Naim v. Naim

• Citation: 87 S.E.2d 749,197 Va. 80
• Decision Date: 13 June 1955
• Docket Number: No. 4368,4368
• Parties: HAN SAY NAIM v. RUBY ELAINE NAIM. Record
• Court: Supreme Court of Virginia

Page 749

87 S.E.2d 749

197 Va. 80

HAN SAY NAIM v. RUBY ELAINE NAIM.

Record No. 4368.

Supreme Court of Appeals of Virginia

June 13, 1955.

David Carliner and Stant & Mirman, for the appellant.

Bangel, Bangel & Bangel, for the appellee.

J. Lindsay Almond, Jr., Attorney General; C. F. Hicks, Assistant Attorney General and R. D. McIlwaine, III, Assistant Attorney General, amici curiae.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

This is an appeal from a decree of the court below holding the marriage between the appellant and the appellee to be void under § 20-54 of the Code of Virginia, 1950, which is part of 'An ACT to preserve racial integrity,' enacted by the General Assembly and approved March 20, 1924 (Acts 1924, ch. 371).

The material facts are not in dispute. The suit was brought by the appellee, who is a white person, duly domiciled in Virginia. The appellant is a Chinese and was a non-resident of the State at the time of the institution of the suit. On June 26, 1952, they left Virginia to be married in North Carolina. They were married in that State and immediately returned to Norfolk, Virginia, where they lived together as husband and wife. It is conceded that they left Virginia to be married in North Carolina for the purpose of evading the Virginia law which forbade their marriage.

The Virginia statute, § 20-54, in effect at the time of the marriage, is as follows:

'It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term 'white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.'

Virginia statutes regarding the intermarriage of white and colored persons in effect at the date of the marriage, and now in effect, provide that all marriages between a white person and a colored person shall be absolutely void (§ 20-57); that if a white person and a colored person go out of the State for the purpose of being married and with the intention of returning, and after being married return and reside here, and cohabit as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. Section 20-59 provides that they shall be guilty of a felony and confined in the penitentiary for not less than one nor more than five years. *

As stated in appellant's brief, the only question at issue is whether the marriage of the appellant and appellee could be annulled on the ground of their racial ineligibility to marry one another.

The first assignment of error charges that the trial court was constitutionally without the power to annul the marriage on the basis of race; in other words, that the court did not have requisite potential jurisdiction. This argument seems to be in anticipation of a contention that was not made by the Commonwealth, which appears amicus curiae, the appellee not appearing on this appeal. We said in Pretlow v. Pretlow, 177 Va. 524, 548-9, 14 S.E. (2d) 381, 387, that 'annulment rests within the inherent power of equity;' but of course if the Federal Constitutions forbids the enforcement of the statute under which the court acted, it likewise forbids the enforcement of the same prohibition by independent judicial action. 'A State acts by its legislative, its executive or its judicial authorities. It can act in no other way. ' Ex Parte Virginia, 100 U.S. 339, 347, 25 L.ed. 676, 679. 'The judicial act of the highest court of the state, in authoritatively construing and enforcing its laws, is the act of the state. ' Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.ed. 97; Shelley v. Kraemer, 334 U.S. 1, 15, 68 S.Ct. 836, 842-3, 92 L.ed. 1161, 3 A.L.R. (2d) 441.

We need not linger over this first assignment because the remaining assignment of error presents the real issue -- whether the statute in question is beyond the power of the State to enact under the Due Process and Equal Protection clauses of the Fourteenth Amendment.

Marriage, the appellant concedes, is subject to the control of the States. Nearly seventy years ago the Supreme Court said, and it has said nothing to the contrary since: 'Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature. ' Maynard v. Hill, 125 U.S. 190, 31 L.ed. 654, 657, 8 S.Ct. 723. And nine years before that: 'Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. ' Reynolds v. United States, 98 U.S. 145, 25 L.ed. 244, 250. That case was written by Chief Justice Waite, who said, in upholding a conviction of bigamy against a defense on the ground of the religious practice of polygamy authorized by the defendant's church 'it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.'

In the same year, 1878, it was written by this court, in Kinney v. Commonwealth, 71 Va. (30 Gratt.) 858, 862:

'There can be no doubt as to the power of every country to make laws regulating the marriage of its own subjects; to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying. The right to regulate the institution of marriage; to classify the parties and persons who may lawfully marry; to dissolve the relation by divorce; and to impose such restraints upon the relation as the laws of God, and the laws of propriety, morality and social order demand, has been exercised by all civilized governments in all ages of the world. ' See also Ex Parte Kinney, 3 Hughes 1, 14 Fed.Cas. 602, 3 Va. Law J. 370.

More recently, in wood v. Commonwealth, 159 Va. 963, 965, 166 S.E. 477, this court said 'that the preservation of racial integrity is the unquestioned policy of this State, and that it is sound and wholesome, cannot be gainsaid. ' And in Toler v. Oakwood &c. Corp., 173 Va. 425, 434, 4 S.E. (2d) 364, 368: 'There can be no question of the public policy of Virginia with reference to miscegenation.'

In State v. Gibson, 36 Ind. 389, 10 Am.Rep. 42, a statute prohibiting the intermarriage of negroes and white persons was held not to violate any provision of the Fourteenth Amendment or the Civil Rights laws. In the course of a well-reasoned and well-supported discussion of the powers retained by and inherent in the States under the Constitution, the court said:

'* * * In this State marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself, is recognized in all Christian and civilized nations, and is essential to the peace, happiness, and well-being of society. * * * The right, in the states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the states suffer or permit any interference therewith. If the federal government can determine who may marry in a state, there is no limit to its power. * * *. ' 36 Ind. at 402-3.

It was said in that case that the question was one of difference between the races, not of superiority or inferiority, and that the natural law which forbids their intermarriage and the social amalgamation which leads to a corruption of races is as clearly divine as that which imparted to them different natures.

In Green v. State, 58 Ala. 190, 29 Am.Rep. 739, the question was whether the State could make the marriage of a white person with a person of the colored race a punishable offense. The court held that the State had and retained that power; that while marriage was a contract, it was one of a peculiar character and subject to peculiar principles, the most interesting and important in its nature of any in society, and not embraced in the constitutional interdiction of legislative acts impairing the obligation of contracts. Manifestly, said the court, it is for the peace and happiness of the colored race, as well as of the white, that laws prohibiting intermarriage of the races should exist, and 'How, then, can it be maintained that the States of this Union, in adopting amendments which make no allusion to such intermarriages, intended to deprive themselves of the important power of regulating matters of so great consequence and delicacy within their own borders for themselves, as it always was their undoubted right to do.' 29 Am.Rep. at 743.

In 36 Am. Jur., Miscegenation, § 3, p. 452, it is said:

'In accordance with the power of every country to make laws regulating the marriage of its own subjects, to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying, it is considered as well settled that although miscegenation statutes have been persistently attacked on the ground that they are violative of the United States Constitution, they nevertheless constitute a proper exercise of the power of each state to control its own citizens. * * *.'

More than half of the States of the Union have miscegenation statutes. With only one exception they have been upheld in an unbroken line of decisions in every State...