes they enacted, violated the When first were constitutional. Inde- as found in Declaration supreme law of the land my position the Fourteenth pendence. is further invali- States Constitution United Amendment powerful In a dissent involved. here dated the statutes said, page Harlan at 559: Ferguson, supra, Plessy Justice nor knows color-blind, and neither Constitution “Our rights, of civil respect among citizens. tolerates classes regards . law the law. . . equal before all citizens surroundings man or of of his no account man, as and takes supreme guaranteed by as civil color his his when day law judgment land are involved . . . this time, quite will, prove pernicious rendered as decision made This this tribunal the Dred case.” Scott language judg- needs no elaboration. at which The time this pernicious ment has become has arrived. if not, I I concede,

Even do that the statutes here reasonable, longer involved were at time are no today. longer reasonable and therefore valid no rule constitutionality once of a statute is not determined change all A and for it. in con upholding decision ditions invalidate a statute which was reasonable (Nashville, Ry. Walters, valid when enacted St. L. Co. C. & 949], 150). 79 L.Ed. 16 C.J.S. In this case, there are no decisions of either court or the Supreme Court of the uphold United States which validity of forbidding a statute or invalidating miseegenous marriages. pointed As has been out, even if prece- there were dent, it necessarily would not in binding The this case. cases from jurisdictions other are, course, binding of not here. Under the test laid down Supreme the United States Court in Plessy v. Ferguson, supra, the the reasonableness of regulation is therefore the decisive factor. And there are decisions rendered in definitely point this state which the way as is to what to be considered “reasonable” in accord public policy this state. validity upheld miseegenous

This court has mar riages, so-called, when the was entered in a into jurisdiction prohibition where (Pearson no existed Pear son, 120, 125). 51 Cal. Under the well-settled rules of the law of Laws, Conflict of validity this court could have denied to such marriages, provided they were “odious” to its own policy. internal so, It did not do it has indicated holdings other problem which miscegenation was collaterally involved that it not does consider the internal policy of state validity this one which would lead it to refuse (Rest. to marriages Laws, (c)). Conflicts 132§ Some type the statutes of here under attack upheld reasonably been designed prevent rioting. as to race grants recognition The fact this foreign court misce- genous enough marriages, contracted, valid where to rebut argument. or in Riots would either follow both eases by asking: up problem none. One author sums “Does miscegenation applies mean that the statute not inadequate those knowledge who either have an of the law cannot afford the train fare a state where and/or attempted marriage (Tragen, 32 would be valid?” Cal.L 269, 277.) .Rev.

So policy concerned, far no of this court is there is basis upholding it the statutes. But it is said that is not policy Legislature the court but that of the which again, strong should control. And there indica- there are legislative way. tions of point trends and intentions employment public concerned, So far as under contracts the laws of this on state forbid discrimination based color (Lab. Code, 1735). far as other than the So civil § marry they guaranteed by concerned, are Civil are Code, forbidding miseegenous 52. The mar- section statutes riages distinguished here under attack are further jurisdictions entirely statutes other in that are carry penalties declaratory, all the others with them while This, too, for violation. would com- indicate attitude part parative Legislature, indifference and the on any clearly policy. expressed public sentiment or absence legislation sought attack also to be under here duly legislative ground sustained that a enactment presumptively made and based on “some evidence” is valid. general may But does to that effect be conceded. rule involving apply this kind. discrim- case of cases Supreme the rule laid down Court ination, is that States, Korematsu the United v. United States 199], 89 L.Ed. where 193, 194, through Black “. . . all speaking Mr. said: court Justice single rights of a legal curtail the civil restrictions which subject immediately suspect . courts must group . . racial necessity scrutiny. Pressing rigid public them to the most restrictions; of such justify existence sometimes suspicion which attaches never can.” That antagonism racial to overcome the involving discrimination is sufficient to cases constitutionality normally pres- validity and presumption as unconstitutional. is attacked when a statute ent upheld sought for “socio- to be Finally, the statute is presented sustain the evidence logical” The reasons. up it as unreasonable falls tending to show statute effect of concerned with the social groups. One is into two That close to them. and those marriages parties on the such parties perhaps to the may result well ostracism social something But is may conceded. be offspring, wMch powerless the state is to control and cannot prevent by legislation. It therefore no furnishes basis for legislation, either. something resting is parties with the themselves, for them to decide. If choose face this possible prejudice and pursuit happi- think that their own by ness is better entering subserved into this with by all its spending risks than the rest of their lives without each company other’s comfort, the state should not and stop cannot them. aspect

The other of the evidence adduced is the medico- eugenic A great one. deal has been written and said about desirability undesirability or of racial mixtures. The hopeless writers seem to inbe conflict that their lack questioned. of bias well be quote Suffice it to the follow- ing petitioner’s from brief: 1‘ blood-mixing however, with lowering of the racial level it, caused is the dying-off sole cause of the of old cultures; people for perish by do not wars, lost but the loss of that force of resistance which only is contained pure in the blood. ’’ ‘All that is not race in this world is trash. any crossing,

“The result of in brief, always is the fol- lowing: (a) lowering of the higher standard of the race, (b) physical and regression, and, mental it, begin- ning slowly steadily progressive lingering illness.”

“Every race-crossing necessarily leads sooner later to product. decline of the mixed danger for the mixed product only is abolished in the moment of the bastardiza- racially higher, pure tion of the last element.” “. . . is one most sacred human right, and [T]here at time the same most sacred obligation, namely, preserved to see to it that the blood is pure, so that preservation its of the best human material possibility given development for more noble beings.” of these human quotation

This Kampf” Hitler’s “Mein pub- lished translation in bring New York 1940. To into writings issue the correctness of madman, of a a rabble- rouser, mass-murderer, would to his clothe utterances respectability with an undeserved aura of and authoritative- forget ness. Let us that this was plunged the man who which, the world into a war time, the third Americans fought, bled, and died for proposition the truth of the equal. all men are created may judicial

We the it notice of fact—since is take political steady and inroads have been historical fact—that myth outgrowths. made superiority on the of racial and its The rest of never understood and never world the why premise will nation, built on understand and how a the equal, that all men times the flower are created can three send premise and still its manhood war for the truth of this carry fail to it within its own out borders. opinion:

In Nottingham in course of an Lord said the may “Pray here, they let us so Cases stand resolve the when are debated abroad. Shall Reason of Mankind any part in that be here that is not Reason Reason (Duke Case, 1, 33, World besides?" Ch.Cas. of Norfolk's 22 Eng.Repr. 931, 935.) very my violate opinion, statutes here involved the the premise country its Constitution were which built, very in the Declaration of Inde- ideas embodied Revolutionary War, very pendence, the issue over which fought, War War, the Second World were the Civil in interpreted must be spirit in which Constitution appear interpretations will as “Reason order that any part of the World besides."

