Perez v. Sharp

Andrea D. Perez et al., Petitioners, v. W. G. Sharp, as County Clerk, etc., Respondent. . . .

Proceeding in mandamus to compel county clerk to issue a certificate of registry and a license to marry. Writ granted.

Daniel G. Marshall for Petitioners.

Harold W. Kennedy, County Counsel (Los Angeles), and Charles C. Stanley, Jr., Deputy County Counsel, for Respondent.

Traynor, J. – In this proceeding in mandamus, petitioners seek to compel the County Clerk of Los Angeles County to issue them a certificate of registry (Civ. Code, § 69a) and a license to marry. (Civ. Code, § 69.) In the application for a license, petitioner Andrea Perez states that she is a white person and petitioner Sylvester Davis that he is a Negro. Respondent refuses to issue the certificate and license, invoking Civil Code, section 69, which provides: ". . . no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race."

Civil Code, section 69, implements Civil Code, section 60, which provides: "All marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void." This section originally appeared in the Civil Code in 1872, but at that time it prohibited marriages only between white persons and Negroes or mulattoes. It [32 Cal.2d 713] succeeded a statute prohibiting such marriages and authorizing the imposition of certain criminal penalties upon persons contracting or solemnizing them. (Stats. 1850, ch. 140, p. 424.) Since 1872, Civil Code, section 60, has been twice amended, first to prohibit marriages between white persons and Mongolians (Stats. 1901, p. 335) and subsequently to prohibit marriages between white persons and members of the Malay race. (Stats. 1933, p. 561.)

Petitioners contend that the statutes in question are unconstitutional on the grounds that they prohibit the free exercise of their religion and deny to them the right to participate fully in the sacraments of that religion. They are members of the Roman Catholic Church. They maintain that since the church has no rule forbidding marriages between Negroes and Caucasians, they are entitled to receive the sacrament of matrimony.

The provision of the First Amendment to the Constitution of the United States that Congress shall make no law "respecting an establishment of religion, or prohibiting the free exercise thereof" is encompassed in the concept of liberty in the Fourteenth Amendment. State legislatures are therefore no more competent than Congress to enact such a law. (Cantwell v. Connecticut, 310 U.S. 296, 303 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].) They may, however, regulate conduct for the protection of society, and insofar as their regulations are directed towards a proper end and are not unreasonably discriminatory, they may indirectly affect religious activity without infringing the constitutional guarantee. Although freedom of conscience and the freedom to believe are absolute, the freedom to act is not. (Cantwell v. Connecticut, supra, at pp. 303-304.)

The regulation of marriage is considered a proper function of the state. It is well settled that a legislature may declare monogamy to be the "law of social life under its dominion," even though such a law might inhibit the free exercise of certain religious practices. (Reynolds v. United States, 98 U.S. 145, 166 [25 L.Ed. 244]; Davis v. Beason, 133 U.S. 333, 343 [10 S.Ct. 299, 33 L.Ed. 637].) If the miscegenation law under attack in the present proceeding is directed at a social evil and employs a reasonable means to prevent that evil, it is valid regardless of its incidental effect upon the conduct of particular religious groups. If, on the other hand, the law is discriminatory and irrational, [32 Cal.2d 714] it unconstitutionally restricts not only religious liberty but the liberty to marry as well.

The due process clause of the Fourteenth Amendment protects an area of personal liberty not yet wholly delimited. "While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." (Italics added; Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 67 L.Ed. 1042].) Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means.

No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary. The state's interest in public education, for example, does not empower the Legislature to compel school children to receive instruction from public teachers only, for it would thereby take away the right of parents to "direct the upbringing and education of children under their control." (Pierce v. Society of Sisters, 268 U.S. 510, 534-535 [45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468].) Again, the state's vital concern in the prevention of crime and the mental health of its citizens does not empower the Legislature to deprive "individuals of a right which is basic to the perpetuation of a race--the right to have offspring" by authorizing the sterilization of criminals upon an arbitrary basis of classification and without a fair hearing. (Skinner v. Oklahoma, 316 U.S. 535, 536 [62 S.Ct. 1110, 86 L.Ed. 1655].) [32 Cal.2d 715]

The right to marry is as fundamental as the right to send one's child to a particular school or the right to have offspring. Indeed, "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." (Skinner v. Oklahoma, supra, at p. 541.) Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.

I.

Since the right to marry is the right to join in marriage with the person of one's choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry. It must therefore be determined whether the state can restrict that right on the basis of race alone without violating the equal protection of the laws clause of the United States Constitution.

"Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]; Yu Cong Eng v. Trinidad, 271 U.S. 500 [46 S.Ct. 619, 70 L.Ed. 1059]; Hill v. Texas, 316 U.S. 400 [62 S.Ct. 1159, 86 L.Ed. 1559]." (Hirabayashi v. United States, 320 U.S. 81, 100 [63 S.Ct. 1375, 87 L.Ed. 1774].) In the Hirabayashi case the United States Supreme Court held that despite the fact that under the Constitution of the United States "racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others. . . . The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction [32 Cal.2d 716] may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant. . . . The fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular association with Japan." (320 U.S. 81, 100-101.) Whether or not a state could base similar measures on the peril caused by a national emergency in the face of the equal protection of the laws clause of the United States Constitution, which does not apply to the federal government, it clearly could not make such a distinction based on ancestry in the absence of an emergency.

