Perez v. Sharp
|Perez v. Sharp|
|Supreme Court of California|
|Decided October 1, 1948
|Marriage is a fundamental right in a free society; the state may not restrict this right with respect to restrictions based upon the race of the parties.|
|Plurality by: Traynor
Joined by: Gibson, Carter
Concurrence by: Edmonds
Concurrence/dissent by: Shenk
Joined by: Schauer, Spence
|U.S. Const. Amend. XIV cl. 1, and Cal. Civ. Code, §§ 60, 69, 69a|
In 1948, in the case Perez v. Sharp, also known as Perez v. Lippold and Perez v. Moroney, the Supreme Court of California recognized that interracial bans on marriage violated the Fourteenth Amendment of the Federal Constitution.
The lead opinion for the four-to-three decision was authored by Associate Justice Roger J. Traynor who would later serve as the Court's Chief Justice. The dissent was written by Associate Justice John W. Shenk, the second longest-serving member in the Courts' history and an important judicial conservative of his day. The opinion was the first of any state to strike down an anti-miscegenation law in the United States.
Perez and Davis applied for a marriage license with the County Clerk of Los Angeles. On the application for a marriage license, Andrea Perez listed her race as “white,” and Sylvester Davis identified himself as “Negro.” Under the California law, individuals of Mexican ancestry generally were classified as white because of their Spanish heritage.
The County Clerk (named W.G. Sharp) refused to issue the license based on California Civil Code Section 60, which provided that “All marriages of white persons with Negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void,” and also on Section 69, which stated that ". . . no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race". At the time, California's anti-miscegenation statute had banned interracial marriage since 1850, when it first enacted a statute prohibiting whites from marrying blacks or mulattoes.
Perez petitioned the California Supreme Court for an original Writ of Mandate to compel the issuance of the license. Perez and Davis were both Catholics and wanted to marry in a mass in a Catholic Church. One of their primary arguments, adopted by Justice Douglas Edmonds in his concurring opinion, was that the Church was willing to marry them, and the state's anti-miscegenation law infringed on their right to participate fully in the sacraments of their religion, including the sacrament of matrimony.
Court opinion 
The court held that marriage is a fundamental right and that laws restricting that right must not be based solely on prejudice. The lead opinion by Justice Roger Traynor and joined by Chief Justice Phil Gibson and Justice Jesse Carter, held that restrictions due to discrimination violated the constitutional requirements of due process and equal protection of the laws. The court voided the California statute, holding that Section 69 of the California Civil Code was too vague and uncertain to be enforceable restrictions on the fundamental right of marriage and that they violated the Fourteenth Amendment by impairing the right to marry on the basis of race alone. In a separate concurring opinion, Justice Douglas Edmonds held that the statute violated the religious freedom of the plaintiffs, since the anti-miscegenation law infringed on their right to participate fully in the sacrament of matrimony.
By its decision in this case, the California Supreme Court became the first court of the twentieth century to hold that a state anti-miscegenation law violates the Federal Constitution. It preceded Loving v. Virginia, the case in which the United States Supreme Court invalidated all such state statutes, by 19 years, and antedated the civil rights milestones such as Brown v. Board of Education from which Loving benefited. Indeed, in Loving, Chief Justice Warren cited Perez in footnote five, and at least one scholar has discussed the extent to which Perez influenced his opinion.
The California Supreme Court also based much of its 2008 decision In re Marriage Cases (2008) 43 Cal.4th 757, which declared that the portions of California law which restrict marriage to be between a man and a woman to be unconstitutional, on Perez.
- 32 Cal. 2d 711, 198 P. 2d 17 (Cal. 1948).
- See Dara Orenstein, Void for Vagueness: Mexicans and the Collapse of Miscegenation Law in California, 74 Pac. Hist. Rev. 367, 367-68 (2005).
- California Civil Code, section 69.
- Rachel F. Moran, Loving and the Legacy of Unintended Consequences, 2007 Wis. L. Rev. 239, 268.
- Kennedy, Randall (2003). Interracial Intimacies. Vintage Books. pp. 259–266. ISBN 0-375-70264-4.
- See R.A. Lenhardt, "The Story of Perez v. Sharp: Forgotten Lessons on Race, Law, and Marriage", in Race Law Stories (Rachel F. Moran & Devon Carbado eds., forthcoming 2008).