EDMONDS, I agreewith the conclusion J. subject regulation “something is civil contract more than a ’’ state; right it of free men. More- is fundamental over, principles it of Chris- grounded is in the fundamental tianity. therefore, protected marry, my I freedom, guarantee religious place constitutional ground than judgment upon concurrence a broader discriminatory that the and irrational. challenged statutes 900, 84 Connecticut, 310 U.S. In Cantwell v. States (1940), A.L.R. United 1213, 128 L.Ed. 1352] through that, expressly held Court, for the first time Supreme Amendment, a state of the Fourteenth process clause the due guar- specific if violates the invalid statute be declared First Amendment. religious as stated antee of freedom forcefully were stated consequences of that decision Educa- Virginia Board State Mr. Justice Jackson West 624, Barnette, tion 319 U.S. weighing arguments “In as follows: 674], 147 A.L.R. distinguish the due between parties important it is as an instrument Amendment process clause of the Fourteenth transmitting Amendment principles of the First sake. The test applied it is for its own those cases Amendment, Fourteenth which collides with the legislation First, principles it also collides with the because test the Fourteenth definite than the when much more clause vagueness process the due Much involved. prohibitions of the First become disappears specific when the regulate, example, right of a State for its standard. The to utility may include, process far the due public a well so as impose restrictions which concerned, power test is to all of the But legislature may adopting. ‘rational basis’ speech assembly, worship press, freedom of and of and of may They infringed grounds. not be are sus- on such slender ceptible prevent grave of restriction and immediate danger lawfully protect.” interests which the State classification, therefore, is not the test to be

Reasonable one of funda which interferes with a statute applied to protected by the First Amendment. liberties which mental any ‘‘clear present there is question whether The legislation (Craig Harney, v. 331 justifying danger” 1249, 1546]; Pennekamp 91 v. 367, L.Ed. 372 S.Ct. U.S. [67 1029, ; 90 331, 333 L.Ed. Florida, 328 S.Ct. U.S. 1295] [66 Connecticut, 311; Lowry, supra, p. v. at Herndon v. Cantwell 242, 732, 1066]; L.Ed. 301 256 S.Ct. 81 Schenck U.S. [57 470]), States, 47, 247, 52 63 L.Ed. United 249 U.S. S.Ct. upon him who upholding and the burden of the enactment is infringe that the which are do not asserts acts denounced Columbia, 138 (Busey freedom of the individual. v. District of 595.) F.2d present case, respondent

In the does not claim present danger justifying there is clear and the restric- imposed by tions 60 and 69 of the Civil In sections Code. states, including York, Pennsylvania, where New Illinois and per Negroes reside, about 10 cent of the of the United States California, there are no such population limitations. The large extent, up to a people is made who have come to from other sections of if country, there are undesir- consequences challenged marriages, able of interracial legislation meeting is an ineffective the problem. means of polygamy prohibiting state upholding, decisions statutes Reynolds In entirely category. different come within an marriage said 244], was States, United U.S. obligation,” very nature a be, ‘‘from sacred its upon ground polygamy conviction was sustained upon government of the principles “the which the violates ’’ greater extent, Later, rests. the court to a or less people, “contrary polygamy being practice characterized the Christianity spirit and of the civilization Christianity produced (Church world” the Western States, L. D. United 136 U.S. Jesus Christ S. v. 478]; Beason, 34 L.Ed. see Davis v. eases 637]). effect, therefore, 33 L.Ed. these legislation principle rest that the which the conduct designed prevent present clear and was constituted a reason, danger being and, for to the well of the nation guarantees. the statute did not violate constitutional SHENK, J. I dissent. regulate power of a state to and control the basic social challenged here

relationship of of its domiciliaries is nought by majority arrived at order of this court set at not a concurrence of reasons but the end result supported by divergent concepts supported four votes authority contrary and in fact to the decisions this state and elsewhere. in effect in this

It will be shown that such laws have been country independence our national since before legislative They first never been state since our session. by although land any declared unconstitutional court in the they frequently have been under attack. It difficult to see why laws, constitutionally valid when enacted and nearly years enforceable in and else- this state for period time, are unconsti- longer where for a much now change in tutional under the same Constitution and with no they have It will be shown that the factual situation. also they may legislative purpose though not conform valid even legis- sociogenetic people. When that to the views of some appears entirely beyond judicial power, purpose lative it is properly exercised, nullify them. proceeding, therefore, important

This state involves most recognized late as long function since such. Indeed as Supreme 7, 1948, recognized June Court has been regulation incidents of the of the United States “that the states of the marital relation involves the exercise powers Sherrer, importance.” (Sherrer the most vital Because of -].) 92 L.Ed. far-reaching connection effect of an order of this court in worthy subject is relationship the with this basic social support of our statutes. extended discussion somewhat man- petition for the writ of According the verified marriage license, Andrea aof compel the issuance damus Sylvester Davis, Jr'., is a S. person and a white D. Perez is issue a county rests his refusal to clerk Respondent Negro. ground that he ex- them on the license to certificate doing by provisions of section from so pressly prohibited ground that their upon the further Code, and Civil 69 of the illegal and void. marriage in this state would purported 60.) Code, (Civ. § following proviso: Code contains the 69 of the Civil Section authorizing may be issued . license “. . no Mongolian Negro, mulatto, or member with a person a white 60 of Malay complementary And section race.” marriages “All of white code reads: same Malay race, or mulattoes Mongolians, members of the negroes, illegal and void.” are statutory quoted the above contend that first Petitioners religious guaranteed freedom them of the deprive

provisions Amendments of the federal Fourteenth First and by the I, 4, of the Constitution of section and article Constitution members and communi- allege that are They this state. Church; dogma, that it is the Catholic Roman cants of person teaching church white belief Negro race, eligible, if otherwise person of and a race matrimony conjointly the sacrament of receive entitled respondent refusal of to issue intermarry; that the and to fully in participate to them the license denies religion they believe, in which life of the sacramental religion, and vio- them of the free exercise prohibits enjoyment of their guaranty of the free exercise lates the worship. alleged further religious profession arbitrary, capricious Civil Code is and with- 69 of the section competency within the purpose relation to out reasonable the state to effect. contends that the classifica- Respondent on the other hand 60 and 69 of the Civil Code do not contained in sections tions religious worship; transgress petitioners’ freedom of designed promote reasonably classifications are members of the general and the interests of individual welfare regulation proper is therefore a mentioned, and that the races police power of the state. exercise of alleged petitioners’ be noted that At the outset religion in of their the broad marry part is not duty enjoined by church, penalty or that sense that it is (cf. Reynolds may manner ensue v. some punishment 244]); 145, 161 but rather States, 98 U.S. United dogma, marriage under the permissive that their beliefs they membership claim teaching church to which of the matrimony will be administered to them that the sacrament of church if and when a license issues. priest Farge, Father La executive editor of this connection John “America,” weekly, national Catholic a book entitled Question Negro” (Permissu Superi “The Race orum), (1943), page at 196: “The Catholic Church states impediment, upon impose impediment, diriment does intermarriage, great care to spite racial of the Church’s purity integrity preserve its utmost bond. intermarriages pro- are hand, where such

