Mixed Race Studies

Loving v. Virginia as a Civil Rights Decision

New York Law School Law Review
Volume 59, Number 1 (2014/2015)
pages 175-209

Dorothy E. Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights
University of Pennsylvania

Loving v. Virginia, the unanimous U.S. Supreme Court decision that invalidated state laws restricting interracial marriage, marked the tail end of the civil rights cases of the 1950s and ’60s. Loving was not issued until 1967, more than a decade after the Court’s decision in Brown v. Board of Education, holding racial segregation of public schools unconstitutional. At the time of the 1963 March on Washington, nineteen states still had laws prohibiting interracial marriage, and federal jurisprudence upholding these laws had remained the same since 1883.

Civil rights litigators waited so long to launch an attack on state anti-miscegenation statutes in federal court because interracial marriage seemed at once so trivial and so controversial. Trivial because it involved interpersonal relationships rather than the weighty public rights to equal education, voting, and employment. But challenging the marriage laws also struck at the bedrock of racism: Classifying human beings into supposedly biological races that should be kept apart. Some civil rights advocates, as well as justices on the Warren Court, feared that attacking anti-miscegenation too soon was doomed to fail and would threaten the implementation of recent civil rights victories because white Southerners’ loathing of racial intermingling was so basic to their dogma of racial separation. After all, a primary reason for segregated schooling was to foreclose the interracial intimacy that might be sparked in integrated classrooms. Moreover, prior to Loving, state control over marriage was absolute.

Loving was the capstone of the Court’s blow to the Jim Crow regime. As the Court stated, it struck down the Virginia law because it was a measure “designed to maintain White Supremacy.” Yet subsequent decades have faded the understanding of Loving as a civil rights decision. While Brown became the emblem of the end to de jure segregation, Loving fell into relative obscurity. In his recent book, The Civil Rights Revolution, constitutional law scholar Bruce Ackerman denies that Loving “deserves a central place in the civil rights canon.” The same-sex marriage movement revived the decision to stand for the right to marry the partner of one’s choice. In 2007, on the occasion of the fortieth anniversary of the Loving decision, Mildred Loving commented:

I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Today, Loving is remembered more for protecting the right to marry than for toppling the final pillar of the de jure racial caste system in the United States. Moreover, to the extent that federal courts rely on Loving as a civil rights decision, they have largely distorted its reasoning, as well as its significance to the struggle to end racism and white domination.

This article aims to revive Loving as a civil rights decision, and to stress the continuing importance of its recognition of the relationship between racial classifications and white supremacy. Part I places the Lovings’ lawsuit in the context of the litigation agenda that helped institute the civil rights revolution. Jim Crow restrictions on marriage implemented the combined white supremacist and eugenicist ideologies of an innate racial hierarchy that called for racial separation. Both civil rights lawyers and U.S. Supreme Court justices delayed tackling state anti-miscegenation laws for strategic reasons. But they understood these laws as part of the Jim Crow segregationist system that the civil rights movement was dismantling and kept their abolition as an eventual goal.

Part II analyzes the Loving decision as a challenge to racism and white supremacy as much as the validation of marriage rights—and the entangled relationship between the two in the Court’s constitutional reasoning. Just as bans on interracial marriage were an essential part of the segregationist regime, eliminating them was an integral chapter in the series of civil rights decisions issued by the Warren Court. A central question in Loving was whether the Court would extend the holding in Brown from the realm of public education to state laws regulating marriage. By applying Brown’s prohibition of racial separation to the private sphere of marriage, formerly seen as the exclusive domain of states’ power, the Court radically confirmed a constitutional mandate for federal intervention in all aspects of the nation’s racial regime.

