It is my considered opinion that the statutes here involved (Civ. Code, §§ 60, 69) are the product of ignorance, prejudice and intolerance, and I am happy to join in the decision of this court holding that they are invalid and unenforceable. This decision is in harmony with the declarations contained in the Declaration of Independence which are guaranteed by the Bill of Rights and the Fourteenth Amendment to the Constitution of the United States and reaffirmed by the Charter of the United Nations, that all human beings have equal rights regardless' of race, color or creed, and that the right to liberty and the pursuit of happiness is inalienable and may not be infringed because of race, color or creed. To say that these statutes may stand in the face of the concept of liberty and equality embraced within the ambit of the above-mentioned fundamental law is to make of that concept an empty, hollow mockery.
The Declaration of Independence declares: “We hold these truths to be self evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; ...”
The Fifth Amendment to the Constitution of the United States provides that: “No person shall be deprived of life, liberty or property without due process of law. ’ ’
The Fourteenth Amendment to the Constitution of the United States provides: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within -its jurisdiction the equal protection of the laws.”
The Charter of the United Nations contains the following declaration: “We the Peoples op the United Nations determined : . . . to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the *733equal rights of men. and women and of nations large and small ... to promote social progress and better standards of life in larger freedom, . . . And for these ends ... to practice tolerance ...” (Preamble.) “. . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion ...” (Ch. I, art. I, § 3.)
In the face of these authoritative pronouncements the matter of race equality should be a settled issue. It is, at least, a settled issue so far as the fundamental law is concerned. And the only question before us is whether the Legislature may enact a valid statute in direct conflict with this fundamental law. It seems clear.to me that it is not possible for the Legislature, in the face of our fundamental law, to enact a valid statute which proscribes conduct on a purely racial basis. Such are the statutes here involved. The wisdom of the broad, liberal concept of liberty and equality declared in our fundamental law should be apparent to every unprejudiced mind.
The Apostle Paul declared that: “God . . . hath made of one blood all nations of men for to dwell on all the face of the earth, and hath determined the times before appointed, and the bounds of their habitation.” (The Acts of the Apostles, ch. 17, v. 26.)
Cedric Dover writes in his book “Half-Caste”: “Perhaps our Neanderthal ancestors arose from mixture between ape-men of the Ice Age. Perhaps our Neolithic prototypes emerged from relations between the Aurignacian invaders of Europe and the local Neanderthals. We shall be content with the knowledge that miscegenation has influenced human evolution from the earliest times, that there has not been a pure race of our species for at least ten thousand years.”
In a letter to Chastellux in 1785 Thomas Jefferson wrote: “I have supposed the black man, in his present state, might not be in body and mind equal to the white man; but it would be hazardous to affirm that, equally cultivated for a few generations, he would not become so. ’ ’ Notwithstanding this statement, Jefferson, who was the author of the Declaration of Independence, made it clear that the Negro is entitled to enjoy equally with others the “unalienable rights of life, liberty and the pursuit of happiness. ’ ’
The Declaration of Independence is a part of the law of our land. It is to be found as part of the Statutes at Large *734on page .1 of volume 1. It has been given effect as a legislative enactment (Inglis v. Trustees of the Sailor's Snug Harbor, 28 U.S. (3 Pet.) 99 [7 L.Ed. 617], and other cases cited in U.S.C.A., 1 Constitution, pp. 7, 8; Fidelity & Casualty Co. of New York v. Union Savings Bank Co., 29 Ohio App. 154 [163 N.E. 221]). It declares that: “All men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; . . .’’No one will question that, so far as petitioners are concerned, this case involves the pursuit of happiness in its clearest and most universally approved form.
It is a matter of law as well as historical knowledge that after the Revolution all men were not, in law, equal (Dred Scott v. Sanford, 19 How. (U.S.) 393 [15 L.Ed. 691]). But it is well to remember that men fought, bled, and died for the truth of the proposition.
In the Dred Scott case, supra, the truth of the proposition was questioned and denied in an opinion by Chief Justice Taney. It is again a matter of historical knowledge that this decision helped to kindle the fire which brought on the Civil War. In this war men fought, bled and died for their belief in the essential equality of man.