A state law prohibiting members of one race from marrying members of another race is not designed to meet a clear and present peril arising out of an emergency. In the absence of an emergency the state clearly cannot base a law impairing fundamental rights of individuals on general assumptions as to traits of racial groups. It has been said that a statute such as section 60 does not discriminate against any racial group, since it applies alike to all persons whether Caucasian, Negro, or members of any other race. (In re Estate of Paquet, 101 Ore. 393, 399 [200 P. 911].) The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals. (State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 351 [59 S.Ct. 232, 83 L.Ed. 208]; McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235 U.S. 151, 161-162 [35 S.Ct. 69, 59 L.Ed. 169].) In construing the equal protection of the laws clause of the Constitution, the United States Supreme Court has declared that the constitutionality of state action must be tested according to whether the rights of an individual are restricted because of his race. Thus, in holding invalid state enforcement of covenants restricting the occupation of real property on grounds of race, the Supreme Court of the United States declared: "The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white [32 Cal.2d 717] persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." (Shelley v. Kraemer, 334 U.S. 1 [68 S.Ct. 836, 846, 92 L.E.d. ___].) . . . Since the essence of the right to marry is freedom to join in marriage with the person of one's choice, a segregation statute for marriage necessarily impairs the right to marry. [32 Cal.2d 718]

In determining whether the public interest requires the prohibition of a marriage between two persons, the state may take into consideration matters of legitimate concern to the state. Thus, disease that might become a peril to the prospective spouse or to the offspring of the marriage could be made a disqualification for marriage. (See for example, Civ. Code, §§ 79.01, 79.06.) Such legislation, however, must be based on tests of the individual, not on arbitrary classifications of groups or races, and must be administered without discrimination on the grounds of race. (Yick Wo v. Hopkins, 118 U.S. 356, 373 [6 S.Ct. 1064, 30 L.Ed. 220].) . . . By restricting the individual's right to marry on the basis of race alone, they violate the equal protection of the laws clause of the United States Constitution.

II.

The parties, however, have argued at length the question whether the statute is arbitrary and unreasonable. They have assumed that under the equal protection clause the state may classify individuals according to their race in legislation regulating their fundamental rights. If it be assumed that such a classification can validly be made under the equal protection clause in circumstances besides those arising from an emergency, the question would remain whether the statute's classification of racial groups is based on differences between those groups bearing a substantial relation to a legitimate legislative objective. (Barker Bros., Inc. v. Los Angeles, 10 Cal.2d 603, 609 [76 P.2d 97]; Gulf etc. R. Co. v. Ellis, 165 U.S. 150, 165, 166 [17 S.Ct. 255, 41 L.Ed. 666]; Quaker City [32 Cal.2d 719] Cab Co. v. Pennsylvania, 277 U.S. 389, 400 [48 S.Ct. 553, 72 L.Ed. 927].) Race restrictions must be viewed with great suspicion, for the Fourteenth Amendment "was adopted to prevent state legislation designed to discriminate on the basis of race or color" (Railway Mail Ass'n. v. Corsi, 326 U.S. 88, 94 [65 S.Ct. 1483, 89 L.Ed. 2072]; Williams v. International Brotherhood of Boilermakers, 27 Cal.2d 586, 590 [165 P.2d 903]) and expresses "a definite national policy against discriminations because of race or color." (James v. Marinship Corp., 25 Cal.2d 721, 740 [155 P.2d 329, 160 A.L.R. 900].) Any state legislation discriminating against persons on the basis of race or color has to overcome the strong presumption inherent in this constitutional policy. "Only the most exceptional circumstances can excuse discrimination on that basis in the face of the equal protection clause . . ." (Oyama v. California, 332 U.S. 633 [68 S.Ct. 269, 275, 92 L.Ed. ___].) We shall therefore examine the history of the legislation in question and the arguments in its support to determine whether there are any exceptional circumstances sufficient to justify it.

California's first miscegenation statute (Stats. 1850, ch. 140, p. 424) was enacted at the same time as two other statutes concerning race. It has been held that these three statutes were in pari materia and therefore to be read together. (Estate of Stark, 48 Cal.App.2d 209, 214 [119 P.2d 961].) The two companion statutes provided: "No black or mulatto person, or Indian, shall be permitted to give evidence in favor of, or against, any white person. Every person who shall have one-eighth part or more of Negro blood shall be deemed a mulatto, and every person who shall have one half of Indian blood shall be deemed an Indian." (Stats. 1850, ch. 99, § 14, p. 230; repealed Code Civ. Proc., § 18, 1872.) "No black, or mulatto person, or Indian, shall be permitted to give evidence in any action to which a white person is a party, in any Court of this State. Every person who shall have one eighth part or more of negro blood, shall be deemed a mulatto; and every person who shall have one half Indian blood, shall be deemed an Indian." (Stats. 1850, ch. 142, § 306, p. 455; repealed Code Civ. Proc., § 18, 1872.)

