Date of Hearing: June 4, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:ACR 202

Author:(McCarty) – As Introduced Ver:May 15, 2024

Proposed Consent (As Proposed to be Amended)

SUBJECT: Loving Day

KEY ISSUE: SHOULD THE ASSEMBLY DESIGNATE JUNE 12, 2024, AS “LOVING DAY” TO COMMEMORATE THE 1967 LANDMARK U.S. SUPREME COURT DECISION LOVING V. VIRGINIA, WHICH INVALIDATED ALL REMAINING STATE LAWS PROHIBITING INTERRACIAL MARRIAGE?

SYNOPSIS

This resolution declares June 12, 2024, as “Loving Day” in order to commemorate the U.S. Supreme Court’s 1967 decision in Loving v. Virginia, a landmark civil rights decision that invalidated state law bans on interracial marriage. The original idea for Loving Day reportedly came from Ken Tanabe, himself the product of an interracial marriage, who in 2004 launched Loving Day as part of his senior thesis at the New School for Design. Although the first Loving Day occurred in New York City in 2004, several other cities and communities across the nation now acknowledge the day with public celebrations. This resolution – virtually identical to a series of resolutions adopted by the Assembly since 2017— adds California’s voice to the chorus of appreciation. The resolution also aptly highlights Perez v. Sharp, the 1948 California Supreme Court decision striking down California’s ban on interracial marriage, nearly twenty years before the celebrated decision by the U.S. Supreme Court. The significance of these decisions goes beyond the issue of interracial marriage. Later courts prominently cited both decisions when establishing marriage equality for same-sex couples, reasoning that all persons have a fundamental right – as part of the “liberty” protected by the due process clause of the 14th Amendment – to marry the person of their choice. There is no opposition to this celebratory measure. The resolution will be amended to correct a technical calculation error.

SUMMARY: Designates Saturday, June 12, 2024, as “Loving Day” in commemoration of the U.S. Supreme Court’s decision invalidating bans on interracial marriage. Specifically, this bill:

Makes the following declarations:
1. Mildred and Richard Loving were an interracial couple who were married in Washington, D.C., in 1958, but banned from their home state of Virginia, where interracial marriage was illegal at the time.
2. The Lovings eventually challenged this ruling; their case, with the support of the American Civil Liberties Union, went through many levels of the justice system before the United States Supreme Court unanimously decided the case in the Loving’s favor in 1967.
3. At the time of the Loving decision, 16 states had laws banning interracial couples and the Loving decision made it illegal for these states to enforce those laws.
4. Loving Day, started in 2004, has garnered support from thousands of people domestically and internationally. Loving Day celebrations aim to create a common connection between multicultural communities, groups, and individuals and Loving Day’s mission is to fight racial prejudice, promote tolerance, awareness, and understanding through education, and foster supportive multicultural communities.
5. Loving Day seeks to commemorate and celebrate the United States Supreme Court’s 1967 ruling, keeping its importance fresh in the minds of a generation that has grown up with interracial relationships being legal, as well as explore issues facing couples currently in interracial relationships.
6. California has led the marriage equality movement by striking down laws prohibiting marriage between interracial couples [Perez v. Sharp (1948) 32 Cal.2d 711], thereby becoming the first state in the 20^th century to strike down an anti-miscegenation law.
7. The California State Assembly has a history of supporting movements and legislation that celebrate the diversity and equality of all persons.
8. We are now moving forward in the 21st century as a multiracial and multicultural society and realize we must find a common vision from our interwoven past to build a society free of racism for the benefit of our collective future.
Resolves, in light of the above, that Wednesday, June 12, 2024, be observed as the official commemoration of the landmark Supreme Court decision, Loving v. Virginia (1967) 388 U.S. 1, which legalized interracial marriage in the United States and celebrated as Loving Day.

EXISTING LAW prohibits a state from denying any person life, liberty, or property without due process of law or denying any person equal protection of the laws. (United States Constitution, Amendment XIV.)

FISCAL EFFECT: As currently in print this resolution is keyed non-fiscal.

COMMENTS: According to the author, “Loving Day recognizes two major events in this nation’s history. First, this resolution will recognize California’s history of leading the equality movement. California became one of the first states in the United States to prohibit anti-miscegenation laws. Second, this resolution will commemorate . . . ‘Loving Day,’ a celebration of the United States Supreme Court 1967 ruling that banned states from enforcing state anti-miscegenation laws. Loving Day’s promotes tolerance, fosters supportive multicultural communities, and fights racial prejudice.”