Abraham Lincoln, in his never-to-be-forgotten Gettysburg Address, told us, because he was speaking to the future as well as of the past, that “Pour score and seven years ago our fathers brought forth upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” He asked whether “ [A]ny nation, so conceived and so dedicated, can long endure.” The Civil War was supposed to definitely and conclusively answer that question. This being so, should a state, or even a number of states, legislate to destroy that ideal when great wars have been fought to preserve it? An ideal for which men gave their lives and the lives of their families should be a precious heritage to be carefully guarded. And yet all men are not now being given equal treatment!
The freedom to marry the person of one’s choice has not always existed, and evidently does not exist here today. But is not that one of the fundamental rights of a free people? Blackstone said that: “Liberty consists in being limited only by that Supreme Law which is the expression of abstract right.” If the right to marry is a fundamental right, then it must be conceded that an infringement of that right by *735means of a racial restriction is an unlawful infringement of one’s liberty. It is immaterial that perhaps only a few would wish to marry persons not of their own race or color. It is material that the few who do so desire have the right to make that choice. It is only ignorance, prejudice and intolerance which denies it. Since this state will recognize as valid a marriage performed in another state between members of these two races it follows that the marriage cannot be considered vitally detrimental to the public health, welfare and morals.
The Constitution of the State of California, article I, section 13, provides that no person shall be deprived of life, liberty or property without due process of law. Due process of law consists not only of the individual’s right to procedural due process, but his right to substantive due process—that the state, through legislation, shall not deprive him of one of his “liberties.”
Our Constitution, like the Constitution of the United States, is a restriction upon the powers of the state. Upon this court devolves the duty of guarding that Constitution and the rights it protects, as upon the Supreme Court of the United States devolves the duty of guarding the Constitution of the United States.
The student of constitutional law knows that the Civil War amendments to the Constitution did not accomplish their intended purpose, which was to create a real, over-all equality such, as the Declaration of Independence contemplated, and which such cases as the Dred Scott case prevented from being realized. (Waite, The Negro in the Supreme Court, 30 Minn. L.Rev. 219.)
In the years following the adoption of the Thirteenth, Fourteenth and Fifteenth Amendments, many courts still did not think that there was real equality among men despite the fact that the language of the amendments is quite clear. Another round of the vicious circle was begun, this time by limiting as far as possible the language of the amendments. Many eases might be cited to support this view, but the hardest blow to liberal minded persons—the biggest step backwards into days of slavery—was the decision in Plessy v. Ferguson, 163 U.S. 537 [16 S.Ct. 1138, 41 L.Ed. 256]. That case involved a Louisiana statute which provided that railroads must provide “equal but separate” accommodations for white and colored passengers, and that, under penalty, *736no member of either group should be .permitted to use the accommodations provided for the other. The Supreme Court upheld the statute, and laid down the rule that the state had power to make regulations of this kind “in good faith for the promotion of the public good.” The court also said that the question came down to the “reasonableness of the regulation.” (Plessy v. Ferguson, supra, p. 537.) By using that language, however, the Supreme Court left the door open for a future, more enlightened generation. For, if the reasonableness of the regulation is the only test, it may and will happen that a regulation was reasonable from the point of view of the Legislature enacting it and the court first passing on it. And yet, in the light of future developments, all the reasonableness may have been lost and the regulation may have reduced itself to a mere tool of oppression—a hangover from quaint and superstitious days of yore. There are enough statutes of this kind to fill periodically a column in Collier’s magazine. Most statutes thus rendered obsolete are not especially vicious, and most of them are not enforced. It is safe to assume that most of them would be struck down today if their constitutionality were challenged, because what once may have appeared reasonable has become an absurdity.
It is, of course, conceded that the state in the exercise of the police power may legislate for the protection of the health and welfare of the people and in so doing may infringe to some extent on the rights of individuals. But it is not conceded that a state may legislate to the detriment of a class—a minority who are unable to protect themselves, when such legislation has no valid purpose behind it. Nor may the police power be used as a guise to cloak prejudice and intolerance. Prejudice and intolerance are the cancers of civilization.
It is my position that the statutes now before us never were constitutional. When first enacted, they violated the supreme law of the land as found in the Declaration of Independence. It is further my position that the Fourteenth Amendment to the Constitution of the United States invalidated the statutes here involved. In a powerful dissent in Plessy v. Ferguson, supra, Justice Harlan said, at page 559: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. . . . The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme *737law of the land are involved . . . the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.” This language needs no elaboration. The time at which this judgment has become pernicious has arrived.