Part III evaluates how federal courts have interpreted the civil rights dimension of Loving in the decades that followed. I argue that key U.S. Supreme Court decisions have perverted the central lesson of Loving. Rather than link racial classifications to political subordination (as the Loving Court did), subsequent Court opinions have wrongly relied on Loving to do just the opposite. Loving has been misused to support a colorblind approach to the Fourteenth Amendment that treats the government’s use of race to eliminate the contemporary vestiges of Jim Crow as contemptible as the Jim Crow classifications designed to enforce white rule.

Finally, Part IV explains why the lessons of Loving as a civil rights decision are especially important in today’s supposedly “post-racial” society. A new biopolitics of race is resuscitating the notion of biological racial classifications underlying the anti-miscegenation laws that Loving struck down. Genomic science and gene-based biotechnologies are promoting race-consciousness at the molecular level at the very moment the Court and many policymakers believe race-consciousness is no longer necessary at the social level. I conclude that it is more urgent than ever to understand race as a political system that determines individuals’ status and welfare, and for federal courts to implement, uphold, and enforce strong race-conscious remedies for the lasting legacy of slavery that the Fourteenth Amendment was intended to abolish and civil rights activists fought to eradicate…

Read the entire article here.

What if the Court in the Loving Case Had Declared Race a False Idea?

The New York Times
2017-03-06

Brent Staples

Mildred Loving greeting her husband Richard on their front porch in Virginia. Credit Estate of Grey Villet

Gov. Terry McAuliffe of Virginia struck a resonant historical note last year when he proclaimed June 12 “Loving Day,” in commemoration of Loving v. Virginia, the 1967 Supreme Court decision that invalidated state laws across the country that restricted interracial marriage.

That Virginia would celebrate the decision was symbolically rich, given that Richmond had been the capital of the Confederacy under Jefferson Davis and the seat of a virulently racist legislature that diligently translated white supremacist aspirations into law.

The Loving decision turns 50 this summer, which will give the annual festivals, picnics and house parties held in its honor a special gravity. But the recent re-emergence of white supremacist ideology in political discourse lends an inescapably political cast to this celebration of interracialism.

As this drama unfolds, historians and legal scholars are criticizing aspects of the Loving decision, including the court’s failure to repudiate the myth of white racial “purity” upon which Virginia’s statute was based…

Read the entire article here.

Race, Space, and the Law: Unmapping a White Settler Society

Between The Lines
April 2002
320 pages
Paperback ISBN: 9781896357591

Edited by:

Sherene Razack, Distinguished Professor of Gender Studies
University of California, Los Angeles

Race, Space, and the Law belongs to a growing field of exploration that spans critical geography, sociology, law, education, and critical race and feminist studies. Writers who share this terrain reject the idea that spaces, and the arrangement of bodies in them, emerge naturally over time. Instead, they look at how spaces are created and the role of law in shaping and supporting them. They expose hierarchies that emerge from, and in turn produce, oppressive spatial categories.

The authors’ unmapping takes us through drinking establishments, parks, slums, classrooms, urban spaces of prostitution, parliaments, the main streets of cities, mosques, and the U.S.-Canada and U.S.-Mexico borders. Each example demonstrates that “place,” as a Manitoba Court of Appeal judge concluded after analyzing a section of the Indian Act, “becomes race.”

Contents

• Introduction: When Place Becomes Race / Sherene H. Razack
• Chapter 1: Rewriting Histories of the Land: Colonization and Indigenous Resistance in Eastern Canada / Bonita Lawrence
• Chapter 2: In Between and Out of Place: Mixed-Race Identity, Liquor, and the Law in British Columbia, 1850-1913 / Renisa Mawani
• Chapter 3: Cartographies of Violence: Women, Memory, and the Subject(s) of the “Internment” / Mona Oikawa
• Chapter 4: Keeping the Ivory Tower White: Discourses of Racial Domination / Carol Schick
• Chapter 5: Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George /Sherene H. Razack
• Chapter 6: The Unspeakability of Racism: Mapping Law’s Complicity in Manitoba’s Racialized Spaces / Sheila Dawn Gill
• Chapter 7: Making Space for Mosques: Struggles for Urban Citizenship in Diasporic Toronto / Engin F. Isin and Myer Siemiatycki
• Chapter 8: The Space of Africville: Creating, Regulating, and Remembering the Urban “Slum” / Jennifer J. Nelson
• Chapter 9: Delivering Subjects: Race, Space, and the Emergence of Legalized Midwifery in Ontario / Sheryl Nestel
• Notes
• Bibliography
• Index
• Contributors

