McLaughlin v. Florida/Concurrence Harlan

Mr. Justice HARLAN, concurring.

I join the Court's opinion with the following comments.

I agree with the Court that the cohabitation statute has not been shown to be necessary to the integrity of the antimarriage law, assumed arguendo to be valid, and that necessity, not mere reasonable relationship, is the proper test, see ante, pp. 195-196. NAACP v. Alabama, 377 U.S. 288, 307-308, 84 S.Ct. 1302, 1313-1314, 12 L.Ed.2d 325; Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574; Martin v. Struthers, 319 U.S. 141, 147, 63 S.Ct. 862, 865, 87 L.Ed. 1313; Thornhill v. Alabama, 310 U.S. 88, 96, 60 S.Ct. 736, 741, 84 L.Ed. 1093; Schneider v. State, 308 U.S. 147, 161, 162, 164, 60 S.Ct. 146, 150, 151, 152, 84 L.Ed. 155; see McGowan v. Maryland, 366 U.S. 420, 466-467, 81 S.Ct. 1101, 1157, 6 L.Ed.2d 393 (Frankfurter, J., concurring).

The fact that these cases arose under the principles of the First Amendment does not make them inapplicable here. Principles of free speech are carried to the States only through the Fourteenth Amendment. The necessity test which developed to protect free speech against state infringement should be equally applicable in a case involving state racial discrimination prohibition of which lies at the very heart of the Fourteenth Amendment. Nor does the fact that these cases all involved what the Court deemed to be a constitutionally excessive exercise of legislative power relating to a single state policy, whereas this case involves two legislative policies-prevention of extramarital relations and prevention of miscegenation-effectuated by separate statutes, serve to vitiate the soundness of the Court's conclusion that the validity of the State's antimarriage law need not be decided in this case. If the legitimacy of the cohabitation statute is considered to depend upon its being ancillary to the antimarriage statute, the former must be deemed 'unnecessary' under the principle established by the cited cases in light of the nondiscriminatory extramarital relations statutes. If, however, the interracial cohabitation statute is considered to rest upon a discrete state interest, existing independently of the antimarriage law, it falls of its own weight.