“On the other Union, in several states as are law, hibited laws, and to respect these her bids ministers the Church entering power to dissuade in their do all that is ’’ into such unions. attitude that the is mentioned to show foregoing bearing on the asserted particular has no church respect for local laws attitude is one Its petitioners. against in- clergy to advise their to its and an admonition fringement. pe presented in connection

Other considerations liberty being in religious contentions that titioners’ Con to the United States fringed. The First Amendment respecting law Congress make no declares shall stitution prohibit free exercise religion or an establishment Fourteenth of law clause of the process The due thereof. liberty concept fundamental embraces this Amendment renders the states Amendment and expressed in the First religious transgress However, this incompetent to it. likewise concepts,—freedom to believe and liberty two “embraces but, nature of first is absolute act. The freedom to Connecticut, (Cantwell be.” things, cannot second 1213, 128 A.L.R. 84 L.Ed. U.S. 296, Pennsylvania, ; Murdock v. 1352] City Gospel Army 81]; A.L.R. 870, 891, 87 L.Ed. long It has Angeles, P.2d Los 27 Cal.2d

745 conduct, consisting held that and practices acts, been of re subject regulation safety mains general for the and health, example, legislative For welfare. determination monogamy of is the “law social life” been held to prevail has the practice polygamy bigamy duty required, over of and as a encouraged by religion. (Reynolds or suffered v. United States, supra, 145; Beason, 98 133 333 U.S. Davis v. U.S. 299, ; S.Ct. 33 L.Ed. States, Cleveland v. United 329 [10 637] 14 13, U.S. 12].) reasoning The behind this construction the Constitution is obvious. The proper determination of standards of be- havior must be Congress left to the legislatures or to the state order being society that the may well as a whole be safe- guarded promoted. or The protection of the individual’s religious exercise of worship afforded our state Constitu- tion, article I, 4, corresponds section with furnished guaranty the federal as interpreted by the United States Supreme Court. Our provides Constitution expressly the free religion guaranteed exercise of “shall not be so con- justify strued as to . . . practices with peace inconsistent safety this State.” Moreover, right of the the' state to exercise extensive control always marriage recognized. over the contract has been The matrimony society, is the institution of foundation and the community large at has an interest its maintenance of integrity (Sharon Sharon, purity. Cal. 1 P. 909.) 345]; Supreme 16 Cal.Jur. Court the United “Marriage, has creating important States stated: as the most life, having relation more to with do the morals and than people institution, always civilization of a other has subject legislature.” (Maynard been to the control Hill, 125 U.S. 31 L.Ed. And: very “Marriage, while from its obligation, nature a sacred nevertheless, in civilized nations, most civil contract, usually regulated by may Upon society law. be said to be built, spring and out of fruits its social relations and social obligations duties, necessarily government which required (Reynolds States, supra, to deal.” v. United 145, 165.) language In the Supreme Court ‘‘ regulate right marriage, age Missouri: The at which may persons relation, enter into that manner in may celebrated, persons the rites be and between whom it may contracted, by every be been assumed and exercised (State v. Jackson, Mo.

civilized Christian nation.” “There Am.Rep. 499].) Further: can no regulat power every country doubt as to the to make laws ing subjects; may of its own to declare who legal marry, marry, how and what shall be the con sequences marrying. regulate the insti marriage; classify tution of who parties may lawfully marry; by divorce; and to dissolve relation to impose such laws restraints relation as the of God, morality propriety, and of and social order de laws governments mand, in been exercised all civilized all ages Commonwealth, (Kinney world.” v. 30 Gratt. The (Va.) 858, Am.Rep. 690].) 862 [32 been that if the law under apparent is what has said S health, safety, relationship to the attack bears a substantial general people welfare of the phase morals or some other incidentally in state, not invalid of this it would because religious particular and of a practice conflict with the conduct law, Similarly if for the if there is a rational basis group. given alike, it within a class are treated reasonable, is and all process equal protection or there no due is violation to the United States clauses the Fourteenth Amendment Canada, (See 305 ex v. Missouri rel. Gaines Constitution) 232, ; Bell, U.S. 83 Buck v. 274 U.S. 337 L.Ed. [59 S.Ct. 208] York, 264 584, 1000]; 200 New S.Ct. 71 L.Ed. Radice v. [47 Pennsyl 325, 690]; 292 68 U.S. S.Ct. Patsone 539]; vania, 281, 138 58 L.Ed. Noble State U.S. Bank 55 L.Ed. Haskell, marriage not a recent miscegenetie prohibition unique by any a law means nor is such state innovation history miscegenetie marriage A short among the states. a better and will contribute to elsewhere this state laws in declaring A mar- at hand. law problem understanding of the illegal Negroes and and to be persons riages white between Legislature. (Stats. first session our at the enacted void was declaring 60 of 424.) the Civil Code Section p. eh. advent of our existed since the marriages invalid has certain only intermarriage time it extended 1872, at which codes Negroes succeeded mulattoes. persons white between marriages found the above- against prohibition in 1905 1850. 60 was amended Section statutes mentioned Mongolians persons marriages white between to include here at- provisions of the law 554). (Stats. 1905, p. nearly one hundred unchallenged for tacked have remained marriage years unchanged so far as the been Negroes concerned. To indicate that sub whites ject merely legislative matter of ancient consideration Appeal noted 1933 the District Court of should be prohibit and 69 decided that did not sections Filipino—a in this member state of white woman and Malay (Roldan Angeles County, Cal.App. race v. Los January 27, 706]). P.2d That ease was decided on delay 1933. Legislature Without sections amended both prohibition marriages extend the also as between white persons Malay amendatory and members of the race. The passed Legislature measures both houses were signed by governor April year 20th (Stats. of the same 1933, p. 561) rendering nugatory thus the decision in the Roldan legisla case—which purpose was the obvious tion. As present legis above indicated the concern with the lation is marriages as it affects between white Negroes. Twenty-nine states addition to California have similar (Rhodes, Marriage” (1945); laws. “Annullment of Charles Legal Manguin, Jr., Negro” (1940).) S. “The Status of the regarded of matter Six these states have to be of such importance constitutional pro enactments legislatures any legalizing hibited their from passing law mar riage persons Negroes between white or and mulattoes. Sev recognize marriages eral states refuse to such if per even (see Manguin, formed where valid S. Jr., Legal Charles “The Negro” (1940); Status of the In Estate, re Takahashi's 113 Mont. 490 if 217]), particularly P.2d an attempt has [129 been made of (Eggers residents state evade law v. Olson, 483]; Kennedy, Okla. 297 P. State 76 N.C. Am.Rep. 683]). infrequency is such unions perhaps why the chief prohibitive reason laws are not found in remaining (Reuter, (1931), states. “Race Mixture” p. 39; Rhodes, “Annullment Marriage” pp. 101, (1945), 102.) The ban on marriages country mixed in is traceable early period. example, Maryland colonial For for- practice bade of Negroes unions between or Indians persons early and white forbidding as as 1663. Laws marriages Negroes between passed in whites were Massa- 1705, chusetts in in 1726, in 1721, Virginia Delaware in in 1724, it was in in North in 1741. decreed Carolina Negro-white marriages place to take France that no were remaining similar Louisiana. Most of the states enacted legislation period in the the formation the United between States and the Civil War.

