Recent Decisions: Constitutional Law: Miscegenation Laws

Recent Decisions: Constitutional Law: Miscegenation Laws

Marquette Law Review
Volume 48, Issue 4 (Spring 1965)
pages 616-620

C. Michael Conter

Constitutional Law: Miscegenation Laws: The defendants were convicted under section 798.05 of the Florida statutes, which prohibited nighttime cohabitation of the same room by a Negro and a white of different sexes.

On appeal, their conviction was affirmed by the Florida Supreme Court in McLaughlin v. Florida because it felt bound by the decision of the United States Supreme Court in Pace v. Alabama and the decisions of many state courts upholding similar statutes. Both Pace and McLaughlin involve nearly corresponding statutory schemes. The Alabama statutes applicable in the Pace decision not only contained a statute which prohibited fornication by persons of different races, but also a general non-racial fornication statute. Similarly, the Florida statutes, aside from prohibiting interracial cohabitation, held adultery and fornication by people of the same race a crime.

Due to the established precedent and the similarities of the two situations, the Florida court adopted the Pace reasoning that the statute, although it contained racial classifications, was not discriminatory because both the Negro and the white received the same punishment. Secondly, the court viewed the offense committed by persons of different racial descent as an entirely distinct offense from one committed by persons of the same race, and one to which the general sections of the statutes are applicable. Therefore, the Florida court found that both the statutes are necessary in order to enforce the legislative purposes involved…

..The validity of the antimiscegenation law itself could also be questioned under the fourteenth amendment by requiring the showing of a reasonable legislative purpose for its enactment. There is serious doubt that any valid reason could be shown for this type of statute. In fact, the three basic arguments which are often advanced to support these statutes; namely, that the children of these marriages would be inferior, that social tensions and domestic problems are lessened, and that psychological hardships to the offspring are avoided, have been discredited. Therefore the application of a reasonable legislative purpose test would most likely lead to a finding of unconstitutionality under the equal protection clause of the fourteenth amendment, especially since the usual presumption of a valid legislative purpose is not applied to cases dealing with racial classifications.

However, a better approach might be to recognize that the right of the individual to marry is a fundamental right, protected under the clear and present danger test. Surely it is a right which can be considered as important to the individual as is his right to own property or his freedom of speech. The United States Supreme Court has acknowledged that marriage and procreation are fundamental to the very existence and survival of the race.

This test has been applied to the right of the individual to own property, mentioned in the first part of the fourteenth amendment. Another right mentioned in this part of the amendment is the right to liberty, to which the clear and present danger test has also been applied. The right to marry has been recognized as being embodied in the concept of liberty under the fourteenth amendment…

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