ANDREA D. PEREZ et al., Petitioners, v. W. G. SHARP, as County Clerk, etc., Respondent, 32 Cal. 2d 711

TRAYNOR, J. In this proceeding in mandamus, petitioners seek to compel the County Clerk of Los Angeles County to issue them a certificate of registry (Civ. Code, § 69a) and a license to marry. (Civ. Code, § 69.) In the application for a license, petitioner Andrea Perez states that she is a white person and petitioner Sylvester Davis that he is a Negro. Respondent refuses to issue the certificate and license, invoking Civil Code,

section 69, which provides: “. . . no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.” Civil Code,

section 69, implements Civil Code,

section 60, which provides: “All marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes are illegal and.void.” This

section originally appeared in the Civil Code in 1872, but at that time it prohibited marriages only between white persons and Negroes or mulattoes. It succeeded a statute prohibiting such marriages and authorizing the imposition of certain criminal penalties upon persons contracting or solemnizing them. (Stats. 1850, eh. 140, p. 424.) Since 1872, Civil Code,

section 60, has been twice amended, first to prohibit marriages between white persons and Mongolians (Stats. 1901, p. 335) and subsequently to prohibit marriages between white persons and members of the Malay race. (Stats. 1933, p. 561.) Petitioners contend that the statutes in question are unconstitutional on the grounds that they prohibit the free exercise of their religion and deny to them the right to participate fully in the sacraments of that religion. They are members of the Roman Catholic Church.

They maintain that since the church has no rule forbidding marriages between Negroes and Caucasians, they are entitled to receive the sacrament of matrimony. The provision of the First Amendment to the Constitution of the United States that Congress shall make no law “respecting an establishment of religion, or prohibiting the free exercise thereof” is encompassed in the concept of liberty in the Fourteenth Amendment. State legislatures are therefore no more competent than Congress to enact such a law. (Cantwell v.

Connecticut, 310 U.S. 296, 303 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].) They may, however, regulate conduct for the protection of society, and insofar as their regulations are directed towards a proper end and are not unreasonably discriminatory, they may indirectly affect religious activity without infringing the constitutional guarantee.' Although freedom of conscience and the freedom to believe are absolute, the freedom to act is not. (Cantwell v. Connecticut, supra, at pp. 303-304.) The regulation of marriage is considered a proper function of the state.

It is well settled that a legislature may declare monogamy to be the “law of social life under its dominion,” even though such a law might inhibit the free exercise of certain religious practices. (Reynolds v. United States, 98 U.S. 145, 166 [25 L.Ed. 244]; Davis v. Beason, 133 U.S. 333, 343 [10 S.Ct. 299, 33 L.Ed. 637].) If the miscegenation law under attack in the present proceeding is directed at a social evil and employs a reasonable means to prevent that evil, it is valid regardless of its incidental effect upon the conduct of particular religious groups.

If, on the other hand, the law is discriminatory and irrational, it unconstitutionally restricts not only religious liberty but the liberty to marry as well. The due process clause of the Fourteenth Amendment protects an area of personal liberty not yet wholly delimited. “While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated.

Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” (Italics added; Meyer v.

Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 67 L.Ed. 1042].) Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means. No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary.

The state’s interest in public education, for example, does not empower the Legislature to compel school children to receive instruction from public teachers only, for it would thereby take away the right of parents to “direct the upbringing and education of children under their control.” (Pierce v.

Society of Sisters, 268 U.S. 510, 534-535 [45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468].) Again, the state’s vital concern in the prevention of crime and the mental health of its citizens does not empower the Legislature to deprive “individuals of a right which is basic to the perpetuation of a race—the right to have offspring” by authorizing the sterilization of criminals upon an arbitrary basis of classification and without a fair hearing. (Skinner v.

Oklahoma, 316 U.S. 535, 536 [62 S.Ct. 1110, 86 L.Ed. 1655].) The right to marry is as fundamental as the right to send one’s child to a particular school or the right to have offspring. Indeed, “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.” (Skinner v.

Oklahoma, supra, at p. 541.) Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws. I Since the right to marry is the right to join in marriage with the person of one’s choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry.

It must therefore be determined whether the state can restrict that right on the basis of race alone without violating the equal protection of the laws clause of the United States Constitution. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]; Yu Cong Eng v.

Trinidad, 271 U.S. 500 [46 S.Ct. 619, 70 L.Ed. 1059]; Hill v. Texas, 316 U.S. 400 [62 S.Ct. 1159, 86 L.Ed. 1559].” (Hirabayashi v.

United States, 320 U.S. 81, 100 [63 S.Ct. 1375, 87 L.Ed. 1774].) In the Hirabayashi case the United States Supreme Court held that despite the fact that under the Constitution of the United States “racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others. . . .

The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant. . . .

The fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular association with Japan.” (320 U.S. 81, 100-101.) Whether or not a state could base similar measures on the peril caused by a national emergency in the face of the equal protection of the laws clause of the United States Constitution, which does not apply to the federal government, it clearly could not make such a distinction based on ancestry in the absence of an emergency.

A state law prohibiting members of one race from marrying members of another race is not designed to meet a clear and present peril arising out of an emergency. In the absence of an emergency the state clearly cannot base a law impairing fundamental rights of individuals on general assumptions as to traits of racial groups. It has been said that a statute such as

section 60 does not discriminate against any racial group, since it applies alike to all persons whether Caucasian, Negro, or members of any other race. (In re Estate of Paquet, 101 Ore. 393, 399 [200 P. 911].) 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. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals. (State of Missouri ex rel. Gaines v.

Canada, 305 U.S. 337, 351 [59 S.Ct. 232, 83 L.Ed. 208]; McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235 U.S. 151, 161-162 [35 S.Ct. 69, 59 L.Ed. 169].) In construing the equal protection of the laws clause of the Constitution, the United States Supreme Court has declared that the constitutionality of state action must be tested according to whether the rights of an individual are restricted because of his race. Thus, in holding invalid state enforcement of covenants restricting the occupation of real property on grounds of race, the Supreme Court of the United States declared: “The rights created by the first

section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” (Shelley v.

Kraemer, 334 U.S. 1 [68 S.Ct. 836, 846, 92 L.Ed. -].) In an earlier case, where a Negro contended that the state’s failure to give him equal facilities with others to study law within the state impaired his constitutional rights under the equal protection clause, the court rejected any consideration of the difference of the demand for legal education among white persons and Negroes, stating: “Petitioner’s right was a personal one.

It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity.” (State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 351 [59 S.Ct. 232, 83 L.Ed. 208]; Sipuel v.

Board of Regents, 332 U.S. 631 [68 S.Ct. 299, 92 L.Ed. -].) Similarly, with regard to the furnishing of sleeping, dining, and chair car facilities on trains, the Supreme Court of the United States has held that even though there was less demand for such facilities among Negroes than among whites, the right of a member of the Negro race to substantially equal facilities was a right of the individual and not of the racial group : “ It is the individual who is entitled to equal protection of the laws, and if he is denied by a common carrier, acting in the matter under the authority of a state law, a facility or convenience in the course of his journey which, under substantially the same circumstances, is furnished to another traveler, he may properly complain that his constitutional privilege has been invaded.” (McCabe v.

Atchison, Topeka & Santa Fe Railway Co., 235 U.S. 151, 161, 162 [35 S.Ct. 69, 59 L.Ed. 169].) In these cases the United States Supreme Court determined that the right of an individual to be treated without discrimination because of his race can be met by separate facilities affording substantially equal treatment to the members of the different races. A holding that such segregation does not impair the right of an individual to ride on trains or to enjoy a legal education is clearly inapplicable to the right of an individual to marry.

Since the essence of the right to marry is freedom to join in marriage with the person of one’s choice, a segregation statute for marriage necessarily impairs the right to marry. In determining whether the public interest requires the prohibition of a marriage between two persons, the state may take into consideration matters of legitimate concern to the state. Thus, disease that might become a peril to the prospective spouse or to the offspring of the marriage could be made a disqualification for marriage. (See for example, Civ.

Code, §§ 79.01, 79.06.) Such legislation, however, must be based on tests of the individual, not on arbitrary classifications of groups or races, and must be administered without discrimination on the grounds of race. (Yick Wo v. Hopkins, 118 U.S. 356, 373 [6 S.Ct. 1064, 30 L.Ed. 220].) It has been suggested that certain races are more prone than the Caucasian to diseases such as tuberculosis. If the state determines that certain diseases would endanger a marital partner or offspring, it may prohibit persons so diseased from marrying, but the statute must apply to all persons regardless of race.

Sections 60 and 69 are not motivated by a concern to diminish the transmission of disease by marriage, for they make race and not disease the disqualification. Thus, a tubercular Negro or a tubercular Caucasian may marry subject to the race limitation, but a Negro and a Caucasian who are free from disease may not marry each other. If the purpose of these sections was to prevent marriages by persons who do not have the qualifications for marriage that the state may properly prescribe, they would make the possession of such qualifications the test for members of all races alike.

By restricting the individual’s right to marry on the basis of race alone, they violate the equal protection of the laws clause of the United States Constitution. . II The parties, however, have argued at length the question whether the statute is arbitrary and unreasonable. They have assumed that under the equal protection clause the state may classify individuals according to their race in legislation regulating their fundamental rights.

If it be assumed that such a classification can validly be made under the equal protection clause in circumstances besides those arising from an emergency, the question would remain whether the statute’s classification of racial groups is based on differences between those groups bearing a substantial relation to a legitimate legislative objective. (Barker Bros., Inc. v. Los Angeles, 10 Cal.2d 603, 609 [76 P.2d 97]; Gulf etc. R. Co. v. Ellis, 165 U.S. 150, 165, 166 [17 S.Ct. 255, 41 L.Ed. 666]; Quaker City Cab Co. v. Pennsylvania, 277 U.