In 1854, this court held that Chinese (and all others not white) were precluded from being witnesses against white persons on the basis of the statute quoted above. (People v. Hall, 4 Cal. 399, 404.) The considerations motivating the decision [32 Cal.2d 720] are candidly set forth: "The anomalous spectacle of a distinct people [Chinese], living in our community, recognizing no laws of this State except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference, is now presented, and for them is claimed, not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our Government." (People v. Hall, supra, at pp. 404-405.) For these reasons, therefore, "all races other than Caucasian" were held to be included in a statute referring only to a "black or mulatto person, or Indian."

California courts are not alone in such utterances. Many courts in this country have assumed that human beings can be judged by race and that other races are inferior to the Caucasian. Respondent's position is based upon those premises. He justifies the prohibition of miscegenation on grounds similar to those set forth in the frequently cited case of Scott v. State, (1869), 39 Ga. 321, 324: "The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the full blood of either race." Modern experts are agreed that the progeny of marriages between persons of different races are not inferior to both parents. Nevertheless, even if we were to assume that inter-racial [32 Cal.2d 721] marriage results in inferior progeny, we are unable to find any clear policy in the statute against marriages on that ground.

Civil Code, section 60, like most miscegenation statutes (see, Vernier, American Family Laws, § 44), prohibits marriages only between "white persons" and members of certain other so-called races. Although section 60 is more inclusive than most miscegenation statutes, it does not include "Indians" or "Hindus" (see, United States v. Bhagat Singh Thind, 261 U.S. 204, 214-215 [43 S.Ct. 338, 67 L.Ed. 616]); nor does it set up "Mexicans" as a separate category, although some authorities consider Mexico to be populated at least in part by persons who are a mixture of "white" and "Indian." (See, 15 Encyclopedia Britannica, pp. 381-382, 60 Harv.L. Rev. 1156-1158.) Thus, "white persons" may marry persons who would be considered other than white by respondent's authorities, and all other "races" may intermarry freely.

The Legislature therefore permits the mixing of all races with the single exception that white persons may not marry Negroes, Mongolians, mulattoes, or Malays. . . . Furthermore, there is no ban on illicit sexual relations between Caucasians and members of the proscribed races. Indeed, it is covertly encouraged by the race restrictions on marriage.

Nevertheless, respondent has sought to justify the statute by contending that the prohibition of intermarriage between Caucasians and members of the specified races prevents the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians.

Respondent submits statistics relating to the physical inferiority of certain races. Most, if not all, of the ailments to which he refers are attributable largely to environmental factors. Moreover, one must take note of the statistics showing that there is a higher percentage of certain diseases among Caucasians than among non-Caucasians. The categorical statement that non-Caucasians are inherently physically inferior is without scientific proof. In recent years scientists have attached great weight to the fact that their segregation in a generally inferior environment greatly increases their liability to physical ailments. In any event, generalizations [32 Cal.2d 723] based on race are untrustworthy in view of the great variations among members of the same race. The rationalization, therefore, that marriage between Caucasians and non-Caucasians is socially undesirable because of the physical disabilities of the latter, fails to take account of the physical disabilities of Caucasians and fails also to take account of variations among non-Caucasians. The Legislature is free to prohibit marriages that are socially dangerous because of the physical disabilities of the parties concerned. (See, Civ. Code §§ 79.01, 79.06.) The miscegenation statute, however, condemns certain races as unfit to marry with Caucasians on the premise of a hypothetical racial disability, regardless of the physical qualifications of the individuals concerned. . . . 

Respondent also contends that Negroes, and impliedly the other races specified in section 60, are inferior mentally to Caucasians. It is true that in the United States catalogues of distinguished people list more Caucasians than members of other races. It cannot be disregarded, however, that Caucasians are in the great majority and have generally had a more advantageous environment, and that the capacity of the members of any race to contribute to a nation's culture depends in large measure on how freely they may participate in that culture. There is no scientific proof that one race is superior to another in native ability. . . . 

Respondent contends, however, that persons wishing to marry in contravention of race barriers come from the "dregs of society" and that their progeny will therefore be a burden on the community. There is no law forbidding marriage among the "dregs of society," assuming that this expression is capable of definition. If there were such a law, it could not be applied without a proper determination of the persons that fall within that category, a determination that could hardly be made on the basis of race alone.

