McLaughlin v. Florida

PETITIONER:McLaughlin
RESPONDENT:Florida
LOCATION:Criminal District Court, Parish of New Orleans

DOCKET NO.: 11
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 379 US 184 (1964)
ARGUED: Oct 13, 1964 / Oct 14, 1964
DECIDED: Dec 07, 1964

Facts of the case

Question

  • Oral Argument – October 14, 1964
  • Audio Transcription for Oral Argument – October 14, 1964 in McLaughlin v. Florida

    Audio Transcription for Oral Argument – October 13, 1964 in McLaughlin v. Florida

    Earl Warren:

    Number 11, Dewey McLaughlin et al., Appellants versus Florida.

    Mr. Coleman.

    William T. Coleman, Jr.:

    Good afternoon Mr. Chief Justice, and may it please the Court.

    The basic issue in this appeal is whether in a country committed the equality concept as it — as inviting in the Fourteenth Amendment to the constitution of the United States, a state, one, can make certain conduct illegal and criminal exclusively and solely because persons of different races are involved, or two, can deny citizens the right to marry each other exclusively and solely because they are of different races.

    The case is here on appeal at every stage in the proceeding, the appellants’ attack the constitutionality on federal grounds of the statute of which they stand convicted.

    The relevant facts are as follows.

    On March 1, 1962, appellants described in the information which appears on page 3 of the record as Connie Hoffman and Dewey McLaughlin were charged with violation of Section 798.05 of the Florida statutes.

    This statute, which is found on page 2 of our brief provides any Negro man and White woman or any White man and Negro woman who are not married to each other who shall habitually live in and occupy in the night time the same room shall be punished by imprisonment not exceeding 12 months or by fine not ex — not exceeding $500.

    The information alleged that the person described in the information as Connie Hoffman being a White woman, and Dewey McLaughlin being a Negro man who are not married to each other that habitually live in and occupy in the night time the same room.

    The appellants entered the plea of not guilty.

    They filed a motion to quash the information which motion appears on page 5 of the record, and in this motion, they attack the constitutionality of 798.05 on the ground that it violated the federal constitution because of vagueness that it denied them equal protection of law and invaded their right to privacy.

    Strongly there’s no cohabitation in the statute that applies to people of the same race?

    William T. Coleman, Jr.:

    Sir I make the — sir, I make the firm statement that in first place, the statute is not a cohabitation statute, if you mean by cohabitation that there has to be sexual intercourse.

    I make the firm statement that — that there is no statute in Florida which would punish this conduct if done by two White persons with different sexes or two Negroes.

    And I thought that we would spend some time in the brief pointing out the Florida statutes, but sir, I think I’m relieved to that obligation because if you will turn to page 55 of the state’s brief which is a brief for the appellee, you will see where they say and they recognize that the statute that we’re under, 798.05, does not require proof that sexual intercourse took place.

    And the only statute that the state can come near to pointing out that maybe there is a similar crime of people who are involved of the same race is 798.02 where they admit and concede that under that statute, the state must show and has to show as a matter of its proof that sexual intercourse took place.

    — this is the so called fornication?

    William T. Coleman, Jr.:

    No sir, this is called the lewd and cohabitation statute.

    Under the fornication statute, I think every state that has one in the union clearly requires proof of sexual intercourse.

    This statute — and let’s make this clear only for the argument that this statute does not require any proof of sexual intercourse and that issue was not submitted to the jury.

    In fact, I think at this stage just to wrap this point up Your Honor, I’d like to call your attention to the charge which appears on page — starting on page 92 of the record.

    And at page 93 at the bottom of the last four paragraph where the judge says “I instruct you that the elements of the crime — charge in this case and which must be proved to you beyond — and beyond the exclusion of every reasonable blood” and I’m pretty sure he means doubt “are as follows.

    That one defendant in this case has at least 1/8 Negro blood and that the other defendant has more than 7/8 White blood.

    Two that defendants have habitually or did habitually live in and occupied the same room during the night time and three, that defendants were not married to each other at the time of the alleged offense.”

    You will note there’s no charge that you have to prove that sexual intercourse took play and we cite cases in our brief on page 10 and 12 which clearly establish that fact.

    So here, you have a case where solely because the parties are of different race, they can go to jail and be sentenced with the same thing that if they had been of the same race, they could not have been punished for.