S. 389, 400 [48 S.Ct. 553, 72 L.Ed. 927].) Race restrictions must be viewed with great suspicion, for the Fourteenth Amendment “was adopted to prevent state legislation designed to discriminate on the basis of race or color” (Railway Mail Ass'n. v. Corsi, 326 U.S. 88, 94 [65 S.Ct. 1483, 89 L.Ed. 2072]; Williams v. International Brotherhood of Boilermakers, 27 Cal.2d 586, 590 [165 P.2d 903]) and expresses “a definite national policy against discriminations because of race or color.” (James v.

Marinship Corp., 25 Cal.2d 721, 740 [155 P.2d 329, 160 A.L.R. 900].) Any state legislation discriminating against persons on the basis of race or color has to overcome the strong presumption inherent in this constitutional policy. “Only the most exceptional circumstances can excuse discrimination on that basis in the face of the equal protection clause . . .” (Oyama v. California, 332 U.S. 633 [68 S.Ct. 269, 275, 92 L.Ed. -].) We shall therefore examine the history of the legislation in question and the arguments in its support to determine whether there are any exceptional circumstances sufficient to justify it.

California’s first miscegenation statute (Stats. 1850, ch. 140, p. 424) was enacted at the same time as two other statutes concerning race. It has been held that these three statutes were in pari materia and therefore to be read together. (Estate of Stark, 48 Cal.App.2d 209, 214 [119 P.2d 961].) The two companion statutes provided: “No black or mulatto person, or Indian, shall be permitted to give evidence in favor of, or against, any white person.

Every person who shall have one-eighth part or more of Negro blood shall be deemed a mulatto, and every person who shall have one half of Indian blood shall be deemed an Indian.” (Stats. 1850, ch. 99, § 14, p. 230; repealed Code Civ. Proc., § 18, 1872.) “No black, or mulatto person, or Indian, shall be permitted to give evidence in any action to which a white person is a party, in any Court of this State.

Every person who shall have one eighth part or more of negro blood, shall be deemed a mulatto; and every person who shall have one half Indian blood, shall be deemed an Indian.” (Stats. 1850, ch. 142, § 306, p. 455; repealed Code Civ. Proc., § 18, 1872.) In 1854, this court held that Chinese (and all others not white) were precluded from being witnesses against white persons on the basis of the statute quoted above. (People v.

Hall, 4 Cal. 399, 404.) The considerations motivating the decisión are candidly set forth: “The anomalous spectacle of a distinct people [Chinese], living in our community, recognizing no laws of this State except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference, is now presented, and for them is claimed, not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our Government.” (People v.

Hall, supra, at pp. 404-405.) For these reasons, therefore, “all races other than Caucasian” were held to be included in a statute referring only to a “black or mulatto person, or Indian.” , California courts are not alone in such utterances. Many courts in this country have assumed that human beings can be judged by race and that other races are inferior to the Caucasian. Respondent’s position is based upon those premises. He justifies the prohibition of miscegenation on grounds similar to those set forth in the frequently cited case of Scott v.

State (1869), 39 Ga. 321, 324: “The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the full blood of either race.” Modern experts are agreed that the progeny of marriages between persons of different races are not inferior to both parents.

Nevertheless, even if we were to assume that interracial marriage results in inferior progeny, we are unable to find any clear policy in the statute against marriages on that ground. Civil Code,

section 60, like most miscegenation statutes (see, Vernier, American Family Laws, §44), prohibits marriages only between “white persons” and members of certain other so-called races. Although

section 60 is more inclusive than most miscegenation statutes, it does not include “Indians” or “Hindus” (see, United States v. Bhagat Singh Thind, 261 U.S. 204, 214-215 [43 S.Ct. 338, 67 L.Ed. 616]) ; nor does it set up “Mexicans” as a separate category, although some authorities consider Mexico to be populated at least in part by persons who are a mixture of “white” and “Indian.” (See, 15 Encyclopedia Britannica, pp. 381-382, 60 Harv.L. Rev. 1156-1158.) Thus, “white persons” may marry persons who would be considered other than white by respondent’s authorities, and all other “races” may intermarry freely.

