Author’s note: Most of the facts in this story are taken from a 1998 law journal article by Prof. Gregory Michael Dorr. The article, titled “Principled Expediency,” can be accessed at the following URL: http://www.jstor.org/stable/846216.
Seventy years ago, a Chinese sailor named Ham Say Naim embarked on an American adventure.
Born in Canton, Ham sought a new life. In 1942, he boarded a British merchant vessel and sailed halfway around the globe to the United States of America.
Ten years later in Norfolk, Virginia, Ham met a white woman named Ruby Lamberth. The two fell in love.
Unfortunately, Virginia forbade interracial marriage under the Racial Integrity Act. To evade the anti-miscegenation law, Ham and Ruby drove to North Carolina to get married. They got married on June 26, 1952, at 1:55 p.m. That same day, at 4:00 p.m., they were back in Norfolk, Virginia.
It might have made for a fairytale romance.
Alas, back in 1952, America was a different country. And the couple soon encountered difficulties: Ham was often out at sea, his visa was expiring, and he was having trouble getting naturalized as an American citizen—unsurprising since the 1924 Immigration Act restricted the flow of new citizens from non-European nations. Although Ham and Ruby exchanged heartfelt love letters, their marriage faced external pressures.
In 1953, fifteen months after tying the knot, Ruby decided to end the marriage.
Under Virginia law, a marriage between people of different races performed outside Virginia was as invalid as one done in Virginia. Citing the Racial Integrity Act, the Virginia courts declared the Naims’ marriage to be void.
In a bid to save his marriage, Ham appealed the decision, but it was upheld by the Virginia Supreme Court. Eventually, Ham was forced to appeal to the U.S. Supreme Court—arguing that Virginia’s anti-miscegenation law was unconstitutional. Some legal dramas ensued, but in 1956, the Supreme Court conclusively refused to hear Ham’s case.
Why didn’t the Supreme Court help Ham? Three reasons stand out.
First, the Supreme Court had decided Brown v. Board of Education only two years earlier. Racial tensions were on the rise, and America could only absorb one civil rights bombshell at a time. In this vein, judicial clerks for three judges suggested that the Supreme Court could not afford to risk a popular backlash: “In view of the difficulties engendered by the segregation cases, it would be wise judicial policy to duck this question for a time.”
Second, although Chief Justice Earl Warren and three other judges wanted to hear Naim v. Naim, the five remaining judges—Harlan, Minton, Clark, Burton, and Frankfurter—did not. The nine judges discussed Ham’s case in conference in 1956, and after numerous preliminary votes, decided 5-to-4 to reject the case. Lacking a majority, there was little that Earl Warren could do.
And third, Naim v. Naim involved a marriage between a Chinese man and a white woman. For the Supreme Court to uphold the marriage—especially if the white woman now wanted out—would probably have angered many people who had mixed feelings about immigrants.
Faced with these political headwinds, the Supreme Court made the difficult decision to reject Ham’s case.
But eleven years later, in 1967, the Supreme Court faced another interracial marriage case: Loving v. Virginia—which involved the same Racial Integrity Act that had befuddled Ham. But this time, the Court agreed to hear the case, because unlike Naim v. Naim, the stars were perfectly-aligned to decide Loving v. Virginia. Again, three reasons stand out.
First, the Supreme Court faced an easier political situation in 1967. The Civil Rights Act had been passed only three years earlier, and Martin Luther King, Jr. was by then an American hero. Despite difficulties, America was on the road to racial equality.
Second, Chief Justice Earl Warren had finally assembled a majority coalition on the Supreme Court. Justices Clark and Harlan had switched sides. Burton and Frankfurter were dead. Minton had retired. And with three new judges, Chief Justice Warren was able to strike down the anti-miscegenation laws by a unanimous 9-to-0 vote.
And third, Loving v. Virginia involved a marriage between a white man and a black woman. Most anti-miscegenation laws operated with the assumption of “protecting” white womanhood, and Richard Loving’s decision to marry a black woman did not contradict the general grain of popular prejudice as much as, say, a black man marrying a white woman.
Richard and Mildred Loving were sympathetic victims—making them perfect heroes for the civil rights movement. And the rest is history: Loving v. Virginia has been hailed as a major victory for racial equality (which it is). Loving v. Virginia has been commemorated in movies, songs, documentaries, books, and newspaper articles. And when Mildred Loving died in 2008, her picture and story made both the New York Times and the Washington Post.
In contrast, America has largely forgotten Ham Say Naim. Outside a handful of constitutional law classes, few people know about Naim v. Naim. Unfortunately, the records show little indication of what happened to Ham after he lost his case. Neither do we know whether he is still alive, or whether he has any descendants. And the story of Ruby Elaine Naim too has disappeared into oblivion. History prefers to remember victors, not victims.
None of this is meant as a criticism of Chief Justice Earl Warren or the Justices of the Supreme Court. They were honest judges who cared about promoting justice during a tumultuous time. And they did their best, using whatever clumsy tools they had at their disposal, to fight against institutionalized racism at every practical opportunity. If the broader interests of the civil rights movement demanded that Ham Say Naim’s happiness be sacrificed, then the Supreme Court’s decision to wait eleven years to strike down anti-miscegenation laws was a difficult, but pragmatic choice.
Chris Seck is a 3L. His column runs on Wednesdays
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