Mixed Race Studies

Constitutionality Of Miscegenation Statutes: McLaughlin v. Florida

Maryland Law Review
Volume 25, Issue 1 (1965)
pages 41-48

Lee M. Miller

The appellants, a Negro man and a white woman, were convicted of violating a Florida statute which proscribed cohabitation between Negro and white persons who are not married to each other. The Florida Supreme Court upheld the conviction. On appeal to the Supreme Court of the United States, the appellants claimed: (1) The statute was invalid as a denial of equal protection of the laws since it applied only to members of certain races, and (2) they were denied due process and equal protection of the laws because a Florida law prohibiting interracial marriage prevented them from establishing the defense of common law marriage. The appellants thus hoped to reach the issue of whether the state’s prohibition of interracial marriage contravened the fourteenth amendment. The Supreme Court, basing its decision on the single issue of equal protection (appellants’ first claim), set aside the conviction and invalidated the cohabitation statute. Finding this claim to be dispositive of the case, the Court refrained from expressing any view as to the constitutionality of the law prohibiting interracial marriages.

The provisions of state statutes banning interracial marriage, often called miscegenation statutes, vary considerably, but today all states which have such statutes ban Negro-white marriages, and all declare the proscribed interracial marriages void. Most statutes provide criminal penalties, thus making race an element of a crime. The Maryland statute, for example, proscribes Negro-white and Malay-white marriages and has a mandatory penitentiary sentence.

At one time or another, over half the states had miscegenation statutes. Although these statutes have been repealed by twenty state legislatures, they remain in effect in nineteen other states. Six states have included miscegenation prohibitions in their state constitutions. The highest courts of only two states have held their miscegenationn statutes unconstitutional. Alabama declared its statute unconstitutional in 1872 but reversed itself five years later; California declared its statute unconstitutional in 1948. State courts and lower federal courts have upheld the constitutionality of such statutes. The Supreme Court of the United States has never ruled on the issue. In two cases reaching that Court in recent years, certiorari was denied in one and the issue bypassed in the other.”…

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