The Legislature therefore permits the mixing of all races with the single exception that white persons may not marry Negroes, Mongolians, mulattoes, or Malays. It might be concluded therefrom that

section 60 is based upon the theory that the progeny of a white person and a Mongolian or Negro or Malay are inferior or undesirable, while the progeny of members of other different races are not. Nevertheless, the

section does not prevent the mixing of “white” and “colored” blood. It permits marriages not only between Caucasians and others of darker pigmentation, such as Indians, Hindus, and Mexicans,- but between persons of mixed ancestry including white. If a person of partly Caucasian ancestry is yet classified as a Mongolian under

section 60 because his ancestry is predominantly Mongolian, a considerable mixture of Caucasian and Mongolian blood is permissible. A person having five-eighths Mongolian blood and three-eighths white blood could properly marry another person of preponderantly Mongolian blood. Similarly, a mulatto can marry a Negro. Under the theory of Estate of Stark, supra, that a mulatto is a person having one-eighth or more of Negro ancestry, a person having seven-eighths white ancestry could marry a Negro. In fact two mulattoes, each of four-eighths white and four-eighths Negro blood, could marry under

section 60, and their progeny, like them, would belong as much to one race as to the other. In effect, therefore,

section 60 permits a substantial amount of intermarriage between persons of some Caucasian ancestry and members of other races. Furthermore, there is no ban on illicit sexual relations between Caucasians and members of the proscribed races. Indeed, it is covertly encouraged by the race restrictions on marriage. Nevertheless, respondent has sought to justify the statute by contending that the prohibition of intermarriage between Caucasians and members of the specified races prevents the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians.

Respondent submits statistics relating to the physical inferiority of certain races. Most, if not all, of the ailments to which he refers are attributable largely to environmental factors. Moreover, one must take note of the statistics showing that there is a higher percentage of certain diseases among Caucasians than among non-Caucasians. The categorical statement that non-Caucasians are inherently physically inferior is without scientific proof.

In recent years scientists have attached great weight to the fact that their segregation in a generally inferior environment greatly increases their liability to physical ailments. In any event, generalizations based on race are untrustworthy in view of the great variations among members of the same race. The rationalization, therefore, that marriage between Caucasians and non-Caucasians is socially undesirable because of the physical disabilities of the latter, fails to take account of the physical disabilities of Caucasians and fails also to take account of variations among non-Caucasians.

The Legislature is free to prohibit marriages that are socially dangerous because of the physical disabilities of the parties concerned. (See, Civ. Code §§79.01, 79.06.) The miscegenation statute, however, condemns certain races as unfit to marry with Caucasians on the premise of a hypothetical racial disability, regardless of the physical qualifications of the individuals concerned. If this premise were carried to its logical conclusion, non-Caucasians who are now precluded from marrying Caucasians on physical grounds would also be precluded from marrying among themselves on the same grounds.

The concern to prevent marriages in the first category and the indifference about marriages in the second reveal the spuriousness of the contention that intermarriage between Caucasians and non-Caucasians is socially dangerous on physical grounds. Respondent also contends that Negroes, and impliedly the other races specified in

section 60, are inferior mentally to Caucasians. It is true that in the United States catalogues of distinguished people list more Caucasians than members of other races. It cannot be disregarded, however, that Caucasians are in the great majority and have generally had a more advantageous environment, and that the capacity of the members of any race to contribute to a nation’s culture depends in large measure on how freely they may participate in that culture.

There is no scientific proof that one race is superior to another in native ability.* **** The data on which Caucasian, superiority is based have undergone considerable reevaluation by social and physical scientists in the past two decades. Although scientists do not discount the influence of heredity on the ability to score highly on mental tests, there is no certain correlation between race and intelligence. There have been outstanding individuals in all races, and there has also been wide variation in the individuals of all races.

In any event the Legislature has not made an intelligence test a prerequisite to marriage. If respondent’s blanket condemnation of the mental ability of the proscribed races were accepted, there would be no limit to discriminations based upon the purported inferiority of certain races. It would then be logical to forbid Negroes to marry Negroes, or Mongolians to marry Mongolians, on the ground of mental inferiority, or by sterilization to decrease their numbers.

Respondent contends, however, that persons wishing to marry in contravention of race barriers come from the “dregs of society” and that their progeny will therefore be a burden on the community. There is no law forbidding marriage among the “dregs of society,” assuming that this expression is capable of definition. If there were such a law, it could not be applied without a proper determination of the persons that fall within that category, a determination that could hardly be made on the basis of race alone.

Respondent contends that even if the races specified in the statute are not by nature inferior to the Caucasian race, the statute can be justified as a means of diminishing race tension and preventing the birth of children who might become social problems. It is true that in some communities the marriage of persons of different races may result in tension. Similarly, race tension may result from the enforcement of the constitutional requirement that persons must not be excluded from juries solely on the ground of color, or segregated by law to certain districts within a city. In Buchanan v.

Warley, 245 U.S. 60, 81 [38 S.Ct. 16, 62 L.Ed. 149], the Supreme Court of the United States declared unconstitutional a statute forbidding a “white person” to move into a block where the greater number of residences were occupied by “colored persons” and forbidding a “colored person” to move into a block where the greater number of residences were occupied by “white persons.” The contention was made that the “proposed segregation will promote the public peace by preventing race conflicts.” The court stated in its opinion that desirable “as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.” (See, Cantwell v.