From Loving v. Virginia to “Loving Day.” This resolution – virtually identical to resolutions adopted by the Assembly annually since 2017 – adds California’s voice to those of several other jurisdictions and private entities recognizing every June 12 as “Loving Day,” in honor of the U.S. Supreme Court’s 1967 landmark decision in Loving v. Virginia (1967) 388 U.S. 1, which unanimously invalidated the remaining state laws banning interracial marriages. The original idea for Loving Day reportedly came from Ken Tanabe, himself the product of an interracial marriage, who in 2004 launched Loving Day as part of his senior thesis at the New School for Design. Although the first Loving Day was in New York City in 2004, several other cities and communities across the nation now acknowledge the day with public celebrations.

Background: A Love Story. In June of 1958, Mildred Jeter, an African-American woman, and Richard Loving, a white man, were married in the District of Columbia because their home state of Virginia made it unlawful for a “white person in this State to marry any save a white person.” The Virginia law also provided that “if any white person intermarry with a colored person, or any colored person intermarry, he [sic] shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one or more than five years.” (Loving v. Virginia (1967) 388 U.S. 1, 4, quoting Va. Code Ann. Section 20-59.) A related Virginia statute made it a crime to evade the law by marrying out-of-state with the intention of returning to Virginia to cohabit as husband and wife. When the Lovings returned to Virginia, local authorities charged them with violating the law.

On January 6, 1959, the Lovings pleaded guilty and were each sentenced to one year in jail. However, the trial judge agreed to suspend the sentence if the Lovings agreed to move out of the state and not return to Virginia for twenty-five years. Making his views of the matter clear, the trial court judge stated:

Almighty God created the races white, black, yellow, Malay and red, and placed them on separate continents. And but for the interference with this arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.

The trial court’s God apparently failed to anticipate the fact of human migration between continents; and more to the point, the judge failed to appreciate the love and resolve of the Lovings. The couple initially complied with the order and moved to the District of Columbia, but after a few years decided to return to their home state. With the help of the ACLU, on November 6, 1963, the Lovings filed a motion in the trial court to vacate the earlier conviction, arguing that the Virginia statute violated the Fourteenth Amendment of the U.S. Constitution. When the trial court (more than one year later) rejected their motion, the Lovings appealed to the Virginia Supreme Court, which upheld the statute (and the convictions) as a valid regulation of marriage under state’s police power; however, the court overturned the judge’s order banishing the couple from the state, as it went beyond the penalty prescribed by the statute. (Loving v. Commonwealth (1966) 206 Va. 147.) Undeterred, the Lovings appealed to the U.S. Supreme Court.

When the case reached the U.S. Supreme Court, the state of Virginia argued that the statute did not violate the equal protection clause of the Fourteenth Amendment because the prohibition on interracial marriage necessarily applied to both whites and African Americans, and both parties to the marriage received the same punishment. However, the Court unequivocally rejected “the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classification from the Fourteenth Amendment’s proscription of all invidious racial discriminations.” (Loving v. Virginia, supra, at pp. 8-9.) In short, the Fourteenth Amendment does not simply prohibit racial discrimination against particular racial groups; rather, it makes the use of any racial classification suspect and subject to heightened scrutiny.

Moreover, the Court observed, even if the statute was formally equal in its application, it was not equal in its creation. Such laws were rooted in notions of white supremacy and imposed upon disenfranchised African Americans by whites for the express purpose of maintaining the “purity” of white “blood.” One did not need to look very far into the legislative history of the statute to reach this conclusion, for the statute’s title announced its purpose. While anti-miscegenation laws (prohibiting sexual relations and cohabitation, not just marriage) had existed in Virginia since the late 17th century, the statute at issue in Loving was of more recent vintage – a 1924 eugenics-era statute entitled, “An Act to Preserve Racial Integrity.” The Court observed in a footnote that the “integrity” in the title only applied “to the integrity of the white race,” for “while [the Act] prohibits whites from marrying any nonwhite . . . any other racial class may intermarry without statutory interference.” (Id. at pp. 4-7.) The Court concluded that the Virginia statute rested upon distinctions based solely upon race and found “no legitimate overriding purpose independent of [the] invidious racial discrimination [that] justifies this classification.” (Id. at pp. 11-12.)