Even if I concede, which I do not, that the statutes here involved were at any time reasonable, they are no longer reasonable and therefore no longer valid today. The rule is that the constitutionality of a statute is not determined once and for all by a decision upholding it. A change in conditions may invalidate a statute which was reasonable and valid when enacted (Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405 [55 S.Ct. 486, 79 L.Ed. 949], 16 C.J.S. 150).
In this case, there are no decisions of either this court or the Supreme Court of the United States which uphold the validity of a statute forbidding or invalidating miseegenous marriages. As has been pointed out, even if there were precedent, it would not necessarily be binding in this case. The cases from other jurisdictions are, of course, not binding here. Under the test laid down by the United States Supreme Court in Plessy v. Ferguson, supra, the reasonableness of the regulation is therefore the decisive factor. And there are decisions rendered in this state which definitely point the way as to what is to be considered “reasonable” and in accord with the public policy of this state.
This court has upheld the validity of miseegenous marriages, so-called, when the marriage was entered into in a jurisdiction where no prohibition existed (Pearson v. Pearson, 51 Cal. 120, 125). Under the well-settled rules of the law of Conflict of Laws, this court could have denied validity to such marriages, provided they were “odious” to its own internal policy. It did not do so, and it has indicated in other holdings in which the problem of miscegenation was collaterally involved that it does not consider the internal policy of this state one which would lead it to refuse validity to such marriages (Rest. of Conflicts of Laws, § 132 (c)).
Some of the statutes of the type here under attack have been upheld as reasonably designed to prevent race rioting. The fact that this court grants recognition to foreign miscegenous marriages, valid where contracted, is enough to rebut that argument. Riots would either follow in both eases or in none. One author sums up the problem by asking: “Does this not mean that the miscegenation statute applies only to *738those who either have an inadequate knowledge of the law and/or cannot afford the train fare to a state where the attempted marriage would be valid?” (Tragen, 32 Cal.L.Rev. 269, 277.)
So far as the policy of this court is concerned, there is no basis for upholding the statutes. But it is said that it is not the policy of the court but that of the Legislature which should control. And there again, there are strong indications of legislative trends and intentions which point the way. So far as employment under public contracts is concerned, the laws of this state forbid discrimination based on color (Lab. Code, § 1735). So far as civil rights other than the right to marry are concerned, they are guaranteed by Civil Code, section 52. The statutes forbidding miseegenous marriages here under attack are further distinguished from statutes in other jurisdictions in that they are entirely declaratory, while all the others carry with them penalties for violation. This, too, would indicate an attitude of comparative indifference on part of the Legislature, and the absence of any clearly expressed public sentiment or policy.
The legislation here under attack is also sought to be sustained on the ground that a legislative enactment duly made and based on “some evidence” is presumptively valid. The general rule to that effect may be conceded. But it does not apply to a case of this kind. In cases involving discrimination, the rule is that laid down by the Supreme Court of the United States in Korematsu v. United States, 323 U.S. 214, 216 [65 S.Ct. 193, 194, 89 L.Ed. 194, 199], where the court speaking through Mr. Justice Black said: “. . . all legal restrictions which curtail the civil rights of a single racial group are immediately suspect . . . courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” That suspicion which attaches to cases involving discrimination is sufficient to overcome the presumption of validity and constitutionality normally present when a statute is attacked as unconstitutional.
Finally, the statute is sought to be upheld for “sociological” reasons. The evidence presented to sustain the statute and that tending to show it up as unreasonable falls into two groups. One is concerned with the social effect of such marriages on the parties and those close to them. That social ostracism may well result to the parties and perhaps their offspring, may be conceded. But that is something *739wMch the state is powerless to control and which it cannot prevent by legislation. It therefore furnishes no basis for legislation, either. It is something resting with the parties themselves, for them to decide. If they choose to face this possible prejudice and think that their own pursuit of happiness is better subserved by entering into this marriage with all its risks than by spending the rest of their lives without each other’s company and comfort, the state should not and cannot stop them.
The other aspect of the evidence adduced is the medico-eugenic one. A great deal has been written and said about the desirability or undesirability of racial mixtures. The writers seem to be in such hopeless conflict that their lack of bias may well be questioned. Suffice it to quote the following from petitioner’s brief:
1 ‘ The blood-mixing however, with the lowering of the racial level caused by it, is the sole cause of the dying-off of old cultures; for the people do not perish by lost wars, but by the loss of that force of resistance which is contained only in the pure blood.
