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11  Virginia 'Biology' Based on Delusion
    The Washington Post, Sunday, October 2, 1966

     The State's Law Against Miscegenation Presumes
     That the Race of Humans is Readily Decidable

     Loving and Loving, man and wife, have appealed to the Supreme
Court to reaffirm the brotherhood of man in its most fundamental
aspects.  They ask that Virginia's miscegenation statute be declared
an unconstitutional and discriminatory invasion of human rights.
Their appeal, supported by the American Civil Liberties Union, is
based mainly on the 14th Amendment's guarantee of equal protection
under the law.

     Virginia, like many other Southern states, forbids the marriage
of "Caucasians" with other races.  Richard and Mildred Loving, who
have not denied that they match the stereotypes of white and Negro
and who are legally married under the laws of the District of
Columbia, ask for the right to re-enter Virginia as man and wife,
an act for which they are under suspended sentence of a year's
imprisonment.

     The 14th Amendment may already invalidate the statute,
particularly in the light of the odious theory of genetic
contamination that must underly it.  It would be regrettable, how-
ever, if this obscured the absurdity of the Virginia statute in the
light of human biology.  The application of a racial criterion to
an individual act is not merely pernicious; it is also founded on
the delusion that the race of any human is a readily decidable fact.
This issue not having been reviewed in the Virginia courts, it is
probably immaterial to the Supreme Court's current consideration.

     The leading case on miscegenation in California, Perez v.
Sharp, 1948, gives legal precedent for this argument."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 also to laws governing fundamental rights and
liberties," said the California Supreme Court, referring to the
difficulty a person of mixed ancestry would have in deciding
whom, if anyone, he was qualified to marry.

     Virginia law makes it a crime "for any white person in this
state to marry any save a white person." "The term 'white person'
shall apply only to such person as has no trace whatever of any
blood other than Caucasian"; and "Every person in whom there is
ascertainable any Negro blood shall be deemed and taken to be a
colored person."

     The term "blood" already creates a grave difficulty, since the
attribution of heredity to blood is an old wives' tale.  No test
on blood can distinguish the vast majority of ethnic whites from
ethnic Negroes in this country, much less indicate some trace of
ancestral mixture.  It would be an amusing defense against the law
if prospective spouses took care to exchange microscopic traces
of the blood in their veins by transfusion.

     Allegorically (a strange idea for law), "blood" could be
translated as "ancestral heredity."  Now we have an entrancing dilemma:
who is certainly "white" as defined by Virginia?  There is good
reason to doubt that Adam and Eve were both Caucasian, particularly
as an overwhelming majority of their contemporary descendants have
obvious non-Caucasian attributes.  Other theories of human evolution
are no more reassuring to the seeker of absolute classifications.

     The history of Eurasia and the Mediterranean basin is full of
explorations, migrations, invasions, crusades, wars, barter of slaves
and princesses -- all of which have tended to scramble the major
sets of genes.  The external characteristic of skin color, which
is biologically superficial but obvious, has been subject to caste
discrimination for centuries and conceals wide variations in
personality and achievement. In any case, very few citizens can have
more than a tentative guess of their ancestry for as many as ten
generations, hardly enough to qualify against "any trace" of a
disparate color.

     Social acceptance is a more honest definition of race than
pseudo-biology.  Missouri forbids a "white person" to marry anyone
who is "one-eighth" or more Negro or Mongolian" and leaves it to
the trial jury to make the determination by inspection.  Many couples
may then be liable to challenge throughout their lives, not knowing
the rules by which any jury can make such a determination.

     Again, even if the intention could be permitted to stand, the
administration of a law founded on subjective prejudice is
inconsistent with due process in our constitutional system.  A
broadside aimed at an ethnic group must eventually be analyzed
for its impact on individuals.  Human beings have a happy facility
for evading simple-minded classifications.

     Few scientists would quarrel with these difficulties of 
individual definition.  This has not deterred the Census Bureau,
the Civil Service Commission, the Office of Educational Statistics
and other Federal agencies from insisting on questions about the
"race" of individuals.  While the term is not defined, this
tendency appears to give the weight of Federal acquiescence to a
spurious theory of human classification.  Better to replace "race"
by ethnic affiliation and strive for a society where this affiliation
is an individual choice.

     This discussion does not reach the question of inherent
differences in social performance between the races at large.  It
need not, since democratic society is founded on the premise of
individual, not racial, values.  Nor could it, except on faith,
since the existing factual evidence is altogether too flimsy to
support any other conclusion than "we don't know."  It certainly
is clear that the known progeny of interracial marriages are
ordinary human beings.  Why should the state take any special interest
in race as a factor in marriage any more than it does in linguistic
background?
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