Skip to main content Accessibility help
  • Print publication year: 2012
  • Online publication date: July 2012

5 - Perez v. Sharp and the Limits of Loving


At the center of In re Marriage Cases, the 2008 California Supreme Court decision that attracted national attention for temporarily extending marriage rights to same-sex couples, was a little-known 1948 case called Perez v. Sharp. The first post-Reconstruction case to invalidate an antimiscegenation law, Perez involved plaintiffs who were as courageous as any involved in landmark civil rights cases. Andrea Perez, the daughter of Mexican immigrants, and Sylvester Davis, the product of African-American migrants from the deep South, met while working on an assembly line in World War II, Los Angeles. They fell in love and decided to marry. But when the couple went to get a marriage license, the county clerk informed them that Andrea could not legally marry a black man. California’s antimiscegenation law technically did not constrain the marriage choices of Mexican Americans. In fact, it made no mention of them at all. But, in California, Mexicans had long been regarded as white and thus prohibited from marrying African Americans, among other groups.

With the aid of a civil rights attorney, Dan Marshall, Andrea and Sylvester decided to fight the clerk’s refusal to issue them a marriage license, putting together a legal case that would shake the foundations of California’s carefully constructed racial hierarchy and ultimately pave the way for the U.S. Supreme Court’s decision in Loving v. Virginia nearly twenty years later. Outside the small community of lawyers and activists who, in recent years, have relied on Perez in litigating cases seeking to secure equal marriage rights for gay and lesbian couples, few people have even heard of Andrea and Sylvester or the important legal decision their case produced. For the most part, Perez’s greatest claim to fame has been a footnote mention in Chief Justice Warren’s much-celebrated majority opinion in Loving. To the extent it has been considered at all, it has primarily been treated as a stepping-stone to the Loving decision, as a case that merely underscores Loving’s core holding, not one capable of communicating important lessons in its own right.

Pascoe, PeggyMiscegenation Law, Court Cases, and Ideologies of “Race” in Twentieth-Century America 83 J. Am. Hist.44 1996
Lenhardt, R. A.Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage 96 Cal. L. Rev.839 2008
Lenhardt, R. A. 2007
Wallenstein, Peter 2002
Moran, Rachel 2001
Harris, Cheryl I.In the Shadow of Plessy, U. Pa. J. Const. L.867 2005
Davis, Peggy Cooper 1997
Field, Ben 2003
Pull, Joseph A.Questioning the Fundamental Right to Marry 90 Marq. L. Rev.21 2006
Kennedy, Randall 2003
Johnson, Kevin R.Struck by Lightning? Interracial Intimacy and Racial Justice 25 Hum. Rts. Q.528 2003
Sunstein, Cass R.Homosexuality and the Constitution 70 Ind. L.J1 1994
Kennedy, RandallLecture, Race Relations Law in the Canon of Legal Academia 68 Fordham L. Rev.1985 2000
Omi, MichaelWinant, Howard 1994
López, Ian Haney 2006
Gomez, Laura 2007
Sunstein, Cass. R.Liberty After Lawrence 65 Ohio St. L. J.1059 2004
Mauldon, JaneFamily Change and Welfare Reform 36 Santa Clara L. Rev.325 1996
Sunstein, Cass R.The Right to Marry 26 Cardozo L. Rev.2081 2005
Tribe, Laurence H. 2004
Shklar, Judith N. 1991
Connecticut, Griswold v. 1965
Lenon, Suzanne J.Marrying Citizens! Raced Subjects? Re-thinking the Terrain of Equal Marriage Discourse 17 Canadian J. Women & L. / Revue Femme et Droit405 2005
Cruz, David B.“Just Don’t Call It Marriage”: The First Amendment and Marriage as an Expressive Resource 74 S. Cal. L. Rev.925 2001
Karst, Kenneth L. 1989
Franke, Katherine M.Becoming a Citizen: Reconstruction Era Regulation of African American Marriages 11 Yale J.L. & Human.251 1999