State, 310 U.S. 296, 310 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].) The effect of race prejudice upon any community is unquestionably detrimental both to the minority that is singled out for discrimination and to the dominant group that would perpetuate the prejudice. It is no answer to say that race tension can be eradicated through the perpetuation by law of the prejudices that give rise to the tension.

Nor can any reliance be placed on the decisions of the United States Supreme Court upholding laws requiring segregation of races in facilities supplied by local common carriers and schools, for that court has made it clear that in those instances the state must secure equal facilities for all persons regardless of race in order that no substantive right be impaired. (Sipuel v. Board of Regents, 332 U.S. 631 [68 S.Ct. 299, 92 L.Ed. -], [16 U.S. Law Week 4090]; Missouri ex rel. Gaines v.

Canada, 305 U.S. 337, 350-351 [59 S.Ct. 232, 83 L.Ed. 208].) In the present case, however, there is no redress for the serious restriction of the right of Negroes, mulattoes, Mongolians, and Malays to marry; certainly there is none in the corresponding restriction of the right of Caucasians to marry. A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains. Respondent relies on Pace v.

Alabama, 106 U.S. 583 [1 S.Ct. 637, 27 L.Ed. 207], in which the United States Supreme Court held constitutional an Alabama statute imposing more severe punishment for adultery or fornication between a white person and a Negro than for such acts between individuals belonging to the same race. The Alabama statute also referred to intermarriage but the court considered the ease as one dealing solely with adultery and nonmarital intercourse. We are not required by the facts of this case to discuss the reasoning of Pace v.

Alabama except to state that adultery and nonmarital intercourse are not, like marriage, a basic right, but are offenses subject to various degrees of punishment. The rationalization that race discrimination diminishes the contacts and therefore the tensions between races would perpetuate the deprivation of rights of racial minorities. It would justify an abridgment of their privilege of holding office, of jury service, of entering the professions. The courts have made it clear that these privileges are not the prerogatives of any race.

It is contended that interracial marriage has adverse effects not only upon the parties thereto but upon their progeny. Respondent relies on Buck v.

Bell, 274 U.S. 200 [47 S.Ct. 584, 71 L.Ed. 1000], for the proposition that the state “may properly protect itself as well as the children by taking steps which will prevent the birth of offspring who will constitute a serious social problem, even though such legislation must necessarily interfere with a natural right.” That case, however, involved a statute authorizing sterilization of imbeciles following scientific verification and the observance of procedural guarantees. In Buck v.

Bell the person sterilized was the feeble-minded child of a feeble-minded mother and was herself the mother of an illegitimate feeble-minded child. (See, Welf. & Inst. Code, § 6624.) The inheritability of mental defectiveness does not concern us here, for this case does not involve mentally defective persons. The Supreme Court of the United States later forbade the sterilization of criminals in Skinner v. Oklahoma, supra, where the Legislature failed to provide a fair hearing and set up illogical and discriminatory categories.

The racial categories in the miscegenation law are as illogical and discriminatory as those condemned by the Supreme Court in Skinner v. Oklahoma; and there is a corresponding lack of a fair hearing. Respondent maintains that Negroes are socially inferior and have so been judicially recognized (e.g., Wolfe v. Georgia Ry. & Elec. Co., 2 Ga.App. 499 [58 S.E. 899, 901]), and that the progeny of a marriage between a Negro and a Caucasian suffer not only the stigma of such inferiority but the fear of rejection by members of both races.

If they do, the fault lies not with their parents, but with the prejudices in the community and the laws that perpetuate those prejudices by giving legal force to the belief that certain races are inferior. If miscegenous marriages can be prohibited because of tensions suffered by the progeny, mixed religious unions could be prohibited on the same ground. There are now so many persons in the United States of mixed ancestry, that the tensions upon them are already diminishing and are bound to diminish even more in time.

Already many of the progeny of mixed marriages have made important contributions to the community. In any event the contention that the misceganation laws prohibit interracial marriage because of its adverse effects on the progeny is belied by the extreme racial intermixture that it tolerates. For many years progress was slow in the dissipation of the insecurity that haunts racial minorities, for there are many who believe that their own security depends on its maintenance.

Out of earnest belief, or out of irrational fears, they reason in a circle that such minorities are inferior in health, intelligence, and culture, and that this inferiority proves the need of the barriers of race prejudice. Careful examination of the arguments in support of the legislation in question reveals that “there is absent the compelling justification which would be needed to sustain discrimination of that nature.” (Oyama v.

California, 332 U.S. 633 [68 S.Ct. 269, 272, 92 L.Ed. -].) Certainly the fact alone that the discrimination has been sanctioned by the state for many years does not supply such justification. (Shelley v. Kraemer, 334 U.S. 1 [68 S.Ct. 836, 92 L.Ed. -]; Oyama v. California, supra; Takahashi v. Fish & Game Com., 334 U.S. 410 [68 S.Ct. 1138, 92 L.Ed. -]; see Winters v.