Respondent contends that even if the races specified in the statute are not by nature inferior to the Caucasian race, the statute can be justified as a means of diminishing race tension and preventing the birth of children who might become social problems. [32 Cal.2d 725]

It is true that in some communities the marriage of persons of different races may result in tension. Similarly, race tension may result from the enforcement of the constitutional requirement that persons must not be excluded from juries solely on the ground of color, or segregated by law to certain districts within a city. In Buchanan v. Warley, 245 U.S. 60, 81 [38 S.Ct. 16, 62 L.Ed. 149], the Supreme Court of the United States declared unconstitutional a statute forbidding a "white person" to move into a block where the greater number of residences were occupied by "colored persons" and forbidding a "colored person" to move into a block where the greater number of residences were occupied by "white persons." The contention was made that the "proposed segregation will promote the public peace by preventing race conflicts." The court stated in its opinion that desirable "as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution." (See, Cantwell v. State, 310 U.S. 296, 310 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].)

The effect of race prejudice upon any community is unquestionably detrimental both to the minority that is singled out for discrimination and to the dominant group that would perpetuate the prejudice. It is no answer to say that race tension can be eradicated through the perpetuation by law of the prejudices that give rise to the tension. Nor can any reliance be placed on the decisions of the United States Supreme Court upholding laws requiring segregation of races in facilities supplied by local common carriers and schools, for that court has made it clear that in those instances the state must secure equal facilities for all persons regardless of race in order that no substantive right be impaired. (Sipuel v. Board of Regents, 332 U.S. 631 [68 S.Ct. 299, 92 L.Ed. ___], [16 U.S. Law Week 4090]; Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350-351 [59 S.Ct. 232, 83 L.Ed. 208].) In the present case, however, there is no redress for the serious restriction of the right of Negroes, mulattoes, Mongolians, and Malays to marry; certainly there is none in the corresponding restriction of the right of Caucasians to marry. A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains. [32 Cal.2d 726]

Respondent relies on Pace v. Alabama, 106 U.S. 583 [1 S.Ct. 637, 27 L.Ed. 207], in which the United States Supreme Court held constitutional an Alabama statute imposing more severe punishment for adultery or fornication between a white person and a Negro than for such acts between individuals belonging to the same race. The Alabama statute also referred to intermarriage but the court considered the case as one dealing solely with adultery and nonmarital intercourse. We are not required by the facts of this case to discuss the reasoning of Pace v. Alabama except to state that adultery and nonmarital intercourse are not, like marriage, a basic right, but are offenses subject to various degrees of punishment. . . .

Respondent maintains that Negroes are socially inferior and have so been judicially recognized (e.g., Wolfe v. Georgia Ry. & Elec. Co., 2 Ga.App. 499 [58 S.E. 899, 901]), and that the progeny of a marriage between a Negro and a Caucasian suffer not only the stigma of such inferiority but the fear of rejection by members of both races. If they do, the fault lies not with their parents, but with the prejudices in the community and the laws that perpetuate those prejudices by giving legal force to the belief that certain races are inferior. If miscegenous marriages can be prohibited because of tensions suffered by the progeny, mixed religious unions could be prohibited on the same ground. 

There are now so many persons in the United States of mixed ancestry, that the tensions upon them are already diminishing and are bound to diminish even more in time. Already many of the progeny of mixed marriages have made important contributions to the community. In any event the contention that the miscegenation laws prohibit interracial marriage because of its adverse effects on the progeny is belied by the extreme racial intermixture that it tolerates. . . .

III.

Even if a state could restrict the right to marry upon the basis of race alone, sections 60 and 69 of the Civil Code are nevertheless invalid because they are too vague and uncertain to constitute a valid regulation. . . .

Section 60 of the Civil Code declares void all marriages of white persons with Negroes, Mongolians, members [32 Cal.2d 729] of the Malay race or mulattoes. In this section, the Legislature has adopted one of the many systems classifying persons on the basis of race. Racial classifications that have been made in the past vary as to the number of divisions and the features regarded as distinguishing the members of each division. The number of races distinguished by systems of classification "varies from three or four to thirty-four." (Boas, 7 Encyclopedia of Soc. Sciences, 25, 26.) The Legislature's classification in section 60 is based on the system suggested by Blumenbach early in the nineteenth century. (Roldan v. Los Angeles County, 129 Cal.App. 267, 273 [18 P.2d 706].) Blumenbach classified man into five races: Caucasian (white), Mongolian (yellow), Ethiopian (black), American Indian (red), and Malayan (brown). Even if that hard and fast classification be applied to persons all of whose ancestors belonged to one of these racial divisions, the Legislature has made no provision for applying the statute to persons of mixed ancestry. The fact is overwhelming that there has been a steady increase in the number of people in this country who belong to more than one race, and a growing number who have succeeded in identifying themselves with the Caucasian race even though they are not exclusively Caucasian. . . . The apparent purpose of the statute is to discourage the birth of children of mixed ancestry within this state. Such a purpose, however, cannot be accomplished without taking into consideration marriages of persons of mixed ancestry. A statute regulating fundamental rights is clearly unconstitutional if it cannot be reasonably applied to accomplish its purpose. This court therefore cannot determine the constitutionality of the statute in question on the assumption that its provisions might, with sufficient definiteness, be applied to persons not of mixed ancestry.

