Loving v. Com.

• Citation: 206 Va. 924,147 S.E.2d 78
• Court: Supreme Court of Virginia
• Decision Date: 07 March 1966
• Parties: Richard Perry LOVING et al. v. COMMONWEALTH of Virginia.

Page 78

147 S.E.2d 78

206 Va. 924

Richard Perry LOVING et al. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

March 7, 1966.

Bernard S. Cohen, Philip J. Hirschkop, Alexandria (David Carliner, Washington, D.C., Lainof, Cohen & Cohen, Alexandria, on brief), for plaintiffs in error.

R. D. McIlwaine, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Kenneth C. Patty, Asst. Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

CARRICO, Justice.

On January 6, 1959, Richard Perry Loving and Mildred Jeter Loving, the defendants, were convicted, upon their pleas of guilty, under an indictment charging that 'the said Richard Perry Loving being a White person and the said Mildred Delores Jeter being a Colored person, did unlawfully and feloniously go out of the State of Virginia, for the purpose of being married and with the intention of returning to the State of Virginia and were married out of the State of Virginia, to-wit, in the District of Columbia on June 2, 1958, and afterwards returned to and resided in the County of Caroline, State of Virginia, cohabiting as man and wife.' (Code, § 20--58.) ¹

The trial court fixed 'the punishment of both accused at one year each in jail.' (Code, § 20--59.) ² The court suspended the sentences 'for a period of twenty-five years upon the provision that both accused leave Caroline County and the state of Virginia at once and do not return together or at the same time to said county and state for a period of twenty-five years.'

On November 6, 1963, the defendants filed a 'Motion to Vacate Judgment and Set Aside Sentence' alleging that they had complied with the terms of their suspended sentences but asserting that the statute under which they were convicted was unconstitutional and that the sentences imposed upon them were invalid.

The court denied the motion by an order entered on January 22, 1965, and to that order the defendants were granted this writ of error.

There is no dispute that Richard Perry Loving is a white person and that Mildred Jeter Loving is a colored person within the meaning of Code, § 20--58. Nor is there any dispute that the actions of the defendants, as set forth in the indictment, violated the provisions of Code, § 20--58. The sole contention of the defendants, with respect to their convictions, is that Virginia's statutes prohibiting the intermarriage of white and colored persons are violative of the Constitution of Virginia and the Constitution of the United States. Such statutes, the defendants argue, deny them due process of law and equal protection of the law.

The problem here presented is not new to this court nor to other courts, both state and federal, throughout the country. The question was most recently before this court in 1955, in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, remanded 350 U.S. 891, 76 S.Ct. 151, 100 L.Ed. 784, affd. 197 Va. 734, 90 S.E.2d 849, app. dism. 350 U.S. 985, 76 S.Ct. 472, 100 L.Ed. 852.

In the Naim case, the Virginia statutes relating to miscegenetic marriages were fully investigated and their constitutionality was upheld. There, it was pointed out that more than one-half of the states then had miscegenation statutes and that, in spite of numerous attacks in both state and federal courts, no court, save one, had held such statutes unconstitutional. The lone exception, it was noted, was the California Supreme Court which declared the California miscegenation statutes unconstitutional in Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (sub nom. Perez v. Lippold).

The Naim opinion, written for the court by Mr. Justice Buchanan, contains an exhaustive survey and citation of authorities, both case and text from both state and federal sources, upon the subject of miscegenation statutes. It is not necessary to repeat all those citations in this opinion because the defendants concede that the Naim case, if given effect here, is controlling of the question before us. They urge us, however, to reverse our decision in that case, contending that the decision is wrong because the judicial authority upon which it was based no longer has any validity. Our inquiry must be, therefore, whether a change in the Naim decision is required.

The defendants say that the Naim opinion relied upon Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, but argue that the United States Supreme Court reversed the Plessy decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.

The Plessy case, decided in 1896, involved an attack upon the constitutionality of a Louisiana statute requiring separate railway carriages for the white and colored races. The statute was upheld by the Supreme Court under the 'separate but equal' doctrine there enunciated by the court.