Eeseareh has not single disclosed a misce- case where a genetic marriage law has been declared invalid. As stated Monks, Cal.App.2d Estate : 603, 612 P.2d 167] “Many alliances, states have prohibiting statutes we presented have had no constitu- instance of successful upon tional attacks them of them.” Not uniformly state courts but the federal courts as well have validity sustained the of such laws. of the most recent One upon subject decisions is that of Cir- the United States Appeals cuit Court of for the 10th the case Circuit States, 123, Stevens v. United 146 F.2d decided Decem- ber 1944. court there “Section said: [Title marriages 1941], making Oklahoma St. between unlawful persons of African descent and of other races or challenged ground descents is on the that it violates the Four- Marriage teenth Amendment. It is consentient covenant. by agreement is a contract in the is into sense it entered parties. But is more than a civil between it contract them, pleasure respect effects, subject will having It continuance, or dissolution. domestic relation people. to do and civilization of a It is morals every organized society. well essential institution in public welfare, and its affects a vital manner control state. regulation a matter domestic concern within each per- age A at which power prescribe law state marriage, procedure sons essential enter into obligations which marriage, a valid the duties and constitute property of both creates, and its effect 723, 31 L.Ed. Maynard Hill, parties. range permissible adoption And within 654]. society promotive of the welfare policies deemed thereof, empowered members a state well individual as the marriages persons of African descent and to forbid between a statute does or descents. Such persons of other races ” Amendment. the Fourteenth contravene Alabama, In Pace had it a Supreme Court before

207], States the United declaring any that “if white Alabama the State of statute of adultery in intermarry live or any negro or . . . person and conviction, must, on of them other, each with each fornication hard labor or sentenced penitentiary in the imprisoned be seven nor more than two county not less than for for the been convicted had Negro and white woman years.” A man of error Upon writ fornication. Alabama of in courts of contended Supreme was Court States to the United law equal protection of in conflict with the was the statute greater because Constitution States clause of the United relating to by law another provided than punishment was race. The the same by peoples of offense committed the same statute upholding in the United States Supreme Court “The stated: conviction affirming judgment of assumption in his counsel argument of consists defect in the of Alabama the laws is made discrimination plain- offense for which provided for the punishment person committed tiff in indicted when error was person. The by a white when African race and committed entirely consistent. code cited are two sections com- for an offense generally, punishment prescribes, one pre- other sexes; the different mitted between com- can punishment scribes a for an offense . . What- races. . mitted where the of different two sexes are prescribed punishment ever discrimination in the is made designated against the offense the two sections is directed or race. color against person any particular and not or whether white punishment offending person, of each ’’ black, is the same. Tutty, 50], 41 F. 753 L.R.A. State where a statute deprivation was held not under the federal Constitution, it was said: “The court will not discuss argument of counsel the inter- defendants’ to the effect that marriages of whites and blacks do not constitute an evil injury against protect This which the state should itself. subject of question been, seen, is a which has as we have repeated judicial deliverances; properly, it more duty. opinion court, range legislative of this within the enough, purpose duty, for the court It is for the of its policy legitimate ascertain that and settled the state marriages void; Georgia has declared such unlawful country, people, while, the home life of morality, decency are the bases of that vast social and their liberty, law, obedience to which excites structure countrymen pride our and the admiration patriotic world, and while these attributes citizenship of our should be protected cherished and by authority, all in and the defy creatures who them should by all, be condemned the courts, judicial in their functions, rarely concerned with policy of the laws which protect are made to the com- munity. policy upon the state subject this been declared, by as we have seen, supreme its by court as well as its statutes, and it enough say to that this court is unable to anything discover policy in that with which the federal right courts have the power or the to interfere.” In Scott v. State Georgia, Supreme 321, the Ga. Court Georgia provision said of a pro- of the state Constitution hibiting marriages Negroes, between whites and and declar- ing all such marriages policy void: “With the of this law we nothing duty to do. It is our to declare what is, law not to make myself, however, law. For I do not hesitate say to it was dictated wise statesmanship, and has a broad and solid enlightened foundation in policy, sustained sound reason and common amalgamation sense. The of the races is not unnatural, always productive but deplorable power results. . . The Legislature . of the over subject matter when adopted, not, was I Code will suppose, questioned. Legislature certainly had as right much regulate marriage by prohibiting relation persons it between prohibit different races as had to persons between degrees, within the Levitical or between necessary proper idiots. Both are regulations. And ” regulation equally now under consideration is so. Jackson, State supra (80 175), Supreme Mo. judgment sustaining Court of Missouri reversed a a demurrer charging an indictment a white woman with violation of a making marriages Negroes statute between white felony. might The court with said the law “interfere negroes marry whites, the tastes of who want to or whites intermarry negroes, who wish to State has the right regulate marriage respect same it has to intermarriage forbid the of cousins and other relations. blood preserve purity If the State desires to African by prohibiting intermarriage blood between whites and blacks, power prevent legis- know of earth we no purely lation. is a matter of domestic concern. The 14th amendment to the Constitution United States . . has . scope as seems to have been accorded it no such circuit All of one’s as a citizen of the court. . . United States . by the United guaranteed Constitution will be found instrument confers any provision If of that States. willing to wed marry any one who citizen If one to it. such be not been called him, our attention has citizenship all our American rights attached to persons within certain forbidding intermarriage between acts . condition consanguinity are void . . degrees of [T]he toler- physical, which would community, moral, mental and generations, intermarriage for several ate indiscriminate regulate mar- which of laws would demonstrate wisdom nearly intermarriage those related of riage and forbid ’’ in blood. supra Eggers Olson, Oklahoma, in v. Supreme Court of The inhibition, “The 483, 486]), said: (104 297 P. Okla. [231 blood, in and the reason marriage, like the incestuous quoted R.C.L., 18 court stronger still.” The for it is “ 1 society p. 409, part, in as follows: Civilized section marriage being the preservation, and, power of self has the in the states society, of such most of foundation enacted laws of note have negro an element forms and intermarriage the white black races inhibiting between intermarriage by forbidding . the white and black . . Statutes statesmanship, dictated wise races without doubt were enlightened policy, in foundation and a broad and solid have reason and common sense. The amal sustained sound always unnatural, but is gamation of the races is not purity public The productive deplorable results. development races, both morals, physical and the moral civilization, under which highest advancement of and accomplish destiny, work out the two races must distinctly they kept require separate, should be all pro unnatural and alliances so should that connections be ” subject to no evasion.’ by positive law hibited neighboring Oregon miscegenation law of our state Supreme (Ore. 2163) held valid Court of that L., was § Estate, 101 393 P. Paquet's in In Ore. so state re [200 911]. 8 attention to section 381 holding the court directed R.C.L. purely statutory offense, “Miscegenation is a where it is said: intermarriage person of consisting in of a white race in person. Most states which the negro with a or colored appreciable element people form negro or colored inhibiting intermarrying between the these laws enacted thereby races, offense created is and the white and black felony. There can doubt as grade of a be no usually 752 power

