‘‘Miscegenation’’ or ‘‘antimiscegenation’’ laws prohibit marriages between persons of different races. More than a decade before the U.S. Supreme Court held them unconstitutional in Loving v. Virginia (1967), the Court confronted a challenge to Virginia’s antimiscegenation law in Naim v. Naim (Va. 1955), vacated and remanded (1955), affirmed (Va. 1956) (per curiam), and appeal dismissed (1956) (per curiam).
Naim arose because the laws of the Commonwealth of Virginia made it unlawful for white persons to marry nonwhite persons. Therefore, to get married, Ruby Elaine, a woman described as white, and Han Say, a man described as Chinese, traveled from Virginia to North Carolina, which had no such law. Some time after the Naims returned to Norfolk, Virginia to live as husband and wife, Ruby Naim decided she wanted out of her marriage to Han Naim. Rather than file for divorce, Ruby sued in Virginia state court to have her marriage to Han annulled on the grounds that their races rendered them ineligible to marry in the first place.
Han defended on the ground that Virginia’s miscegenation law violated the due process clause and equal protection clause of the U.S. Constitution and so could not be relied upon in the annulment suit. The Virginia courts rejected his argument, instead concluding that the Tenth Amendment to the Constitution reserves to the states the authority to regulate marriage. In its first judgment in Naim, the Virginia Supreme Court of Appeals relied on an almost unbroken string of lower court cases upholding antimiscegenation laws, including the 1883 U.S. Supreme Court decision in Pace v. Alabama, which rejected an equal protection challenge to a state law punishing interracial fornication and adultery more harshly than intraracial fornication and adultery; and dicta in Supreme Court cases on racial segregation such as Plessy v. Ferguson (1996). Noting that more than half the states prohibited interracial marriage, the Virginia Court concluded that nothing in the Constitution
denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship.
Han then appealed to the U.S. Supreme Court, which had mandatory jurisdiction over the suit. (Later in the twentieth century, Congress provided that the Supreme Court had discretion to choose whether to hear almost all appeals.) The case came before the Court in November 1955, less than a year and a half after the Supreme Court’s decision in Brown v. Board of Education (1954). Unless the Court were to dismiss the appeal as not presenting a substantial federal question, it would have to decide the highly volatile issue of the constitutionality of antimiscegenation laws. This was at a time when its desegregation decisions were still subject to ‘‘massive resistance’’ throughout the South, and many segregationists were rallying opposition to school integration on the ground that it would lead to interracial relationships and ‘‘race mixing’’ or ‘‘amalgamation.’’
Several justices were inclined to hear the Naim case on the merits. Yet when they met in private to discuss it, Justice Frankfurter exhorted the Court not to take the case. Recognizing the straightforward legal argument supporting the assertion of jurisdiction, his prepared statement argued that it was outweighed by ‘‘moral considerations ...., those raised by the bearing of adjudicating this question to the Court’s responsibility in not thwarting or seriously handicapping the enforcement of its decision in the segregation cases.’’ Frankfurter believed that the Court’s rendering a decision on the merits would ‘‘very seriously embarrass the carrying-out of the Court’s decree’’ in Brown and its companion cases. Justice Clark was persuaded and, with Frankfurter’s input, drafted an opinion asserting that a supposed lack of clarity of the record about the Naims’ citizenship precluded the Court from addressing the issue ‘‘‘in clean-cut and concrete form.’’’ The opinion, ultimately issued per curiam without dissent after Chief Justice Earl Warren abandoned his planned dissent, went on to vacate the judgment of the Virginia Supreme Court of Appeals and remanded the case so that court could send it back to the trial court ‘‘for action not inconsistent with this opinion.’’
The Supreme Court’s legal extemporizing was arcane but unsatisfactory, both to academic critics and to the Virginia Supreme Court of Appeals. The latter insisted that the record was indeed adequate for resolving the constitutional issues presented, noted there was nothing in state law authorizing reexamination by the trial court, and reaffirmed its judgment. When Naim then returned to Supreme Court, requesting either modification of its earlier mandate or scheduling of his case for full argument, the Court dismissed the appeal. Its short per curiam order claimed fairly disingenuously that the Virginia Supreme Court of Appeals’ second decision left the case without ‘‘a properly presented federal question.’’
Naim v. Naim thus deferred Supreme Court consideration of the constitutionality of antimiscegenation laws until Loving v. Virginia. In the intervening twelve years, the number of states with such laws dropped from twenty-nine to sixteen, signaling to the Court that it would not be thwarting a national majority if it invalidated antimiscegenation laws. The president and Congress had weighed in against racial segregation in a variety of contexts, signaling that the Court would not stand alone among the branches of the federal government. The Court did not feel as under threat in 1967 as it did the year after Brown. Even world opinion in the form of a U.N. Educational, Scientific and Cultural Organization (UNESCO) report had strongly condemned racism, and the Court noted this at oral argument in Loving. Naim thus stands today only as a testament to the power of prudential concerns in Supreme Court decision making and to the rather limited extent to which the Court has historically led the country rather than followed it in the face of true majoritarian opposition.
DAVID B. CRUZ
References and Further Reading
Cases and Statutes Cited
See also Brown v. Board of Education, 347 U.S. 483 (1954); Due Process; Equal Protection of Law (XIV); Loving v. Virginia, 388 U.S. 1 (1967)