In addition to finding that the Virginia statute violated the equal protection clause, the Court also found that the right to marry was a “fundamental right,” and as such, the statute infringed upon the “liberty” interest protected by the due process clause of the Fourteenth Amendment. According to the Court, the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness. . . To deny this fundamental freedom on so unsupportable a basis as racial classifications embodied in these statutes, classifications so directly subversive to the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that freedom of choice to marry not be restricted by invidious racial distinctions.” (Id. at p. 12.)

While the importance of the Loving decision cannot be overstated, the nation had already been moving, however haltingly, toward the Court’s position. When the Court issued its decision, sixteen states, including Virginia, still banned interracial marriage. In the fifteen years prior to the Loving decision, fourteen states (mostly in the West) repealed their laws.

California’s Contribution: Perez v. Sharp. While many people associate anti-miscegenation laws with the South, they were by no means restricted to that part of the country. In 1948, California Civil Code Section 60 still declared that all “marriages between white persons with negroes, Mongolians, members of the Malay race, and mulattoes are illegal and void.” Section 69 provided that “no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian, or member of the Malay race.” The original 1872 version of this statute only barred marriages between a white person and a “Negro or mulatto,” but in 1901 the statute was amended to add “Mongolians” (Asians) and in 1933 to add the “Malay race,” an uncertain term which at the time primarily referred to Indonesians and Filipinos. While these laws generated little or no controversy at the time, the political and social changes initiated by World War II marked an important shift in both California’s and the nation’s thinking about race relations, setting the stage for challenges to race-based discrimination.

In 1947, Andrea Perez, the daughter of Mexican-American immigrants, and Sylvester Davis, an African-American veteran of World War II, sought a marriage license from the Los Angeles County Clerk. Although Mexican-Americans faced discrimination in California in the form of public school segregation and exclusion from public swimming pools, state and federal law deemed Mexican-Americans “white” for most purposes and, most important, the Los Angeles County Clerk deemed Mexican-Americans as “white” when issuing marriage licenses. As such, the marriage between Perez and Davis violated California law and the clerk denied their request for a license. (On the factual and historical background of Perez v. Sharp, see Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, Oxford U. Press, 2009, chapters 7-8.) Perez and Davis originally challenged the state statute as a violation of their freedom of religion, because as Catholics they could not consummate their love without marriage. It is not clear why Perez and Davis chose this approach instead of challenging the law on Fourteenth Amendment grounds. However, historian Peggy Pascoe points out that their lawyer, Dan Marshall, had recently joined other ACLU lawyers in challenging the California’s “Alien Land Act,” which prohibited “aliens ineligible for citizenship” (Asians) from owning or renting land in California. Just a few months before Marshall took on the Perez case, the U.S. Supreme Court upheld the Alien Land Act, holding that the state only needed to show a “rational basis” for the racial classification because the statute did not implicate fundamental civil liberties, such as the freedoms of press, speech, and religion in the First Amendment. In light of this experience, Marshall may have thought a First Amendment “free exercise” claim would stand a better chance than a Fourteenth Amendment due process or equal protection claim. (Id. at p. 212, citing People v Oyama (1946) 29 Cal 2d 164, 177.)

California Chief Justice Roger Traynor’s majority opinion bypassed the First Amendment challenge and instead found that California’s ban on interracial marriage violated both the due process and equal protection clauses of the Fourteenth Amendment and, for good measure, added that the statutes’ terminology of “race” was “too vague and uncertain to be enforceable against a fundamental right.” (Perez v. Sharp (1948) 32 Cal 2d 711, 731-732.) Noting that the U.S. Supreme Court had already held, in the 19th century polygamy cases, that religious freedom did not prevent a state from regulating marriage, Traynor turned to the Fourteenth Amendment. First, Traynor argued that the due process clause protects an area of “personal liberty” that encompassed not merely physical freedom but the right to engage in certain “fundamental rights,” including the right to marry. (Id. at p. 714, citing Meyer v. Nebraska (1923) 262 U.S. 390, 399.) Traynor also cited the 1942 U.S. Supreme Court decision striking down a criminal sterilization law, reasoning that it violated “one of the basic civil rights of man” because “marriage and procreation are fundamental to the very existence and survival of the race.” (Id. at pp. 714-715, quoting Skinner v. Oklahoma (1942) 316 U.S. 535, 541.) Traynor concluded that legislation infringing such rights “must be based upon more than prejudice and must be free of oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.” (Id. at p. 715.)