1 ‘All that is not race in this world is trash. ’ ’
“The result of any crossing, in brief, is always the following: (a) lowering of the standard of the higher race, (b) physical and mental regression, and, with it, the beginning of slowly but steadily progressive lingering illness.”
“Every race-crossing leads necessarily sooner or later to the decline of the mixed product. The danger for the mixed product is abolished only in the moment of the bastardization of the last higher, racially pure element.”
“. . . [T]here is only one most sacred human right, and this right is at the same time the most sacred obligation, namely, to see to it that the blood is preserved pure, so that by its preservation of the best human material a possibility is given for a more noble development of these human beings.”
This quotation is from Hitler’s “Mein Kampf” as published in translation in New York in 1940. To bring into issue the correctness of the writings of a madman, a rabblerouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.
*740We may take judicial notice of the fact—since it is a political and historical fact—that steady inroads have been made on the myth of racial superiority and its outgrowths.
The rest of the world never has understood and never will understand why and how a nation, built on the premise that all men are created equal, can three times send the flower of its manhood to war for the truth of this premise and still fail to carry it out within its own borders.
In 1682, Lord Nottingham said in the course of an opinion: “Pray let us so resolve Cases here, that they may stand with the Reason of Mankind when they are debated abroad. Shall that be Reason here that is not Reason in any part of the World besides?" (Duke of Norfolk's Case, 3 Ch.Cas. 1, 33, 22 Eng.Repr. 931, 935.)
In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as “Reason in any part of the World besides."
EDMONDS, J.I agree with the conclusion that marriage is “something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. ’ ’ Moreover, it is grounded in the fundamental principles of Christianity. The right to marry, therefore, is protected by the constitutional guarantee of religious freedom, and I place my concurrence in the judgment upon a broader ground than that the challenged statutes are discriminatory and irrational.
In Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352] (1940), the United States Supreme Court, for the first time expressly held that, through the due process clause of the Fourteenth Amendment, a state statute may be declared invalid if it violates the specific guarantee of religious freedom as stated in the First Amendment. The consequences of that decision were forcefully stated by Mr. Justice Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 [63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674], as follows: “In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument of transmitting the principles of the First Amendment and *741those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a ‘rational basis’ for adopting. But freedom of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect.”
Reasonable classification, therefore, is not the test to be applied to a statute which interferes with one of the fundamental liberties which are protected by the First Amendment. The question is whether there is any ‘‘clear and present danger” justifying such legislation (Craig v. Harney, 331 U.S. 367, 372 [67 S.Ct. 1249, 91 L.Ed. 1546]; Pennekamp v. Florida, 328 U.S. 331, 333 [66 S.Ct. 1029, 90 L.Ed. 1295]; Cantwell v. Connecticut, supra, at p. 311; Herndon v. Lowry, 301 U.S. 242, 256 [57 S.Ct. 732, 81 L.Ed. 1066]; Schenck v. United States, 249 U.S. 47, 52 [39 S.Ct. 247, 63 L.Ed. 470]), and the burden of upholding the enactment is upon him who asserts that the acts which are denounced do not infringe the freedom of the individual. (Busey v. District of Columbia, 138 F.2d 592, 595.)
In the present case, the respondent does not claim that there is any clear and present danger justifying the restrictions imposed by sections 60 and 69 of the Civil Code. In 18 states, including New York, Illinois and Pennsylvania, where about 10 per cent of the Negroes of the United States reside, there are no such limitations. The population of California, to a large extent, is made up of people who have come to it from other sections of the country, and if there are undesirable consequences of interracial marriages, the challenged legislation is an ineffective means of meeting the problem.
The decisions upholding, state statutes prohibiting polygamy come within an entirely different category. In Reynolds v. United States, 98 U.S. 145 [25 L.Ed. 244], marriage was said to be, ‘‘from its very nature a sacred obligation,” but the conviction was sustained upon the ground that polygamy *742violates “the principles upon which the government of the people, to a greater or less extent, rests. ’ ’ Later, the court characterized the practice of polygamy as being “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world” (Church of Jesus Christ of L. D. S. v. United States, 136 U.S. 1 [10 S.Ct. 792, 34 L.Ed. 478]; see Davis v. Beason, 133 U.S. 333 [10 S.Ct. 299, 33 L.Ed. 637]). In effect, therefore, these eases rest upon the principle that the conduct which the legislation was designed to prevent constituted a clear and present danger to the well being of the nation and, for that reason, the statute did not violate constitutional guarantees.