The only reference made in the statute to persons of mixed ancestry is the prohibition of marriages between a "white person" and a "mulatto." Even the term "mulatto" is not defined. The lack of a definition of that term leads to a special problem of how the statute is to be applied to a [32 Cal.2d 730] person, some but not all of whose ancestors are Negroes. The only case in this state attempting to define the term "mulatto" in section 60 of the Civil Code leaves undecided whether a person with less than one-eighth Negro blood is a "mulatto" within the meaning of the statute. (Estate of Stark, 48 Cal.App.2d 209, 214 [119 P.2d 961].) Even more uncertainty surrounds the meaning of the terms "white persons," "Mongolians," and "members of the Malay race."

If the statute is to be applied generally to persons of mixed ancestry the question arises whether it is to be applied on the basis of the physical appearance of the individual or on the basis of a genealogical research as to his ancestry. If the physical appearance of the individual is to be the test, the statute would have to be applied on the basis of subjective impressions of various persons having the same parents and consequently the same hereditary background could be classified differently. On the other hand, if the application of the statute to persons of mixed ancestry is to be based on genealogical research, the question immediately arises what proportions of Caucasian, Mongolian, or Malayan ancestors govern the applicability of the statute. . . .

In summary, we hold that sections 60 and 69 are not only too vague and uncertain to be enforceable regulations of a fundamental right, but that they violate the equal protection of the laws clause of the United States Constitution by impairing the right of individuals to marry on the basis of race [32 Cal.2d 732] alone and by arbitrarily and unreasonably discriminating against certain racial groups.

Let the peremptory writ issue as prayed.

Gibson, C.J., and Carter, J., concurred. . . .

SHENK, J.–I dissent.

The power of a state to regulate and control the basic social relationship of marriage of its domiciliaries is here challenged and set at nought by a majority order of this court arrived at not by a concurrence of reasons but by the end result of four votes supported by divergent concepts not supported by authority and in fact contrary to the decisions in this state and elsewhere.

It will be shown that such laws have been in effect in this country since before our national independence and in this state since our first legislative session. They have never been declared unconstitutional by any court in the land although frequently they have been under attack. It is difficult to see why such laws, valid when enacted and constitutionally enforceable in this state for nearly 100 years and elsewhere for a much longer period of time, are now unconstitutional under the same Constitution and with no change in the factual situation. It will also be shown that they have a valid legislative purpose even though they may not conform to the sociogenetic views of some people. When that legislative purpose appears it is entirely beyond judicial power, properly exercised, to nullify them.

This proceeding, therefore, involves a most important state function long since recognized as such. Indeed as late as June 7, 1948, it has been recognized by the Supreme Court of the United States "that the regulation of the incidents of the marital relation involves the exercise by the states of powers of the most vital importance." (Sherrer v. Sherrer, 334 U.S. 343 [68 S.Ct. 1087, 92 L.Ed. ___].) Because of the far-reaching effect of an order of this court in connection [32 Cal.2d 743] with this basic social relationship the subject is worthy of somewhat extended discussion in support of our statutes.

According to the verified petition for the writ of mandamus to compel the issuance of a marriage license, Andrea D. Perez is a white person and Sylvester S. Davis, Jr., is a Negro. Respondent county clerk rests his refusal to issue a certificate and license to them on the ground that he is expressly prohibited from so doing by the provisions of section 69 of the Civil Code, and upon the further ground that their purported marriage in this state would be illegal and void. (Civ. Code, § 60.)

Section 69 of the Civil Code contains the following proviso: ". . . no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race." And complementary section 60 of the same code reads: "All marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void."

Petitioners first contend that the above quoted statutory provisions deprive them of the religious freedom guaranteed by the First and Fourteenth Amendments of the federal Constitution and article I, section 4, of the Constitution of this state. They allege that they are members and communicants of the Roman Catholic Church; that it is the dogma, belief and teaching of the church that a person of the white race and a person of the Negro race, if otherwise eligible, are entitled to receive conjointly the sacrament of matrimony and to intermarry; that the refusal of respondent to issue the license denies to them the right to participate fully in the sacramental life of the religion in which they believe, prohibits the free exercise by them of their religion, and violates the guaranty of the free exercise and enjoyment of their religious profession and worship. It is further alleged that section 69 of the Civil Code is arbitrary, capricious and without reasonable relation to any purpose within the competency of the state to effect.

Respondent on the other hand contends that the classifications contained in sections 60 and 69 of the Civil Code do not transgress the petitioners' freedom of religious worship; that such classifications are reasonably designed to promote the general welfare and the interests of individual members of the races mentioned, and that the regulation is therefore a proper exercise of the police power of the state. [32 Cal.2d 744] . . .

