Strict Caution on Miscegenation

The door was wide open. When it ruled on the case of McLaughlin v. Florida, the Supreme Court could easily have ruled on the constitutionality of all miscegenation laws in the 19 states where they still exist. But strictly speaking, Connie Hoffman, who is a white woman, and Dewey McLaughlin, who is a Honduran hotel worker, had been convicted of only one form of miscegenation. They had violated a Florida law forbidding an unmarried couple of different races to "habitually live in and occupy in the nighttime the same room." And the court, so often decried as a ruthless uprooter of social customs, likes to speak strictly and cautiously on issues of sex and morality. It voided the Florida ban on interracial cohabitation, but it postponed the larger issue.

Race & Policy. Arrested in Miami in 1962, sentenced to 30 days in jail and fined $150, Dewey and Connie appealed to the Florida Supreme Court. The trial judge, they pointed out, had specifically denied them the defense of common-law marriage, which Florida recognizes when contracted between persons of the same race. The judge did so on the grounds that Florida bans interracial marriage. The defendants argued that that law was unconstitutional, but the state's highest court, citing an 1883 Supreme Court decision upholding an Alabama law against interracial sexual relations (Pace v. Alabama), affirmed their conviction.

In the Pace case, the mere fact that white and Negro defendants received equal punishments was enough to convince the Supreme Court that Alabama had not violated the equal-protection clause of the 14th Amendment. But today's desegregation decisions have "swept away" Pace's idea of "equality," said Justice Byron White, speaking for the present court. They have made all racial classification by state laws "constitutionally suspect." To stand, the classification must now be totally reasonable. Race cannot be a relevant factor unless it is necessary to "the accomplishment of a permissible state policy." A state does have almost unlimited power to proscribe sexual offenses, said White. But Florida cannot be allowed to ban cohabitation between unmarried persons of different races--while permitting it between those of the same race.

Future Decision. Justice White's opinion left intact, for now, "what is claimed to be a valid ban on interracial marriage." Though concurring, Justice Potter Stewart sharply protested what he called the court's implication that such a law might be valid if the state could show "some overriding statutory purpose." Said Stewart: "I think it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend on the race of the actor." Although the majority stuck to the limits of the specific case before it, it seems likely that Stewart's views will be the court's when it finally faces up to the constitutionality of laws affecting interracial marriage.

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