Native American Tribal Disenrollment Reaching Epidemic Levels

VOA News
2017-03-03

Cecily Hilleary

FILE – Protesters hold hands in prayer in Temecula, Calif., at a rally protesting the disenrollment of tribal members, Saturday, May 21, 2005. More than a hundred ousted members of tribes from California and five other states gathered to denounce being disenrolled.

All across Indian Country, Native Americans are being evicted from their tribes, with little warning and little legal recourse.

Take, for example, the Pechanga Band of Luiseno Mission Indians, a federally-recognized tribe of Luiseno Indians living on a reservation in Temecula, California, part of the territory where their ancestors lived for 10,000 years.

If you want to be a member, you must prove direct lineage to one or more of the original ancestors forced onto the reservation in the early 1880s.

Pechanga Indian Rick Cuevas traces his ancestry to a woman named Paulina Hunter, who was granted a lot of land on the Pechanga reservation in the late 1800s. He and his family have lived on the reservation as full tribal members for decades.

But in the early 2000s, the tribal council decided to posthumously disenroll Hunter and, by extension, about 180 of her descendants…

…An alien concept

Disenrollment is not native to indigenous cultures, who Galanda said traditionally understood “belonging” in terms of kinship and personal choice, not “blood quantum,” a measurement introduced by the U.S. government.

“The U.S. introduced its concept of who’s an Indian by declaring, under the Indian Reorganization Act of 1934, that an Indian must be in residence in a reservation likely established by the treaties of the 1800s and be of one-quarter Indian blood,” he said. “The challenge today is that many tribes, if not most tribes, use the Federal government’s criteria for who’s an Indian.”…

Read the entire article here.

I Thought I Was Prepared to Marry a Black Man, But I Had NO Idea

For Every Mom
2017-03-05

Chelsie Dort

I had no idea what racism was until I married a black man.

It was a little over two and a half years ago, right before I was about to be married that I was asked the question, “Are you prepared for what you and your family will experience seeing as how you are marrying a black man?” Being a white girl raised in Salt Lake City, Utah I was offended. The man I was speaking with took notice to my offense and simply said “I don’t mean to hurt you, I just wanted to make sure that you were aware that things will be different than I think you are expecting. Things will be harder.” I explained that I was fine and that things were going to be great.

Two and a half wonderful years later, our son is now 5 and our youngest is almost 2 and the woman that I am now often looks back at that day and wishes I could have understood what he meant. I wish I would have understood that my husband would be pulled from his car and handcuffed, placed face down on the ground and arrested while I watched his helpless face, all because he had recently expired tags on his car. I wish I would have known that people would accuse my husband of kidnapping our oldest son because he’s white while simultaneously praising me for being a saint who graciously adopted a little black boy. I wish I would have understood the mean words that can escape someone’s lips when speaking about our mixed little family and the heartache that follows. I wish I would have used that time to consider how I would explain to my boys why people weren’t always nice…

Read the entire article here.

Get Out Perfectly Captures the Terrifying Truth About White Women

Cosmopolitan
2017-02-28

Kendra James
New York, New York

Blumhouse Productions

There are many scary things about the movie, but scariest of all is its realistic depiction of racism.

Major spoilers ahead.

In Get Out, writer-director Jordan Peele takes 90 minutes to meditate on a lesson Kim Kardashian once spelled out for America via snake emojis and Taylor Swift: White women are not to be trusted.

I’ll let you decide how offended you want to be by that thesis while I spoil the hell out of this movie.

