Perez v. Sharp

Perez v. Sharp

Supreme Court of California
Decided October 1, 1948
Full case name: Andrea D. Perez and Sylvester S. Davis, Jr. v. A.W. Sharp, as County Clerk of the County of Los Angeles
Citations: 32 Cal.2d 711 (1948) [198 P.2d 17]
Prior appellate history: none (original proceeding for Writ of Mandate.
Subsequent appellate history: none
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.
Court membership
Chief Justice Phil S. Gibson
Associate Justices John W. Shenk, Douglas L. Edmonds, Jesse W. Carter, Roger J. Traynor, B. Rey Schauer, Homer R. Spence
Case opinions
Majority by: Traynor
Joined by: Gibson, Edmonds, Carter
Concurrence by: Edmonds
Concurrence and Dissent by: Shenk
Joined by: Schauer, Spence
Laws applied
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 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 antimiscegenation law.


Andrea Perez (a Mexican American woman) and Sylvester Davis (an African American man) met while working in the defense industry in Los Angeles. "Their romance blossomed beyond the watchful eyes of their families, particularly the Perez parents. The couple saw marriage as a natural outcome of the love they had come to feel for one another.

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.

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 was that the Church was willing to marry them, and the state's antimiscegenation law infringed on their right to participate fully in the sacraments of their religion, including the sacrament of matrimony.

The Opinion

The court held that marriage is a fundamental right and that laws restricting that right must not be based solely on prejudice. The court held that restrictions due to discrimination violated the constitutional requirements of due process and equal protection of the laws. The opinion 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.


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 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.


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