to the every country regulating to make laws may marry, its own who subjects; to declare how they may marry, legal consequences and what shall be of their accordingly, although miscegenation marrying; ground statutes persistently have been attacked on the they are Constitution, States violative United universally upheld proper have been as a exercise of the power (See citizens.” each state to control its own also 36 Am.Jur., Miscegenation, 3.)§ foregoing representative views are tenor general judicial opinion which expressed has been elsewhere. amplification Without further reference made (State cases in Arizona v. Pass (1942), 59 16 P.2d Ariz. [121 882]; Kirby Kirby v. (1922), 405]), 24 in Ariz. 9 P. [206 City Colorado (Jackson County (1942), v. Denver 109 Colo. 196 240]), (In P.2d in re Taka Montana [124 Estate, hashi's supra, (1942), 113 Mont. 490 P.2d 217] [129 —Japanese-White), in (Green (1877), Alabama v. State Ala. 190 Am.Rep. 739]), Virginia (Kinney in v. The [29 Commonwealth, supra Am.Rep. (1878), 30 Gratt. 690]), (State Indiana 36 Ind. (1871), Gibson Am.Rep. 42]), (1895), (Dodson Arkansas v. State 977]), (1877), Ark. (Frasher S.W. v. State Texas 3 Tex.App. (Lonas Am.Rep. 131]), Tennessee Pennsylvania (1871), State (3 Heisk.) 287), Tenn. (Philadelphia 2Miles, Am.Law & West R. R. Chester Co. Rev. 358).

The foregoing authorities form an judi- unbroken line of cial support, both federal, and validity state for the of our own legislation, and there contrary. is none to the Those appear authorities passed upon to have all attacks on such legislation on grounds, constitutional notwithstanding unanimity it by is majority declared some of the that there is a sort of racial solely discrimination which formed the basis for by the enactments majority and another of the guarantee that the constitutional religion of freedom of been infringed. However, it is the law if that there is some background factual legislation, for the that circumstance appropriate forms an enactments, reason for and it is the proper then to consider the govern rules of law which the courts in that connection. any passing upon validity statutory the enactment power

the the courts is not unlimited. is circumscribed recognized rules, applicable well some of which as to the and intendments are favor presumptions case that all are: constitutionality that all doubts are to statute; the of a validity of against the be resolved in favor of and not of our branch an act of a coordinate statute; that before for the by the courts government invalid can be declared Constitution, such con- reason that it is in conflict with the in the unquestionable; that positive flict must be clear, and constitutionality the its fair, case reasonable doubt in favor the be resolved upheld, should be and doubt statute to be expressed Legislature; that it is also of the will integrity and with Legislature with presumed acted that the limitations laid keep and purpose within the restrictions constitutionality law; that when down in the fundamental or fact state of existence of some depends of a on the statute Legis- primarily is thereof facts, determination unless con- acquiesce therein will lature the courts statute trary that the enactment clearly appears; presumption is, that the Governor implies, conclusive performed their Legislature the members justifying duty, existence facts and have ascertained the even in the this is true legislation; requiring in the finding facts embodied express of those absence of an legis- question or review the act; and that courts Cal.Jur., p. seq., 628 et (5 facts. lative determination apply presumptions many cited.) These there and the cases exercise passed emphasis to statutes with particular many 1088, and cases Am.Jur., p. power (11 police cited). recognizes general rule. court

A recent statement Porterfield, 28 Cal.2d P.2d In In re authorities, it “Con- 675], supporting is said: A.L.R. generally to stitutionality application purpose it been said that when presumed. It has often definitely passes clearly appears statute ordinance or infringes beyond police power the limits which bound law, it should secured the fundamental be declared void.” question Honey

Pertinent the immediate Galeener v. cutt, 100, 104 Cal. P. This court approved there 595]. the doctrine announced in earlier cases. It was said that it questioned had that, since been the never when to enact depends a law fact, the existence of a the passage of the is, implies, act and the presumption conclusive that the 754 fact been legislative

existence the ascertained the (See body. Spencer, In re Cal. 400 396, 896, also 149 P. [86 Am.St.Rep. 137, ; Superior 9 117 Ann.Cas. Martin v. 1105] Court, 93, 101 762]; 194 Cal. P. Gas & Elec. Co. v. [227 Pacific Moore, Cal.App.2d 91, 37 95 819].) P.2d [98 province go

