Today in 1948: California Supreme Court voids interracial marriage ban

October 1, 2010

Today in Legal HistoryForty of the 50 states have enacted anti-miscegenation laws at some point in their history, and after World War II, 38 states still had such laws on their books.

On this day in 1948, the California Supreme Court ruled that anti-miscegenation laws violate the Fourteenth Amendment of the Constitution – a full 19 years before the U.S. Supreme Court would reach the same conclusion in Loving v. Virginia, the case that invalidated all such laws nationwide.

The California case, Perez v. Lippold (commonly referred to as Perez v. Sharp), involved a Mexican-American woman and a black man, Andrea Perez and Sylvester Davis. On their marriage license application, Perez listed her race as “white,” and Davis identified himself as “Negro.” The Los Angeles County clerk turned down the application, citing a section of the California Civil Code dating from 1850: “… [N]o license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.”

After being turned away, Perez petitioned the California Supreme Court for a writ of mandamus to compel the county clerk to issue a marriage license.

wedding ringsWriting for the 4-3 majority, Associate Justice Roger J. Traynor boldly asserted that marriage was a fundamental right that could not be denied on the basis of race alone. “A member of any of these races may find himself barred from marrying the person of his choice, and that person to him may be irreplaceable,” he wrote. “Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.”

The majority opinion was out of step with popular opinion at the time. In fact, a Gallup poll in 1958 found that 96 percent of white Americans continued to disapprove of interracial marriages. Nevertheless, 14 of the remaining 37 states with anti-miscegenation laws followed California’s lead and repealed their laws between 1948’s Perez and 1967’s Loving, a decision that drew from the California case.

More recently, another California Supreme Court case was influenced by Perez – 2008’s In re Marriage Cases, the case that invalidated portions of a California law restricting same-sex marriages (and in turn was negated by Proposition 8, which is now being debated in the federal courts).

A few interesting facts about anti-miscegenation laws:

  • The word “miscegenation,” a mashup of the Latin “miscere” (to mingle) and “genus” (category), is a purely American invention. The term was coined during the Civil War and appeared in a political pamphlet aimed at discrediting Abraham Lincoln and the Republicans.
  • Maryland was the first state to enact an anti-miscegenation law – In 1664.
  • When the Declaration of Independence was signed in 1776, 7 of the 13 colonies actively banned interracial marriages. Pennsylvania was the first to repeal its anti-miscegenation law, in 1780.
  • Even after Loving prevented states from enforcing anti-miscegenation laws, such laws technically remained on the books in some states. The last remaining state-law ban on interracial marriages was a provision in the Alabama constitution, which was repealed by referendum in 2000.

» Read Perez v. Lippold (32 Cal.2d 711) on Westlaw (sign-on required)

» Read In re Marriage Cases (43 Cal.4th 757) on Westlaw (sign-on required)