New York, 333 U.S. 507 [68 S.Ct. 665, 92 L.Ed. -].) III Even if a state could restrict the right to marry upon the basis of race alone, sections 60 and 69 of the Civil Code are nevertheless invalid because they are too vague and uncertain to constitute a valid regulation.

A certain precision is essential in a statute regulating a fundamental right. “It is the duty of the lawmaking body in framing laws to express its intent in clear and plain language to the end that the people upon whom it is designed to operate may be able to understand the legislative will.” (In re Alpine, 203 Cal. 731, 736-737 [265 P. 947, 58 A.L.R. 1500]; cases collected 50 Am.Jur. 484.) “It is a fundamental rule that no citizen should be deprived of his liberty for the violation of a law which is uncertain and ambiguous.” (In re Stewart, 24 Cal.2d 344, 348 [149 P.2d 689]; In re Peppers, 189 Cal. 682, 686 [209 P. 896]; United States v.

Cohen Grocery Co., 255 U.S. 81, 89-92 [41 S.Ct. 298, 65 L.Ed. 516]; Lanzetta v. New Jersey, 306 U.S. 451, 453 [59 S.Ct. 618, 83 L.Ed. 888]; Connally v. General Construction Co., 269 U.S. 385, 391 [46 S.Ct. 126, 70 L.Ed. 322].) The requirement that a law be definite and its meaning ascertainable by those whose rights and duties are governed thereby applies not only to penal statutes, but to laws governing fundamental rights and liberties. (Standard C. & M. Corp. v. Waugh C. Corp., 231 N. Y. 51, 54 [131 N.E. 566, 14 A.L.R. 1054]; Small Co. v. American Sugar Ref.

Co., 267 U.S. 233, 239 [45 S.Ct. 295, 69 L.Ed. 589]; see also State ex rel. Dickason v. Harris, 158 La. 974, 978 [105 So. 33].) Thus, this court in Hewitt v. Board of Medical Examiners, 148 Cal. 590, 595 [84 P. 39, 113 Am.St.Rep. 315, 7 Ann.Cas. 750, 3 L.R.A.N.S. 896] declared invalid a statute regulating the practice of medicine on the ground that its provisions were too vague and uncertain to govern one’s right to practice a profession. In In re Di Torio, 8 F.2d 279, 281 it was held that a provision of a statute regulating naturalization of aliens was invalid on the same ground.

Although the provision in question seemed clear on its face, the court refused to apply the statute to vacate an order of admission to citizenship because “An act is void where its language appears on its face to have a meaning, but it is impossible to give it any precise or intelligible application in the circumstances under which it was intended to operate.” (In re Di Torio, supra at 281 and cases there cited.)

Section 60 of the Civil Code declares void all marriages of white persons with Negroes, Mongolians, members of the Malay race or nralattoes. In this section, the Legislature has adopted one of the many systems classifying persons on the basis of race. Racial classifications that have been made in the past vary as to the number of divisions and the features regarded as distinguishing the members of each division. The number of races distinguished by systems of classification “varies from three or four to thirty-four.” (Boas, 7 Encyclopedia of Soc. Sciences, 25, 26.) The Legislature’s classification in

section 60 is based on the system suggested by Blumenbach early in the nineteenth century. (Roldan v. Los Angeles County, 129 Cal.App. 267, 273 [18 P.2d 706].) Blumenbach classified man into five races: Caucasian (white), Mongolian (yellow), Ethiopian (black), American Indian (red), and Malayan (brown). Even if that hard and fast classification be applied to persons all of whose ancestors belonged to-one of these racial divisions, the Legislature has made no provision for applying the statute to persons of mixed ancestry.

The fact is overwhelming that there has been a steady increase in the number of people in this country who belong to more than one race, and a growing number who have succeeded in identifying themselves with the Caucasian race even though they are not exclusively Caucasian. Some of these persons have migrated to this state; some are born here illegitimately ; others are the progeny of miseegenous marriages valid where contracted and therefore valid in California. (Pearson v. Pearson, 51 Cal. 120, 125.) The apparent purpose of the statute is to discourage the birth of children of mixed ancestry within this state.

Such a purpose, however, cannot be accomplished without taking into consideration marriages of persons of mixed ancestry. A statute regulating fundamental rights is clearly unconstitutional if it cannot be reasonably applied to accomplish its purpose. This court therefore cannot determine the constitutionality of the statute in question on the assumption that its provisions might, with sufficient definiteness, be applied to persons not of mixed ancestry.