Other considerations are presented in connection with petitioners' contentions that their religious liberty is being infringed. The First Amendment to the United States Constitution declares that Congress shall make no law respecting an establishment of religion or prohibit the free exercise thereof. The due process of law clause of the Fourteenth Amendment embraces this fundamental concept of liberty as expressed in the First Amendment and renders the states likewise incompetent to transgress it. However, this religious liberty "embraces two concepts,–freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." (Cantwell v. Connecticut, 310 U.S. 296, 303 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352]; Murdock v. Pennsylvania, 319 U.S. 105, 110 [63 S.Ct. 870, 891, 87 L.Ed. 1292, 146 A.L.R. 81]; Gospel Army v. City of Los Angeles, 27 Cal.2d 232 [163 P.2d 704].) It has long [32 Cal.2d 745] been held that conduct, consisting of practices and acts, remains subject to regulation for the health, safety and general welfare. For example, a legislative determination that monogamy is the "law of social life" has been held to prevail over the practice of polygamy and bigamy as a duty required, encouraged or suffered by religion. (Reynolds v. United States, supra, 98 U.S. 145; Davis v. Beason, 133 U.S. 333 [10 S.Ct. 299, 33 L.Ed. 637]; Cleveland v. United States, 329 U.S. 14 [67 S.Ct. 13, 91 L.Ed. 12].)

The reasoning behind this construction of the Constitution is obvious. The determination of proper standards of behavior must be left to the Congress or to the state legislatures in order that the well being of society as a whole may be safeguarded or promoted. . . .

Moreover, the right of the state to exercise extensive control over the marriage contract has always been recognized. The institution of matrimony is the foundation of society, and the community at large has an interest in the maintenance of its integrity and purity. (Sharon v. Sharon, 75 Cal. 1 [16 P. 345]; 16 Cal.Jur. 909.) The Supreme Court of the United States has stated: "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, 205 [8 S.Ct. 723, 31 L.Ed. 654].) And: "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, supra, 98 U.S. 145, 165.) In the language of the Supreme Court of Missouri: "The right to regulate marriage, the age at which persons may enter into that relation, the manner in which the rites may be celebrated, and the persons between whom it may be contracted, has been assumed and exercised by every [32 Cal.2d 746] civilized and Christian nation." (State v. Jackson, 80 Mo. 175, 179 [50 Am.Rep. 499].) Further: "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." (Kinney v. The Commonwealth, 30 Gratt. (Va.) 858, 862 [32 Am.Rep. 690].) . . . 

The prohibition of miscegenetic marriage is not a recent innovation in this state nor is such a law by any means unique among the states. A short history of miscegenetic marriage laws in this state and elsewhere will contribute to a better understanding of the problem at hand. A law declaring marriages between white persons and Negroes to be illegal and void was enacted at the first session of our Legislature. (Stats. 1850, ch. 140, p. 424.) Section 60 of the Civil Code declaring certain marriages invalid has existed since the advent of our codes in 1872, at which time it extended only to intermarriage between white persons and Negroes or mulattoes. It succeeded the prohibition against such marriages found in the above-mentioned statutes of 1850. Section 60 was amended in 1905 to include marriage between white persons and Mongolians (Stats. 1905, p. 554). The provisions of the law here attacked [32 Cal.2d 747] have remained unchallenged for nearly one hundred years and have been unchanged so far as the marriage of whites with Negroes is concerned. . . .  

Twenty-nine states in addition to California have similar laws. (Rhodes, "Annullment of Marriage" (1945); Charles S. Manguin, Jr., "The Legal Status of the Negro" (1940).) Six of these states have regarded the matter to be of such importance that they have by constitutional enactments prohibited their legislatures from passing any law legalizing marriage between white persons and Negroes or mulattoes. Several states refuse to recognize such marriages even if performed where valid (see Charles S. Manguin, Jr., "The Legal Status of the Negro" (1940); In re Takahashi's Estate, 113 Mont. 490 [129 P.2d 217]), particularly if an attempt has been made by residents of a state to evade the law (Eggers v. Olson, 104 Okla. 297 [231 P. 483]; State v. Kennedy, 76 N.C. 251 [22 Am.Rep. 683]). The infrequency of such unions is perhaps the chief reason why prohibitive laws are not found in the remaining states. (Reuter, "Race Mixture" (1931), p. 39; Rhodes, "Annullment of Marriage" (1945), pp. 101, 102.)

The ban on mixed marriages in this country is traceable from the early colonial period. For example, Maryland forbade the practice of marriage unions between Negroes or Indians and white persons as early as 1663. Laws forbidding marriages between Negroes and whites were passed in Massachusetts in 1705, in Delaware in 1721, in Virginia in 1726, [32 Cal.2d 748] and in North Carolina in 1741. In 1724, it was decreed in France that no Negro-white marriages were to take place in Louisiana. Most of the remaining states enacted similar legislation in the period between the formation of the United States and the Civil War.

Research has not disclosed a single case where a miscegenetic marriage law has been declared invalid. . . . Not only the state courts but the federal courts as well have uniformly sustained the validity of such laws. . . . 

