Peter Wallenstein
Excerpted from: Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860's - 1960's, 70 Chi.-Kent L. Rev. 371- 437, 415-419 (1994).
As late as the 1950s, miscegenation cases continued to come before the Alabama Court of Appeals, and they demonstrated the continuing impossibility of securing change in the courts. A black woman named Linnie Jackson was convicted for her miscegenous relationship with a white man named A. C. Burcham. E. B. Haltom, Jr., her lawyer, relying on a long train of twentieth-century civil rights decisions from the U.S. Supreme Court, challenged the proceeding on Fifth and Fourteenth Amendment grounds. Nonetheless, the Alabama Court of Appeals surveyed the history of decisions in miscegenation cases in the Alabama courts, declared that the nation's high court had affirmed the Pace decision, and noted that "the decisions of the [Alabama] Supreme Court shall govern the holdings and decisions of this court." It upheld her conviction.
Jackson did not give up. She took her case to the Alabama Supreme Court, which rebuffed her as well, and then to the U.S. Supreme Court. There she found that the justices were by no means eager to push an equal- rights agenda on the matter of miscegenation. Focused as they were on the school segregation cases that had been decided in 1954, they recognized that, were they to take on miscegenation, they might only get in their own way.
The first decision announced in Brown v. Board of Education came in May 1954; the second, implementing decision came in May 1955. Linnie Jackson's case came to the Court in between those two dates.
Early writers surmised that, as one put it, though "[t]here is no doubt that these statutes are unconstitutional," "the Court, or at least some of its Justices, did not believe that airing this inflammatory subject, of little practical significance, would be in the public interest while strident opposition is being voiced to less controversial desegregation because it allegedly leads to intermarriage." The papers of various Supreme Court justices now make it clear that such speculations were exactly right.
Harvey M. Grossman, law clerk to Justice William O. Douglas, expressed his conflicted response when advising his boss on the Jackson case. "It seems clear that the statute involved is unconstitutional," he wrote on November 3, 1954. And yet, he continued,
review at the present time would probably increase the tensions growing out of the school segregation cases and perhaps impede solution to that problem, and therefore the Court may wish to defer action until a future time. Nevertheless, I believe that[,] since the deprivation of rights involved here has such serious consequences to the petitioner and others similarly situated [,] review is probably warranted even though action might be postponed until the school segregation problem is solved. Later that month, the Supreme Court dodged the bullet. With no indication of dissent, it denied certiorari. Seven decades had elapsed from one miscegenation case to another before the Court, and nothing, it seemed, had changed. The precedent, such as it was, in Pace remained intact. Linnie Jackson went to the penitentiary. And the next year, the Court dodged another such case, one that came from Virginia.
On June 26, 1952, Ham Say Naim, a Chinese sailor, married a white woman from Virginia in Elizabeth City, North Carolina. That state, unlike Virginia, permitted marriages between Caucasians and Asians, though not between whites and blacks. For some months the Naims made their home in Norfolk, Virginia. Then they separated. On September 30, 1953, Ruby Elaine Naim filed a petition seeking annulment on grounds of adultery, and if that effort failed, she asked that an annulment be granted on the basis of Virginia's ban on interracial marriages.
Judge Floyd E. Kellam of the Portsmouth Circuit Court knew an easy case when he saw one. Here was a marriage between a white person and a nonwhite. The couple had gone to North Carolina in order to evade the Virginia law. Of course, the marriage was void and he granted the annulment.
Now it was Mr. Naim's turn to go to court. On the basis of his marriage to an American citizen, he had applied for an immigrant visa, and unless he remained married he could not hope to be successful. His immigration attorney, David Carliner, had his own reasons for challenging the constitutionality of Virginia's antimiscegenation statute. He and Naim mounted a test case. They challenged the circuit court's decision on the grounds that the Fourteenth Amendment overrode the Virginia statute.
Speaking for a unanimous Virginia Supreme Court of Appeals, Justice Archibald Chapman Buchanan relied on the Tenth Amendment to fend off the Fourteenth. "Regulation of the marriage relation," he insisted, "is . . . distinctly one of the rights guaranteed to the States and safeguarded by that bastion of States' rights, somewhat battered perhaps but still a sturdy fortress in our fundamental law, the tenth section of the Bill of Rights."
What about Brown v. Board of Education and its incantation of the Equal Protection Clause? No problem, Justice Buchanan assured Virginia authorities. "No such claim for the intermarriage of the races could be supported; by no sort of valid reasoning could it be found to be a foundation of good citizenship or a right which must be made available to all on equal terms." He could find nothing in the U.S. Constitution, he wrote, that would "prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens." Rather than promote good citizenship, he suggested, "the obliteration of racial pride" and "the corruption of blood" would "weaken or destroy the quality of its citizenship."
Refusing to give up, Naim appealed to the U.S. Supreme Court. Unfortunately for Naim, his case came to the Supreme Court only one year after Jackson, and the Court was no more eager to confront the issue then than it had been the year before. John Marshall Harlan, a recent appointee to the nation's high bench, brought a tormented mind and a tortured prose to the task of writing a formal statement that he wished to read in conference on November 5, 1955, regarding the case from Virginia. He spoke of "moral considerations," which he proceeded to identify as "of course, 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." He felt certain, he said, that every member of the Court agreed with him that "to throw a decision of this Court other than validating this legislation into the vortex of the present disquietude would . . . seriously, I believe very seriously, embarrass the carrying out of the Court's decree of last May."
The Court neither accepted nor refused the case. Rather, it sent the case back to Virginia.
Determining the record insufficiently clear or complete to address the question Naim raised, it directed the Virginia Supreme Court of Appeals to remand the case to Portsmouth for further proceedings. But that state's highest court refused to cooperate with the high court's request -- or, rather, it acted to help the high court out of its dilemma. It remonstrated that
the record before the Circuit Court of the City of Portsmouth was adequate for a decision of the issues presented to it. The record before this court was adequate for deciding the issues on review. . . .
The decree of the trial court and the decree of this court affirming it have become final so far as these courts are concerned. The Virginia statutes were sound, the Naims' marriage was void, and the Virginia courts' decisions were final, said the court.
We have no provision either under the rules of practice of this court or under the statute law of this Commonwealth by which this court may send the cause back to the Circuit Court with directions to reopen the cause so decided, gather additional evidence and render a new decision. Indeed, such action would be contrary to our fixed rules of practice and procedure and our statute law. The Richmond Times-Dispatch published an editorial about the standoff. While acknowledging that the Virginia court had "used some rather tart language in refusing to comply," it insisted nonetheless that "the Virginia court has not defied the nation's highest tribunal." Rather, the paper noted that the state court had simply declared that "it had no legal means of conniving with the Federal court's order."
Noting many Virginians' displeasure with the Supreme Court's recent rulings on segregation, the editorial observed that those "[m]any Virginians . . . also applaud the Virginia court in rebuffing the Federal court's attempt to operate in an area of State affairs over which it has no jurisdiction."
Naim took his case back to the Supreme Court, but there it died. The Court simply noted that the response of the Virginia Supreme Court of Appeals "leaves the case devoid of a properly presented Federal question." The Virginia court had helped take the U.S. Supreme Court off the hook. No judicial reconsideration took place in the 1950s regarding Alabama's or Virginia's antimiscegenation laws.