It is not within courts behind the findings Legislature of the and determine that conditions did gave justified Only not exist which to and rise enactment. when, beyond doubt, agree reasonable all rational men would background that factual did not warrant the enactment designed ostensibly preserve a statute which was general say arbitrary welfare can a is we statute capricious. (In re 162 Miller, 427]; People 687 P. Cal. [124 42 George, Cal.App.2d 404].) P.2d It is a well settled [109 may may if exposition, rule constitutional a statute or be, according circumstances, not to the within limits legislative authority, the existence neces circumstances sary support presumed. (Sweet Rechel, must be 43, question U.S. S.Ct. L.Ed. When a debatable, is fact debated and and the extent to a special applied constitutional limitation be under should is consideration, may properly conclusion be influenced widespread long it, belief concerning continued is within judicial cognizance. Oregon, (Muller v. 208 U.S. 412, 421 324, 52 L.Ed. 551].) S.Ct. Legislature is, in the instance, judge first what necessary public opinion for the welfare. Earnest conflict of especially question

makes it Legislature for the and not (Erie for the R. Williams, 685, 699, courts. R. Co. v. citing 1155], cases.) “It other legislation arbitrary, established that distinction in is not reasonably if state facts be can conceived that would it, sustain and the existence of that state of facts time at the law was enacted must be assumed. ... makes no difference disputed facts effect opposed by argument opinion strength. It is within serious not competency contrariety. of the courts to arbitrate in such . required . . And it not ... that we be convinced of the legislation.” (Rast Co., wisdom of the v. Van Deman & Lewis 342, 357, citing 240 U.S. 365-366 60 L.Ed. 679], cases.) point, long settled, “We need labor that where legislative scope police action is power, within the fairly questions reasonableness, debatable as to its wisdom propriety are not courts, determination of the

755 duty and the body on which rests legislative for that the of may in the balances test . We not responsibility decision. . . of sufficiency the facts to of weight and judicial of review the (Standard body legislative ...” of sustain the conclusion 430, 582, 586 S.Ct. Marysville, 584, Oil Co. 279 U.S. v. [49 questions of cases.) Underlying 856], 73 and cited legislation constitutionality of may fact which condition the constitutionality in the carry of presumption with them the overthrowing for absence of factual record some foundation of Co., F. v. Ins. (O'Gorman Young the statute. & Hartford 324].) 130, 282 75 L.Ed. 251, U.S. 257-258 S.Ct. [51 Again Supreme has reiterated the United Court States 194, page 209 Baldwin, Borden's v. 293 at F. P. Co. U.S. made 187, S.Ct. 79 L.Ed. : “When the classification [55 281] any legislature question, if state facts is called in of reasonably it, is a can be that would sustain there conceived presumption facts, one of that of existence state carry showing of who assails the classification must the burden knowledge resort common to or other matters which be judicially noticed, legitimate proof, or other to arbitrary. action is . principle . that the State has . broad in classification, power discretion in the exercise of its of regulation, constantly recognized by (People this Court.” v. Western Fruit 22 506-508 Growers, 494, Cal.2d P.2d [140 ; Hopkins, 106, U. Tel. 122 Western Co. v. 160 Cal. 13] [116 557]; P. County Angeles, Postal Tel. v. Los 160 Cable Co. of 129 566].) Cal. legislation P. Whether is wise or un [116 wise as a policy question matter of is a with which the courts not (Home Blaisdell, Bldg. concerned. & L. 290 Assn. 398, U.S. 231, 447-448 88 A.L.R. 413, 78 L.Ed. S.Ct. organized peculiarly qualified neither to de Courts are nor underlying questions of termine the fact with reference validity legislation be determined. must public policy properly do Differing ideas concern power them. courts no determine merits theories, investigation conflicting conduct an of facts bear ing upon questions public policy expediency, or or to sus legislation according or to whether tain frustrate legislative happen approve disapprove determina questions (Norman Baltimore R. tion of of fact. O. & 885, 1352], Co., 294 79 L.Ed. 95 A.L.R. U.S. ; A.L.R. affirming 265 N.Y. 37 N.E. 1523] article, 823, 824, cited; and cases pp. Am.Jur. see “Judicial Questions Affecting Determination Fact the Constitu Validity Legislative Action,” tional 6.) Harv.L.Rev. finding The fact that the Legislature is in favor of the truth one matter side of a as to which there is still room opinion difference of is not people’s material. What legislative representatives good public believe to for the accepted tending must be promote public welfare. It has been said that other would basis conflict with the spirit op Constitution and would sanction measures posed republican to a government. (Atlantic form of Coast Georgia, Line R. Co. v. 58 L.Ed. 1312]; White, 97, Viemeister v. 179 235 N.Y. N.E. 103 Am.St.Rep.859, 1 334, Ann.Cas. 70 ex rel. 796]; L.R.A. State Sullivan Dammann, ; Wis. 72 N.W. Stettler 687] O'Hara, 743, 217, Ore. 519 1916A P. Ann.Cas. L.R.A. 944], 475, 1917C affirmed 243

Text and authorities which constitute the factual basis legislative finding question the involved in the in statute here indicate that the opinion there is a difference of as to policy underlying wisdom the the enactments. Legislature Some the which factual considerations the by have taken an could into consideration are disclosed biological and examination of the sources of information on sociological phases problem and be said which background support form legislation for the reasoning upholding found in simi- the decisions the courts informa- lar statutes. A to a few reference of those sources tion suffice. will biological authority phase

On there is for the conclusion crossing the primary races gradually leads retrogression and to eventual extinction of type the resultant is parent (W. unless it fortified reunion with the stock. A. Dixon, D.,M. Journal American Medical Association, vol. Hoffman, p. (1893); Frederick L. statistician, Prudential America, Life Insurance Co. of American Economics Associa- tion, (1896) vol. “Race Traits Tendencies of the Negro”; Woodruff, E. Expansion American “The O. (1909).) September, 1927, in entitled, Races” an article Mixture,” appeared “Science,” “Race in volume page X, Davenport Carnegie Dr. Charles B. Foundation Washington, Department Experimental Evolution, said: uniform consequences “In the absence of rule as to of race discourage except it is crosses, where, well to it those cases crosses, clearly it produces superior Hawaiian-Chinese Negro-white progeny,” Filipino-European that the exception. crosses do not seem to fall within Encyclopedia (1924), page In volume 19 of Americana intermarriage “The racial been it is said: results of exceedingly produced variable. Sometimes a better crossing race. the case has been between This is when Weatherly closely . . . different Prof. U. G-. allied stocks. unquestionable yellow, fact writes: ‘It that the as well many qualities in negroid peoples possess as the desirable argued From which the are deficient. this it has whites been advantageous that it if all were blended into would be races embodying the excellencies of each. But type a universal long ago demonstrated that most scientific breeders have types than specializing desirable are secured rather results by merging them. attempt, line evidence of an based on color instinc- “.‘The preserve