In passing upon the validity of any statutory enactment the power of the courts is not unlimited. It is circumscribed by well recognized rules, some of which as applicable to the [32 Cal.2d 753] case are: that all presumptions and intendments are in favor of the constitutionality of a statute; that all doubts are to be resolved in favor of and not against the validity of a statute; that before an act of a coordinate branch of our government can be declared invalid by the courts for the reason that it is in conflict with the Constitution, such conflict must be clear, positive and unquestionable; that in the case of any fair, reasonable doubt of its constitutionality the statute should be upheld, and the doubt be resolved in favor of the expressed will of the Legislature; that it is also to be presumed that the Legislature acted with integrity and with a purpose to keep within the restrictions and limitations laid down in the fundamental law; that when the constitutionality of a statute depends on the existence of some fact or state of facts, the determination thereof is primarily for the Legislature and the courts will acquiesce therein unless the contrary clearly appears; that the enactment of the statute implies, and the conclusive presumption is, that the Governor and the members of the Legislature have performed their duty, and have ascertained the existence of facts justifying or requiring the legislation; that this is true even in the absence of an express finding of those facts embodied in the act; and that the courts may not question or review the legislative determination of the facts. (5 Cal.Jur., p. 628 et seq., and the many cases there cited.) These presumptions apply with particular emphasis to statutes passed in the exercise of the police power (11 Am.Jur., p. 1088, and many cases cited).

A recent statement by this court recognizes the general rule. In In re Porterfield, 28 Cal.2d 91, 103 [168 P.2d 706, 167 A.L.R. 675], with supporting authorities, it is said: "Constitutionality of purpose and application is generally to be presumed. It has often been said that it is only when it clearly appears that an ordinance or statute passes definitely beyond the limits which bound the police power and infringes upon rights secured by the fundamental law, that it should be declared void." . . .

The Legislature is, in the first instance, the judge of what is necessary for the public welfare. Earnest conflict of opinion makes it especially a question for the Legislature and not for the courts. (Erie R. R. Co. v. Williams, 233 U.S. 685, 699, 701 [34 S.Ct. 761, 58 L.Ed. 1155], citing other cases.) . . .  

Again the United States Supreme Court has reiterated in Borden's F. P. Co. v. Baldwin, 293 U.S. 194, at page 209 [55 S.Ct. 187, 79 L.Ed. 281]: "When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. . . . The principle that the State has a broad discretion in classification, in the exercise of its power of regulation, is constantly recognized by this Court." (People v. Western Fruit Growers, 22 Cal.2d 494, 506-508 [140 P.2d 13]; Western U. Tel. Co. v. Hopkins, 160 Cal. 106, 122 [116 P. 557]; Postal Tel. Cable Co. v. County of Los Angeles, 160 Cal. 129 [116 P. 566].) Whether the legislation is wise or unwise as a matter of policy is a question with which the courts are not concerned. (Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 447-448 [54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481].) . . .

Some of the factual considerations which the Legislature could have taken into consideration are disclosed by an examination of the sources of information on the biological and sociological phases of the problem and which may be said to form a background for the legislation and support the reasoning found in the decisions of the courts upholding similar statutes. A reference to a few of those sources of information will suffice.

On the biological phase there is authority for the conclusion that the crossing of the primary races leads gradually to retrogression and to eventual extinction of the resultant type unless it is fortified by reunion with the parent stock. (W. A. Dixon, M. D., Journal of American Medical Association, vol. 20, p. 1 (1893); Frederick L. Hoffman, statistician, Prudential Life Insurance Co. of America, American Economics Association, vol. 11 (1896) "Race Traits and Tendencies of the American Negro"; C. E. Woodruff, "The Expansion of Races" (1909).) . . .

W. E. Castle, Bussey Institution, Harvard University, in an article entitled "Biological and Social Consequences of Race Crossing," printed in volume 9, American Journal of Physical Anthropology (April, 1926), states on page 152: "If all inheritance of human traits were simple Mendelian inheritance, and natural selections were unlimited in its action among human populations, then unrestricted racial intercrossing might be recommended. But in the light of our present knowledge, few would recommend it. For, in the first place, much that is best in human existence is a matter of social inheritance, not of biological inheritance. Race crossings disturb social inheritance. That is one of its worst features." This then leads to a consideration of the sociological phase. [32 Cal.2d 759]

The writings of Father John La Farge, S. J., are typical of many who have considered the subject of race-crosses from a sociological standpoint. Reference has been made to his work "The Race Question and the Negro" (1943). Under the heading "The Moral Aspect," he writes: "[T]here are grave reasons against any general practice of intermarriage between the members of different racial groups. These reasons, where clearly verified, amount to a moral prohibition of such a practice.

"These arise from the great difference of condition which is usually experienced by the members of the respective groups. It is not merely a difference of poverty or riches, of lesser or greater political power, but the fact that identification with the given group is far-reaching and affects innumerable aspects of ordinary daily life. . . .

"Where marriage is contracted by entire solitaries, such an interracial tension is more easily borne, but few persons matrimonially inclined are solitaries. They bring with them into the orbit of married life their parents and brothers and sisters and uncles and aunts and the entire social circle in which they revolve. All of these are affected by the social tension, which in turn reacts upon the peace and unity of the marriage bond.