In the Brown case, decided in 1954, the Supreme Court ruled 'that in the field of public education the doctrine of 'separate but equal' has no place' and that 'Any language in Plessy v. Ferguson contrary to this finding is rejected.' 347 U.S., at p. 495, 74 S.Ct., at p. 692, 98 L.Ed., at p. 881.

The Plessy case was cited in the Naim opinion to show that the United States Supreme Court had made no decision at variance with an earlier holding by the Tenth Circuit Court of Appeals in Stevens v. United States, 146 F.2d 120, that 'a state is empowered to forbid marriages between persons of African descent and persons of other races or descents. Such a statute does not contravene the Fourteenth Amendment.'

The Naim opinion contained a quotation from the Plessy case that 'Laws forbidding the intermarriage of the two races * * * have been universally recognized as within the police power of the state.' Nothing was said in the Brown case which detracted in any way from the effect of the language quoted from the Plessy opinion. As Mr. Justice Buchanan pointed out in the Naim opinion, the holding in the Brown case, that the opportunity to acquire an education 'is a right which must be made available to all on equal terms,' cannot support a claim for the intermarriage of the races or that such intermarriage is a 'right which must be made available to all on equal terms.'

The United States Supreme Court itself has indicated that the Brown decision does not have the effect upon miscegenation statutes which the defendants claim for it. The Brown decision was announced on May 17, 1954. On November 22, 1954, just six months later, the United States Supreme Court denied certiorari in a case in which Alabama's statute forbidding intermarriage between white and colored persons had been upheld against the claim that the statute denied the Negro appellant 'her constitutional right and privilege of intermarrying with a white male person,' and that it violated the Privileges and Immunities, the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. Jackson v. State, 37 Ala.App. 519, 72 So.2d 114, 260 Ala. 698, 72 So.2d 116, cert. denied 348 U.S. 888, 75 S.Ct. 210, 99 L.Ed. 698.

The defendants also say that the Naim opinion relied upon Pace v. State of Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207, but contend that the United States Supreme Court overruled the Pace decision in McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222.

The Pace case, decided in 1883, involved an attack upon the constitutionality of an Alabama statute imposing a penalty for adultery or fornication between a white person and a Negro. Another statute provided a lesser penalty '(I)f any man and woman live together in adultery or fornication.' A white woman and Pace, a Negro, were convicted and sentenced under the first statute 'for living together in a state of adultery or fornication.' Pace appealed, claiming that the statute under which he had been convicted was violative of the Fourteenth Amendment. The court rejected this claim, holding that 'whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race.' 106 U.S., at p. 585, 1 S.Ct., at p. 639, 27 L.Ed., at p. 208.

In the McLaughlin case, decided in 1964, the Supreme Court had under review a Florida statute which made it unlawful for a white person and a Negro, 'not married to each other,' to 'habitually live in and occupy in the night time the same room.' The statute in dispute provided for a different burden of proof and a different penalty than were provided by other statutes relating to adultery and fornication generally. Florida sought to sustain the validity of the statute under the holding in Pace v. State of Alabama. The court, however, ruled the Florida statute invalid, saying of Pace v. State of Alabama that it 'represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.' 379 U.S., at p. 188, 85 S.Ct., at p. 286, 13 L.Ed.2d, at p. 226.

The Pace case, like the Plessy case, was cited in the Naim opinion to show that the United States Supreme Court had made no decision at variance with the rule that a state may validly forbid interracial marriages. The McLaughlin decision detracted not one bit from the position asserted in the Naim opinion.

Both parties to the McLaughlin controversy cited Florida's miscegenation statute, making it unlawful for a white person to marry a Negro. McLaughlin contended that the miscegenation statute was unconstitutional because it prevented him from asserting, against the cohabitation charge, the defense of common law marriage. Florida argued that it was necessary that its cohabitation statute be upheld so as to carry out the purposes of its miscegenation statute which, it contended, was 'immune from attack under the Equal Protection Clause.' The court ruled that it was unnecessary to consider McLaughlin's contention in this respect because the court was holding in his...