tive distinctive values which a racial choice, to those ’ ’’ highest regard moment to group has come to as of the itself. In an before Club of address the Commonwealth California July 9, 1948, Gemmill, Mr. William African dele- South Organization and gate to International Labor one well acquainted sociological with social conditions manifesta- continent, made the statement tions South European Africa, population greatly outnumbered where natives, opposition are adamant both classes of all intermarriage mixing and that the free the races could general level. in fact lower data references on the result of misce- A collection of (1925) by of W. in “The Menace Color” J. genation is found University D.Se., Geology in the Gregory of (F.R.S., Professor says page that the intermixtures which Glasgow). 227 he On have been be- mankind progress been to the beneficial of a mixture and that the results nearly peoples related tween miscegena- widely against to warn divergent stock serve Mjoen of the Winderen Labora- races. Dr. A. tion of distinct J. (at 229) by Gregory p. tory, Norway, is Professor credited that the evidence special from studies with conclusion intermarriage against action for immediate sufficient to call where widely Gregory states that two distinct races. out, qualities not bred races are in contact the inferior widely ex- principle progeny, in the emphasized asserting eugenic literature. Similar views pressed in modern the unfortunate crossings results of between races, dissimilar including the American Negro-white, are ascribed author to Prof. H. Lundborg (1922); Cope, E. D. American geologist; Elwang (1904); Prof. N. S. Shaler (1904); Emile Gaboriau and Bon, Gustav Le France; F. L. Hoffman of the Prudential Insurance Co. of America (1923); Prof. A. E. Jenks; and Spencer Herbert (1892).

In March, 1926, Carnegie Institution Washington, D. C., accepted gift expressed one who his interest in problem crossing of race special with reference its significance for the any country future of containing a mixed population. The work was Depart- undertaken ment of Genetics, Carnegie An advisory Institution. com- organized mittee consisting was of W. Y. Bingham, Charles B. Davenport, E. L. Thorndike, and Clark Wissler. Mr. Steggerda Morris investigator. was selected as field Steg- Mr. gerda had had training genetics excellent in and psychology, and had a marked study shown for the analysis fitness project individual. The main was carried out Jamaica, B.W.I., studying in detail and comparatively, Negroes 100 each of adults of (Blacks), Europeans full-blooded (Whites), degrees and White-Black all mixtures of (Brown). Half hundred were of each sex. addition to the main project 1,200 preschool age some children of school and were Finally in 1929, observed and measured. an report extensive Carnegie Institution, published by was book form Crossing Jamaica,” by entitled “Race B. C. Davenport and Steggerda, in Morris collaboration others. The results investigation crossing of their indicated that distinct biologically and should be discouraged. races is undesirable Castle, Bussey W. E. Institution, University, Harvard “Biological Consequences article entitled and Social printed Crossing,” Race in volume American Journal Physical Anthropology (April, 1926), page 152: states on “If all inheritance simple of human traits were Mendelian inheritance, and unlimited in its natural selections were among action human racial populations, unrestricted then intercrossing might our light be recommended. But present knowledge, For, it. in the few would recommend place, first much that is best in human existence is matter crossings inheritance, biological social inheritance. Race not of ’’ disturb social inheritance. of its worst features. That is one sociological phase. This then leads to a consideration of Farge, J., typical are writings of Father John La S. subject the many have considered race-crosses who his sociological standpoint. Reference has been a made Question Negro” (1943). “The and the work Race Under “ grave heading Aspect,” Moral he writes: are “The [T]here intermarriage against any general practice of between reasons groups. reasons, different racial These where the members of a clearly prohibition a verified, amount to moral of such practice. great from the difference condition which

“These arise usually by respective is experienced members of merely riches, groups. poverty not a difference of is greater political power, but fact identifi- lesser or innu- given group far-reaching and affects cation with the . aspects ordinary daily life. . . merable solitaries, entire “Where is contracted borne, ma- easily persons interracial tension is more few but trimonially They into bring inclined with are solitaries. them parents of married their the orbit life and brothers and sisters uncles and aunts and entire social circle revolve. All of are affected the social these tension, peace unity which in turn reacts marriage bond. difficulty further children

“When enter scene self-sacrificing complicated complete entirely unless then understanding And has been reached beforehand. even beyond . the social effects control. . . be culturally point Negro “In of facts group as the becomes advanced, appears corresponding tendency there to seek no intermarriage with other races.” legal from scientific articles and excerpts foregoing 03ily that there is not some make it clear authorities legislative determination support the great deal evidence 1933) intermarriage (last Legislature made our incompatible Negroes and white between subject regulation general proper and therefore a welfare may be maintain power. some who police There under sufficiently large adequate data on not there does exist to made to the effects of the to enable a decision scale legis- admixture Negro However, of white and blood. original completion upon of scien- required to wait lators underlying carry whether the facts tific research to determine fully regulation. weight to more sustain sufficient subject statutory that the A review indicates classi Legislature light was fication determined in of all (see requirements Phy the circumstances and also California Garrison, 790, 4, sicians' Service v. 28 802 P.2d Cal.2d [172 306]; Livingston Robinson, 167 A.L.R. 10 v. Cal.2d 730 [76 1192]); government tripartite system P.2d that under our judgment this court not substitute its for that of the Legislature necessity toas for the where it enactment was, here, upon existing based conditions scientific as belief; data and that even in field of fundamental always recognized been Legislature that where the has particular appraised a specific situation and found a condi sufficiently important justify tion regulation, such deter given great weight challenged mination is when the law is grounds. on constitutional favoring present day amalgamation