"When children enter the scene the difficulty is further complicated unless a complete and entirely self-sacrificing understanding has been reached beforehand. And even then the social effects may be beyond their control. . . .

"In point of facts as the Negro group becomes culturally advanced, there appears no corresponding tendency to seek intermarriage with other races."

The foregoing excerpts from scientific articles and legal authorities make it clear that there is not only some but a great deal of evidence to support the legislative determination (last made by our Legislature in 1933) that intermarriage between Negroes and white persons is incompatible with the general welfare and therefore a proper subject for regulation under the police power. There may be some who maintain that there does not exist adequate data on a sufficiently large scale to enable a decision to be made as to the effects of the original admixture of white and Negro blood. However, legislators are not required to wait upon the completion of scientific research to determine whether the underlying facts carry sufficient weight to more fully sustain the regulation. [32 Cal.2d 760] . . .

The contention is also advanced that the statute must fall before the equal protection clause of the Fourteenth Amendment because of lack of a sufficient showing of clear and present danger arising out of an emergency. . . . The underlying factors that constitute justification for laws against miscegenation closely parallel those which sustain the validity of prohibitions against incest and incestuous marriages (Pen. Code, § 285; Civ. Code, § 59; 42 C.J.S., Incest, § 1), and bigamy (Pen. Code, § 281; Civ. Code, § 61; Davis v. Beason, supra, 133 U.S. 333; Reynolds v. United States, supra, 98 U.S. 145). Moreover the argument based upon equal protection does not take into proper account the extensive control the state has always exercised over the marriage contract, nor of the further fact that at the very time the Constitution of the United States was being formulated miscegenation was considered inimical to the public good and was frowned upon by the colonies, and continued to be so regarded and prohibited in states having any substantial admixture of population at the time the Fourteenth Amendment was adopted. In view of this fact, and the unanimity of judicial decision sustaining such statutes, it seems impossible to believe that any constitutional guaranty was intended to prohibit this legislation.

It has been suggested that sections 60 and 69 of the Civil Code are unconstitutional because not sufficiently comprehensive. More specifically it is said that such legislation does not preclude the possibility of progeny as a result of purported marriages entered into by persons who have concealed or failed to disclose their racial origin, nor the possibility of illegitimate progeny of mixed matings or of issue from such racially mixed marriages validly contracted in other states by residents of this state. However it is definitely established that the states, in seeking a remedy, are not required to extend regulation to all cases which might possibly be reached. (Radice v. New York, supra, 264 U.S. 292.) . . . Nor is the Legislature prevented by the equal protection clause from confining "its restrictions to those classes of cases where the need is deemed to be clearest." (Miller v. Wilson, 236 U.S. 373, 384 [35 S.Ct. 342, 59 L.Ed. 628].) . . . The need for prohibiting all miscegeny, together with administrative impracticalities inherent in any such attempt, were proper matters for the Legislature to consider. And the fact, if it be a fact, that some people contract such marriages within this state illegally, or others contract such marriages validly outside the state and subsequently reside here, does not lend support to any contention of unconstitutionality of the statute.

Finally, it is argued that sections 60 and 69 are too vague and uncertain to constitute valid regulation in that they lack definitions of descriptive terms, such as mulatto, and are uncertain as to the mode of proof of race. After almost 100 years of continuous operation of the present and preexisting similar laws, the claimed obstacles to the application of the statute are more theoretical than real. In any event the contention is not a matter for consideration in this proceeding. In the application for a marriage license the petitioner Perez states that she is a white person and the petitioner Davis states that he is a Negro. The petition for the writ contains allegations of the same facts. There is therefore no indefiniteness in the code sections that can avail the petitioners; nor is there here any problem of proof. It is the well-established rule that a charge of unconstitutionality can be raised only in a case where that issue is involved in the determination of the action, and then only by the person or a member of the class of persons adversely affected. (American Fruit Growers v. Parker, 22 Cal.2d 513 [140 P.2d 23]; In re Willing, 12 Cal.2d 591, 597 [86 P.2d 663]; Max Factor & Co. v. Kunsman, 5 Cal.2d 446 [55 P.2d 177]; People v. Globe Grain & Mill. Co., 211 Cal. 121 [294 P. 3]; A. F. Estabrook Co. v. Industrial Acc. Com., 177 Cal. 767 [177 P. 848]; Estate of Monks, supra, 48 Cal.App.2d 603, 610-612, involving the miscegenation law of Arizona–see also Kirby v. Kirby, supra, 24 Ariz. 9 [206 P. 405]; and State v. Pass, supra, 59 Ariz. 16 [121 P.2d 882]–Jackson v. City and County of Denver, supra, 109 Colo. 196 [124 P.2d 240], involving a miscegenation statute of that state.) Here there is no possible uncertainty in the statute as applied to the petitioners.

The alternative writ should be discharged and the peremptory writ denied.

Schauer, J., and Spence, J., concurred.

Respondent's petition for a rehearing was denied October 28, 1948. Shenk, J., Schauer, J., and Spence, J., voted for a rehearing.