    As I pointed out to sir, not only did we attack the statute by filing a motion attacking the information, but immediately after the case had been called for trial but before any witnesses were put on, the same constitutional issues were raised and the court there rejected them on the ground that have been raised and passed upon by another judge.

    That appears on page 18 of the record.

    Now, as I’ve told you, there were three things that the state had to prove.

    Now the evidence with respect to the first one, namely that they lived in the same room together or they occupy the same room was testimony that on several occasion, Dewey McLaughlin was seen in the apartment rented to the woman, appellant, and that he was seen there as late as 11 o’clock at night and as early as 7:30 in the morning.

    William T. Coleman, Jr.:

    Now that’s basically the testimony on that and we don’t challenge that fact.

    Now with respect to the marriage or lack of marriage, and when I developed my argument, you will find that the state has determined that the existence of a marriage is part of the offense and the state has the burden of proving that a marriage did not exist.

    Now the testimony on marriage is in conflict and it was —

    William J. Brennan, Jr.:

    — in other words, one of the ingredients is the state’s burden of proof that there was no marriage?

    William T. Coleman, Jr.:

    Yes sir, there’s a case which so holds that the state has the burden of proving that there was no marriage, and we cite that case in our brief Your Honor.

    Now the testimony in all of this came out of the witnesses produced by the state, was that the two appellants had held themselves out as being husband and wife and they referred to on many occasions as husband and wife.

    The state, however, sought to prove that a marriage did not exist, relying upon testimony that when the male appellant applied in 1961 which was two years — which was a year before the offense, had stated when asked his marital status that he was separated from a person named Willy McLaughlin.

    And also with respect to the woman appellant, the state attempted to show that at different times in her life, as one time she went by the name of Gonzales and then she went by the name of Hoffman.

    Now with respect to the marriage or non-marriage, our position on that is that perhaps a jury could’ve found either way that there was a marriage or there was not a marriage although I don’t think the testimony is really that clear but we don’t have that problem because the judge, when he turned to that issue, took that issue out of the case because he instructed on page 94 that in the State of Florida that if the facts took place in Florida, which you may rely upon to prove a common law marriage, that if the parties were of different races, they couldn’t enter into a common law marriage.

    There’s a Florida constitution provision which prevents that and there are two Florida statutes and I think there’s a third one that will put the minister in jail that would perform that type of ceremony.

    So therefore the issue was taken away from the jury.

    Now the constitution —

    The judge could —

    Tom C. Clark:

    — common law marriage.

    William T. Coleman, Jr.:

    Pardon sir?

    Tom C. Clark:

    The common law marriage was taken away.

    William T. Coleman, Jr.:

    I didn’t hear you sir.

    Tom C. Clark:

    I said the issue on the common law marriage was taken away.

    William T. Coleman, Jr.:

    Was taken away from the jury.

    The jury said “If you find that one is a Negro and the other’s White and — and if you find that whatever relation there depending upon took place in Florida, and I instruct as a matter of law that they could not be married because in — in Florida, there is a statute which prevents the intermarriage of Negro male, White person and White — and White people.” Therefore that issue was taken out.

    Tom C. Clark:

    Did the defendant put on any defense?

    William T. Coleman, Jr.:

    The defendant did not put on defense Your Honor because they felt that after the case was tried relying upon the judgment that lawyers do sometime within the pit or they just feel that the state hasn’t proven its case and in fact that proved the case to the extent that the appellants would like it proved, so why do you cut it up by putting on the defense.

    Arthur J. Goldberg:

    (Inaudible)

    William T. Coleman, Jr.:

    Sir, that was not objected to but there’s an opinion by Justice Douglas which is in 337 U.S. 1, I know the citation.

    I’ll try to pronounce the name, I think Terminiello versus Chicago, and Justice Douglas before the Court held that where the instruction of the judge in effect constitutes an interpretation of the statute and the appellant challenges the statute as applied, then there is no need to take a special exception for the instruction.

    And so for that basis, and also because Flor — Florida like many other states say that where it’s fundamental that you do not have to object, and indeed there’s a case which we cite in our brief — in our reply brief at the Henderson case, which says in whole specifically that where the charge in effect goes to the gist of the statutory crime and by making the charge you take out part of the — the — the statutory offense that you don’t have to object and you can’t raise that on appeal.