Those of these distinct irrespective cautionary races of scientific data of a nature upon experience based others, sup- or who feel that a posed infrequency of interracial unions will minimize unde- consequences sirable point justify lifting that would upon prohibition unions, should direct efforts Legislature to the in order to change policy effect the in state they espouse—as was done in in 1843, Massachusetts 1859, 1866, 1868, Kansas New Washington Mexico 1881, Island in Michigan Rhode 1883, Minnesota and in 1887. Ohio The contention is also advanced fall statute must equal protection

before the clause Fourteenth Amend showing ment pres because of lack of sufficient of clear and danger emergency. ent arising of an out The cases relied upon Oyama California, are v. 332 U.S. 633 269, S.Ct. [68 92 ; L.Ed. Sipuel Regents, v. Board 332 U.S. 631 --] 299, Railway L.Ed.-]; S.Ct. 92 si, Mail Assn. v. Cor [68 Hirabayashi 326 88 1483, ; 89 L.Ed. U.S. S.Ct. v. [65 2072] States, 1375, 1774]; United 81 320.U.S. S.Ct. 87 L.Ed. [63 Canada, Missouri ex rel. supra, 337; v. Gaines U.S. Williams v. Boilermakers, International etc. 27 Cal.2d 586 903]; Marinship P.2d Corp., and James v. 25 Cal.2d 721 [165 (see Shelley P.2d 160 A.L.R. v. also Kraemer [155 900] Sipes, McGhee v. U.S. 1 L.Ed. ; Hurd v. Hodge, -]

-]). cases, legislation These general, hold that discrim against inating particular persons or persons, groups of be race, cause or exceptional must have circumstances some cases necessity the source of enactment. These compelling divergent analyzed. They widely factual been have controlling. Here there no lack not backgrounds not 60 and our Civil do treatment. 69 of Code equal Sections Negro against of either the white or discriminate Alabama, 583; Jackson (Pace supra, 106 U.S. races. County P.2d Denver, supra, 109 Colo. 196 City and P. Estate, 101 Ore. 393 ; Paquet’s supra, In re 240] petitioner privilege Bach has the and the regulation does marrying group. within or her own his solely question difference not rest in race. inferiority, merely difference, superiority one of nor of underlying consequence factors but of and result. The closely justification miscegenation against constitute for laws against parallel validity prohibitions those which sustain the Code, marriages (Pen. Code, 285; incest and incestuous Civ. § 59; C.J.S., (Pen. 281; 42 Incest, 1), bigamy Code, and § § § Code, 61; Reyn Beason, 333; Civ. Davis v. 133 U.S. supra, § States, supra, olds v. United 98 ar 145). Moreover the U.S. gument upon equal protection proper based does not take into account the always extensive control the state exercised contract, over at the nor o'f the further fact that very being time the Constitution of the United States was miscegenation formulated was inimical to the considered public good upon by and colonies, was frowned and con any regarded having tinued to be so prohibited and in states substantial population time admixture at the the Fourteenth Amendment adopted. was fact, view of this unanimity judicial sustaining statutes, decision such impossible any guaranty seems to believe that constitutional prohibit legislation. was intended to 60 69 suggested that sections of the Civil It has been sufficiently compre because not Code are unconstitutional legislation it is that such does specifically More said hensive. pur as a result of preclude possibility progeny not marriages by persons into have con ported entered who possi origin, or failed disclose racial nor cealed matings or from bility illegitimate progeny of mixed of issue marriages validly racially contracted in other such mixed definitely it is es residents of this state. However states required remedy, states, seeking tablished might regulation possibly to all to extend cases “They (Badice York, 292.) 264 supra, v. New U.S. reached. 762

may mark and apart set types problems classes and according to the suggested needs dictated or expe (Skinner rience.” Oklahoma, v. 316 535, 540 U.S. S.Ct. [62 1110, 86 1655]; Bryant L.Ed. v. Zimmerman, 278 U.S. 63 61, S.Ct. equal 73 184].) protection L.Ed. [49 clause prevent does not Legislature recognizing “degrees (Tigner evil.” Texas, v. U.S. S.Ct. 879, 84 1124]; L.Ed. Truax Raich, U.S. 33 Legislature Nor is the prevented by equal protec tion confining clause from “its restrictions to those classes of cases y. where the need is (Miller deemed to be clearest.” Wilson, 236 59 L.Ed. 628] 0 “ given admittedly situation presents [W]here proper field for the police exercise of the power the extent of in its vocation application is a very largely matter which lies in legislative (Zahn discretion.” Board Works, Public 195 Cal. 497, 514 P. 388].) prohibiting The need for all miscegeny, together impracticalities with administrative any inherent such attempt, proper were matters for the Legislature to consider. And fact, fact, if it abe people some contract marriages such illegally, within this state or others contract marriages validly outside the state and subsequently here, reside support does not lend contention of unconstitutionality of the statute. argued

Finally, it is vague sections and 69 are too regulation and uncertain to constitute valid in that lack descriptive terms, definitions of mulatto, such as and are proof uncertain as to mode of of race. After almost years operation present of continuous preexisting laws, similar the appli claimed obstacles to cation of are more theoretical than real. statute event the contention is not a matter for consideration proceeding. application In the for license petitioner person Perez states that she is a white and the petitioner Negro. petition Davis states that he is a allegations the writ contains of the same facts. There is therefore no indefiniteness code sections that can avail petitioners; any problem proof. nor is there here charge the well-established rule that a of unconstitution ality can raised a case where that issue is involved action, only by the determination of the and then person persons adversely or a member of the class of affected. (American Fruit Parker, Growers v. Cal.2d 513 P.2d [140 23]; Willing, In re 12 Cal.2d ; P.2d Max [86 663] People 177]; P.2d Kunsman, 5 Factor Co. v. Cal.2d & [55 3]; A. F. P. Co., 211 Cal. 121 Mill. v. Globe Grain & [294 P. Com., 177 Cal. v. Industrial Acc. Estabrook Co. 610-612, Cal.App.2d 603, Monks, supra, 48 848]; Estate of Kirby miscegenation Arizona—see also involving law of Pass, v. ; P. Kirby, supra, 24 Ariz. 9 State 405] City and supra, 59 Ariz. 16 P.2d 882]—Jackson 240], P.2d County Denver, supra, 109 Colo. miscegenation state.) Here there involving a of that statute applied to the possible uncertainty no the statute as petitioners. discharged peremp-

The alternative writ should be and the tory denied. writ J., Spence,

Schauer, J., concurred. Respondent’s rehearing petition for a was denied October Shenk, J., Schauer, J., Spence, J., 1948. voted for a rehearing. A. No. In Bank. 20369. Oct.

[L. 1948.] SAMPSELL, PAUL W. THE JR., Petitioner, v. SUPERIOR COUNTY, Respondent. COURT OF LOS ANGELES

Case Details

Case Name: Perez v. Sharp

Court Name: California Supreme Court

Date Published: Oct 1, 1948

Citation: 198 P.2d 17

Docket Number: L. A. 20305

Court Abbreviation: Cal.