Traynor also rejected the Los Angeles County Clerk’s argument that the law did not violate the equal protection clause, either because it applied equally to all races or because it was a reasonable classification in pursuit of a legitimate legislative objective. As to the claim that such laws did not discriminate if they applied to all races, Traynor wrote that 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.” In short, that the law prohibiting both the white and the Black person from marrying each did not matter; what mattered, according to Traynor, was that individuals were restricted from marrying persons of their choice for no other reason than race. As to whether the classification related to a “legitimate” state interest, Traynor noted that race restrictions must be “viewed with great suspicion” because the Fourteenth Amendment was adopted for the express purpose of eliminating racial discrimination under law. Although Traynor did not use the more modern language of “strict scrutiny” and “compelling state interests,” he effectively used that test by citing the Japanese internment cases for the proposition that racial distinctions could only be justified by “exceptional circumstances,” such as one might find in wartime emergency. Examining the legislative history of the marriage law, Traynor found no such exceptional circumstances. The defendant tried to demonstrate the need for such a law by citing studies purporting to show that racial mixing resulted in “inferior” offspring more susceptible to various diseases. Traynor responded that, if this was the reason, it was irrational because it only prohibited white persons from marrying other races, while it permitted the mixing of “Negroes, Mongolians, mulattoes, and Malays.” (Id. at pp. 721-722.)

Perhaps the most interesting aspect of Traynor’s decision were his arguments about the “vagueness” of the statutes terminology and the uncertainties surrounding the very meaning of “race.” In doing so, he drew from the works of early 20th century anthropologists who were questioning the scientific basis of the entire concept of “race,” anticipating what today is referred to as the “social construction of race.” Traynor noted that the statute relied upon Johann Blumenbach’s outdated early-19th century classification of Negroid, Mongoloid, and Caucasoid races, to which he later added “Malayan.” Even if we were to accept these categories, “generalizations based on race are untrustworthy in view of the great variations among members of the same race.” As to the defendant’s racist claims that other races were “mentally inferior” to whites, Traynor noted that social and physical scientists in “the past two decades” had found no correlation between race and intelligence. Finally, Traynor pointed to the vagueness of the racial categories as creating a problem of enforcement. The law did not say, for example, what proportion of a particular ancestry made a person a member of a particular race. The statute apparently left it to the arbitrary assessment of the public official granting the license to determine an applicant’s race based on nothing more than the official’s impression. Traynor concluded:

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 clause of the United States Constitution by impairing the right of individuals to marry on the basis of race alone and by arbitrarily and unreasonably discriminating against certain racial groups. (Id. at pp. 731-732.)

The Legacy of Perez and Loving. While Perez provided a precedent for Loving, both decisions figured prominently in the legal struggle for same-sex marriage equality. The impact was first obvious when, in 1993, the Hawaii Supreme Court ruled that denying same-sex couples the right to marry violated the equal protection clause of the Hawaii state constitution. As historian Peggy Pascoe put it, the Hawaii decision was “shot through with references to Loving v. Virginia.” In particular, the Hawaii Supreme Court rejected the state’s claim that its law “treats everyone alike because it applies equally to both sexes.” The Hawaii court noted that the decision in Loving rejected Virginia’s argument that its anti-miscegenation law did not violate the equal protection clause because it applied equally to both races. A decade later, in 2003, when the Massachusetts high court gave same-sex couples the legal right to marry, it wrote: “As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry to the person of one’s choice.” Moreover, the court added, “a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance – the institution of marriage – because of a single trait: skin color in Perez and Loving, sexual orientation here.” (Quoted in Pascoe, supra, at p. 300.)

When the California Supreme Court struck down California’s statute restricting marriage to a “man and woman,” the Court relied heavily on Perez and its reasoning that the fundamental right of marriage was an individual right to marry the person of one’s choice. (In re Marriage Cases (2008) 43 Cal. 4th 757.) The California Supreme Court decision experienced a temporary setback because of Proposition 8. However, when the U.S. Supreme Court issued the final word on the subject in Obergefell v. Hodges (2015) 135 S. Ct. 1039, it too expressly cited Perez and Loving for the proposition that the individual right to marry the person of one’s choice could not be denied because of race, gender, or sexual orientation. This resolution commemorates this sensible and, one would hope, noncontroversial proposition.

Technical Amendment. On page 2, line 13 change “61” to “76.”

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Tom Clark / JUD. / (916) 319-2334

ACR 202: Loving Day.

Current Status:

Assembly Floor

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