Marriage by Choice

Racial intermarriage is potentially the most combustible of all civil rights issues. Although marriage between whites and Negroes is actually rare in the U.S.--at least officially--miscegenation by cohabitation is another matter, rooted largely in the South's unspoken mores. According to one study by University of Wisconsin Sociologist Robert Stuckert, 21% of white Americans are "descendants of persons of African origin." By the calculation of Anthropologist Melville Herskovitz, 72% of U.S. Negroes have white ancestors.

The interracial statistics have piled up despite the fact that miscegenation under any circumstances at all is a crime in 19 states--including not only 17 Southern and Border states but also the Northern states of Indiana and Wyoming. Quite apart from local fears and customs even at this stage of the civil rights revolution, are such laws constitutional?

New Concept. Last week the Supreme Court took a giant step toward resolving the question by agreeing to review its first miscegenation case since 1883, when it upheld an Alabama law against interracial sexual relations (Pace v. Alabama). Now at issue is a Florida law that forbids a man and woman who are not married to each other and are of different races to "habitually live in and occupy in the nighttime the same room."

Connie Hoffman, a white woman, and Dewey McLaughlin, a Spanish-speaking merchant seaman of Honduran origin, were convicted under this law in Miami Beach in 1962. Each was sentenced to 30 days in jail and a $150 fine. The defendants appealed to the Florida Supreme Court and were turned down in light of what Justice Millard Caldwell called "the sound rule of stare decisis" (following precedents) and "the well-written decision" of Pace. Let the U.S. Supreme Court decide, added Caldwell caustically, "if the newfound concept of 'social justice' has outdated 'the law of the land' as therein announced."

Frail Standard. To just that end, the N.A.A.C.P. argued in Washington that Defendants Hoffman and McLaughlin (who are still living together) were deprived of the 14th Amendment's guarantees of due process and equal protection of the laws. Florida does not ban cohabitation by unmarried persons of the same race, for example, and the defendants were unable to plead common-law marriage because Florida forbids intermarriage under another law, which the N.A.A.C.P. also wants struck down. Moreover, Florida's definition of Negro ("every person having one-eighth or more of African or Negro b'ood") is so vague that police merely identified McLaughlin as a Negro by "appearance," a frail standard on which to build a case.

How much the ruling in McLaughlin and Hoffman v. Florida will affect other state miscegenation laws will not be known until the court hands down its decision next fall. But the tide seems to be running against the old Southern custom. In 1948, the California State Supreme Court ruled California's miscegenation law unconstitutional under the 14th Amendment. Antimiscegenation laws have since been repealed in other states; in Nebraska one was wiped off the books only last year. Goal of the N.A.A.C.P. in this case: "Freedom to join in marriage with the person of one's own choice."

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