379 U.S. 184 (1964)
Florida Statute § 798.05 provided that any Negro man and white woman, or any white man and Negro woman, who were not married to each other, would be punished if they habitually lived in and occupied in the nighttime the same room. Each would face imprisonment not exceeding twelve months or a fine not exceeding five hundred dollars.1
The appellants were charged with a violation of § 798.05. The trial judge instructed the jury that the elements of the offense were the habitual occupation of a room at night by a Negro and a white person who are not married.2 The State presented evidence going to each factor.3 The appellants' constitutional contentions were overruled and the jury returned a verdict of guilty.4
Chapter 798 of the Florida statutes, entitled Adultery and Fornication, contained several other sections of general application.5 Section 798.01 forbade living in adultery.6 Section 798.02 proscribed lewd cohabitation. Section 798.03 addressed fornication.7 Section 798.04 made it criminal for a white person and a Negro to live together in adultery or fornication.8
The Florida Supreme Court affirmed the convictions solely on the authority of Pace v. Alabama.9 The United States Supreme Court noted probable jurisdiction.10
Whether § 798.05 of the Florida statutes denies equal protection of the laws by applying only to an unmarried Negro and white person who habitually occupy the same room at night?11
Under the Equal Protection Clause of the Fourteenth Amendment, a racial classification embodied in a criminal statute is constitutionally suspect and subject to the most rigid scrutiny.12 Such a classification must rest upon some difference bearing a reasonable and just relation to the legislative purpose and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy.13
Yes. Section 798.05 applies exclusively to interracial couples and punishes habitual nighttime room occupation without any requirement of intercourse.14 This differs from the general provisions in sections 798.01 through 798.03 that apply to all persons and often demand proof of sexual relations.15 The State advanced the purpose of preventing breaches of sexual decency.16
Yet nothing in the record or statutory scheme indicates that interracial couples are more likely than same-race couples to engage in the prohibited conduct or that the racial line advances that purpose in any distinct way.17 The classification therefore lacks the required justification and cannot survive the strict scrutiny demanded for race-based criminal laws.18
Section 798.05 denies equal protection of the laws guaranteed by the Fourteenth Amendment and the convictions must be reversed.19
Related opinions on this issue
Joined by Justice Douglas
Justice Stewart concurred in the judgment but rejected any suggestion that an overriding statutory purpose could ever validate a criminal law making conduct illegal solely because of the race of the participants.20 He emphasized that the statute punished the appellants only because they were of different races.21 Such race-dependent criminality is invidious per se under the Equal Protection Clause.22
Stewart noted limited room for civil record-keeping statutes but found no constitutional space for criminal laws that turn on the race of the actor.23
Justice Harlan joined the Court's opinion and added that the cohabitation statute had not been shown to be necessary to the integrity of the assumed-valid antimarriage law.24 He stressed that necessity rather than mere reasonable relationship is the proper test when a statute trenches on interests protected by the Fourteenth Amendment.25 Harlan observed that the general, race-neutral provisions already addressed extramarital relations.26
This rendered the specific interracial cohabitation ban unnecessary whether viewed as ancillary to the marriage prohibition or as resting on an independent state interest.27