The only reference made in the statute to persons of mixed ancestry is the prohibition of marriages between a “white person” and a “mulatto.” Even the term “mulatto” is not defined. The lack of a definition of that term leads to a special problem of how the statute is to be applied to a person, some but not all of whose ancestors are Negroes. The only ease in this state attempting to define the term “mulatto” in

section 60 of the Civil Code leaves undecided whether a person with less than one-eighth Negro blood is a “mulatto” within the meaning of the statute. (Estate of Stark, 48 Cal.App.2d 209, 214 [119 P.2d 961].) Even more uncertainty surrounds the meaning of the terms “white persons,” “Mongolians,” and “members of the Malay race.” If the statute is to be applied generally to persons of mixed ancestry the question arises whether it is to be applied on the basis of the physical appearance of the individual or on the basis of a genealogical research as to his ancestry.

If the physical appearance of the individual is to be the test, the statute would have to be applied on the basis of subjective impressions of various persons., Persons having the same parents and consequently the same hereditary background could be classified differently. On the other hand, if the application of the statute to persons of mixed ancestry is to be based on genealogical research, the question immediately arises what proportions of Caucasian, Mongolian, or Malayan ancestors govern the applicability of the statute.

Is it any trace of Mongolian or Malayan ancestry, or is it some unspecified proportion of such ancestry that makes a person a Mongolian or Malayan within the meaning of

section 60? To determine that a person is a Mongolian or Malayan within the meaning of the statute because of any trace of such ancestry, however slight, would be absurd. If the classification of a person of mixed ancestry depends upon a given proportion of Mongolians or Malayans among his ancestors, how can this court, without clearly invading the province of the Legislature, determine what that decisive proportion is? (See, Pacific Coast etc. Bank v.

Roberts, 16 Cal.2d 800, 805 [108 P.2d 439].) Nor can this court assume that a predominance in number of ancestors of one race makes a person a Caucasian, Mongolian, or Malayan within the meaning of the statute, for absurd results would follow from such an assumption. Thus, a person with three-sixteenths Malay ancestry might have many so-called Malay characteristics and yet be considered a white person in terms of his preponderantly white ancestry. Such a person might easily find himself in a dilemma, for if he were regarded as a white person under

section 60, he would be forbidden to marry a Malay, and yet his Malay characteristics might effectively preclude his marriage to another white person. Similarly, a person having three-eighths Mongolian ancestry might legally be classed as a white person even though he possessed Mongolian characteristics. He might have little opportunity or inclination to marry any one other than a Mongolian, yet

section 60 might forbid such a marriage. Moreover, if a person were of four-eighths,Mongolian or Malayan ancestry and four-eighths white ancestry, a test based on predominance in number of ancestors could not be applied.

Section 69 of the Civil Code and

section 60 on which it is based are therefore too vague and uncertain to be upheld as a valid regulation of the right to marry. Enforcement of the statute would place upon the officials charged with its administration and upon the courts charged with reviewing the legality of such administration the task of determining the meaning of the statute. That task could be carried out with respect to persons of mixed ancestry only on the basis of conceptions of race classification not supplied by the Legislature. “If no judical certainty can be settled upon as to the meaning of a statute, the courts are not at liberty to supply one. ’ ’ (In re Di Torio, 8 F.2d 279, 281.) 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 of the laws 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. Let the peremptory writ issue as prayed. Gibson, C. J., and Carter, J., concurred.

See also the concurring opinion of Jackson, J., indicating that sterilization of criminals as a biological experiment might be invalid: “There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority—even those who have been guilty of what the majority define as crimes. But this Act falls down before reaching this problem, which I mention only to avoid the implication that such a question may not exist because not discussed.

On it I would also reserve judgment.” (316 U.S. 546-547; see 51 Tale L.J. 1380.) Respondent refers to the following language in State v.

Jackson, 80 Mo. 175, 179 [50 Am.Rep. 499], although stating that "we have not found any other statement to hear out the biological claims’’ therein: "It is stated as a well authenticated fact that if the issue of a black man and a white woman, and a white man and a black woman intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites, laying out of view other sufficient grounds for such enactments. ’ ’ See, Oastle, Biological and Sociological Consequences of Bace Crossing, 9 Am.

J. of Physical Anthropology, pp. 145, 152-153; Linton, Sterling Professor Anthropology, Tale TJniv. and President of the American Anthropological Association, 64 Am.Merc. p. 133 (February 1947). Between 1930 and 1939 in California deaths resulted most frequently from diseases of the circulatory system, particularly heart diseases. These diseases were most prevalent among white persons, not including Mexicans, with the exception of Chinese, who slightly exceeded white persons. The second most important cause of death was cancer; here, white persons exceeded all others without exception.

Tuberculosis, an important cause of death, occurs with greater frequency among Negroes than among white persons, not including Mexicans; but Mexicans, Indians, Chinese and Malays have materially higher death rates owing to tuberculosis than Negroes and Japanese.

