However, a better approach might be to recognize that the right of the individual to marry is a fundamental right…Posted in Excerpts/Quotes on 2013-02-03 23:05Z by Steven |
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.
C. Michael Conter, “Recent Decisions: Constitutional Law: Miscegenation Laws,” Marquette Law Review, Volume 48, Issue 4 (Spring 1965): pages 616-620.