    William J. Brennan, Jr.:

    Mr. Coleman may I ask, if we should agree with your proposition that on its face, because it applies only to a man and woman of different races, this statute is unconstitutional, we won’t have to be concerned with any of this you’re arguing?

    William T. Coleman, Jr.:

    That’s right Your Honor.

    Now with respect to the miscegenation or anti-miscegenation issue Mr. Pollak was going to develop that part of the argument and I was going to develop just the question you raised Justice — Mr. Justice Brennan that on the face, the statute under which these people were convicted violates the Fourteenth Amendment and on —

    (Inaudible)

    William T. Coleman, Jr.:

    Yes sir.

    That’s the next par — yes.

    (Inaudible)

    William T. Coleman, Jr.:

    Yes sir, yes sir.

    Is that the law here?

    William T. Coleman, Jr.:

    That’s what the judge said the law of Florida was and I think that you fairly could read the statute because it says if you’re a residence or domicile in Florida then you can’t get married.

    (Inaudible)

    William T. Coleman, Jr.:

    Yes sir, yes sir.

    (Inaudible)

    William T. Coleman, Jr.:

    Well no sir, because the evidence here was —

    (Inaudible)

    William T. Coleman, Jr.:

    Well to the extent that this evidence in the record that there was a common law of marriage Your Honor, it’s clear that it took place in Florida.

    If at all.

    William T. Coleman, Jr.:

    If at all.

    Yes.

    William T. Coleman, Jr.:

    And so he took it out of the case, because that’s the facts in this case, yes sir.

    As I said Mr. Pollak will develop that part of the argument.

    I would like to turn back to the constitutionality or one — one other point and I think we would be able to break.

    With respect to the race of the party, I think that, I would like to invite the Court’s attention to read pages 60, 65 of the record.

    That there you have a Florida statute which says — has this provision of 1/8 which because you use mathematics, you just assume that it must be definite.

    But then just read what the judge said because once you had the 1/8 problem of the blood and the lawyer pointed out where you can’t prove who has Negro blood and who doesn’t have Negro blood, the judge is “Oh, the statute can’t mean that.”

    And then he moves to say “Well it must mean ancestors?”

    Then they said “There’s no proof of ancestors in the record.”

    He says “Well it really doesn’t mean that.

    What it really must mean is that somebody can go on the stand and testify as to the race of the party in his judgment and that’s all the state has to do.”

    Now the person to testify as respect to the race says “I’m no expert in this but in my judgment one looks like White and the other Negro.”

    So I do think you also have the issue of vagueness, or if the statute isn’t vague, you have the issue that the — there’s no proof.

    There’s no proof in this record that one person had 1/8 Negro blood —

    William J. Brennan, Jr.:

    But you mean would this be a Thompson form?

    William T. Coleman, Jr.:

    Pardon?

    William J. Brennan, Jr.:

    Would this be Thompson form of element?

    William T. Coleman, Jr.:

    Yes sir, yes sir.

    There’s no proof in this record that one party has 1/8 Negro blood.

    There’s no place in the record that the other party has 7/8 white blood.

    Well the only proof is that — that somebody goes on the stand says “I’m not an expert but looking at them, I think one’s White and one is Negro.”

    Now —

    Arthur J. Goldberg:

    The discrimination — the discrimination that you’re arguing for at this point is not that the two people involved in this case, one White one colored are treated differently.

    The statute applies to both of them doesn’t it?

    William T. Coleman, Jr.:

    Yes sir, both of them —

    Arthur J. Goldberg:

    Inquiry to the white as to the colored.

    William T. Coleman, Jr.:

    Yes sir.

    And they’re punished on the same basis?

    William T. Coleman, Jr.:

    Yes sir.

    John M. Harlan:

    But your discrimination argument is that as against both of them, the Negro as well as the White person that they are being discriminated against people of the same — as against people of the same race who are permitted to do what they’re prohibited to do.

    William T. Coleman, Jr.:

    Yes sir, yes sir.

    And then with respect to the marriage statute, I know not — no relationship and more personal and to tell you, well you really can’t complain because you can go and find somebody else you can marry.

    Certainly, it doesn’t seem to me to answer the problem as whether the statute has really affected you.