Diseases of the nervous system occur with less frequency among Indians, Japanese, Mexicans, and Malays than among white persons, Negroes, and Chinese. (The Population of California, Commonwealth Club of California Research Service (1946) pp. 217 et seq.) Respondent’s contention that fertility of Negroes and mulattoes is low is questionable. (See note 3, supra) Dr. S. J. Holmes

(1937) The Negro's Struggle for Survival, p. 176, states: “The fact is that we have not adequate data on a sufficiently large scale to enable us to decide how the mixed origin of the mulatto affects fertility, if it affects it at all.” Although Negro fertility rates are generally lower than those of white persons, other non-whites far exceed whites in birth rate. Further, the fertility rate of Rural-farm Negroes exceeds that of Rural-farm whites. Scientists give various

interpretations of statistics on fertility, analyzing them in the light of environmental as well as hereditary factors. (Population of California, supra, pp. 212 et seq.; see I Myrdal, p. 134, ch. 7.) See, I Myrdal, pp. 140-144; S. J. Holmes, The Negro's Struggle for Survival, p. 130.- Respondent contends, however, that there is a racial ailment among Negroes known as sickle-cell anemia. According to the Cyclopedia of Medicine, Surgery and Obstetrics

(1946) Vol. 2, p. 746, quoted by respondent, “Statistical studies indicate that 7 to 8 per cent of Negroes show the sickle-cell trait, though not necessarily suffering from sickle-cell anemia.” Assuming that the sickle-cell trait is found only in Negroes, despite known extensive intermixture of the races, respondent has shown only the trait and not the prevalence of sickle-cell anemia. Civil Code

section 79.01, which requires a premarital blood test, makes no provision for a report on sickle-cell anemia. See, I Myrdal, pp. 147-148: “These negative conclusions from many decades of the most painstaking scientific labor stand in glaring contrast to the ordinary white American’s firm conviction that there are fundamental psychic differences between Negroes and whites.

The reason for this contrast is not so much that the ordinary white American has made an error in observation, for most studies of intelligence show that the average Negro in the sample, if judged by performance on the test, is inferior to the average white person in the sample, and some studies show that the average Negro has certain specific personality differences from the white man, but that he has made an error in inferring that observed differences were innate and a part of ‘nature.’ He has not been able to discern thp influence of gross environmental differences, much less the influence of more subtle life experiences.

The fact should not be ignored, however, that he has also made many observational errors, because his observations have been limited and biased.” See, also, Ralph Linton, Sterling Professor of Anthropology, Yale University, 64 Am.Merc. pp. 133, 139; Joseph Peterson & Lyle H. Lanier, Studies in the Comparative Abilities of Whites and Negroes, No. 5, Mental Measurement Monographs (1929); Otto Klineberg, A Study of Psychological Differences Between “Racial” and National Groups in Europe, Archives of Psychology, No. 132, vol. XX, (1931); Thomas Russell Garth

(1931) Race Psychology, A Study of Racial Mental Differences; I Myrdal, pp. 144-153; Otto Klineberg,

(1935) Negro Intelligence and Selective Migration; Ruth Benedict

(1943) Race: Science and Polities, pp. 98-147. Indeed, Father John La Farge, S. J.

(1943) The Baee Question and The Negro (Permissu Superiorum), p. 196, considers the tensions “not unlike. ’ ’ See, M. J. Herskovits

(1930) The Anthropometry of the American Negro; E. B. Beuter

(1931) Baee Mixture; I Myrdal, Pp. 132-133, 1360-1361. See Julian S. Huxley and H. C. Haddon

(1936) We Europeans, A Survey of “Racial” Problems, 1-15, 82, 106, 115-131, 215-236. Black's Law Dictionary (3d ed.) defines a mulatto as “A person that is the offspring of a negress by a white man, or of a white woman by a negro. ... In a more general sense, a person of mixed Caucasian and negro blood, or Indian and Negro blood. . . .

Properly a mulatto is a person one of whose parents is wholly black and the other wholly white; but the word does not always, though perhaps it does generally, require so exactly even a mixture of blood, nor is its signification alike in all the states. ...” The same source defines a Negro as follows: “The word ‘negro’ means a black man, one descended from the African race, and does not commonly include a mulatto. . . . But the laws of the different states are not uniform in this respect, some including in the description ‘negro’ one who has one-eighth or more of African blood.

Term ‘negro’ means necessarily person of color, but not every person of color is a ‘negro’.” The foregoing

definitions of “Mulatto” and “Negro” are substantially the same as the

definitions contained in Bouvier’s Law Dictionary. See also I Myrdal, An American Dilemma, p. 113: “Legislation in this respect tends to conform to social usage, although often it is not so exclusive. In some states one Negro grandparent defines a person as a Negro for legal purposes, in other states any Negro ancestor—no matter how far removed—is sufficient. In the Southern states

definitions of who is a Negro are often conflicting. Since reconstruction, there has been a tendency to broaden the definition. The Northeastern states generally have no definition of Negro in law.”