Get Out draws on the terrifying elements you might expect to find in your typical February horror movie release. There’s hypnotism, multiple jump-scares, a Deliverance-style redneck, and an illicit basement surgery where a doctor operates on people’s brains without their consent. As scary as any of these things are, they’re tropes we can all recognize as pure fiction, for the most part. They’re things we’re still more likely to run into in film, books, or television rather than in our everyday lives.

Unfortunately, the horrors of racism and white womanhood aren’t confined to imagination and pop culture. In using both realities in his movie, Peele brings Get Out to a higher level of horror, at least for any person of color in the audience. We’re all keenly aware of how possible it is…

…Jordan Peele is married to and expecting a child with a white woman, Brooklyn Nine-Nine’s Chelsea Peretti. He’s also biracial; his mother is white. But as he reaffirms in his latest Nerdist interview with Chris Hardwick, Peele sees himself — and experiences the world — as a black man. American history is littered with the bodies of black men jailed, beaten, and killed due to the simple words of white women. “A few months later… two negro boys, ages 8 and 9 were arrested, tried, and sent to reform school for allegedly kissing or allowing themselves to be kissed by a neighborhood playmate, a 7-year-old white girl!” Langston Hughes wrote in 1962. ..

Read the entire review here.

The invention of ‘Hispanics’ created a political force of 27 million strong

Timeline
2017-03-02

Heather Gilligan, Senior Editor

Cesar Chavez (left), leader of the National Farm Workers Association, stands with a group of striking workers in Delano, California, in 1975. (Ted Streshinsky/Getty Images)

Before 1970, they were considered white by the government

On a California morning in 1969, as dawn outlined the nearby mountain ridges in purple, a pickup truck bounced down a dirt road in the Coachella Valley, filled with activists urging farmhands still picking grapes to join a statewide strike for higher wages. “These workers are so afraid of their employers,” labor organizer Dolores Huerta explained to The New York Times.

Meanwhile, on the East Coast, against a backdrop of overcrowded tenements in Spanish Harlem, a radical group of 20-something Puerto Ricans protested unsanitary living conditions by blocking Third Avenue with a garbage fire. The trash they burned had sat on the curb for days, creating a veritable rat-topia, as garbage trucks rumbled along, cleaning up regularly in richer, whiter neighborhoods.

Puerto Ricans and Mexicans like these faced many of the same hardships—including the high rates of poverty that went hand in hand with their experience employment discrimination, dilapidated housing, and substandard schools that were ill-equipped to deal with Spanish-speaking students—but what they lacked was a cohesive political identity, an identifiable voting bloc…

Read the entire article here.

2017 PEN/Joyce Osterweil Award For Poetry

PEN America
2017-01-18

Winner

Natalie Scenters-Zapico, The Verging Cities (Center For Literary Publishing/Colorado State University)

The PEN/Joyce Osterweil Award for Poetry of $5,000 is given in odd-numbered years and recognizes the high literary character of the published work to date of a new and emerging American poet of any age and the promise of further literary achievement…

Read the entire article here.

ARMOR: Biracial in the Deep South – a documentary about biracial life in the American South with filmmaker Sarah Gambles, Ep. 107

Multiracial Family Man
2017-03-05

Alex Barnett, Host

Ep. 107: Sarah Gambles is a Hawaiian-born, Biracial (Black-White), filmmaker with family ties in her current home state of Alabama.  After years of teaching, Sarah returned to her creative roots, launching her own production company, SarahFinah Films.  Under the umbrella of that production company, she has now created a new film ARMOR: Biracial in the Deep South – a look at the Biracial population in America’s South, the fastest growing, yet most underrepresented demographic in that region.

Listen as Sarah speaks with Alex about her own life and experience.  Her journey from creative pursuits into teaching and back to filmmaking.  And, her hopes and expectations about the role her film can play in educating people about the Multiracial experience.  Don’t miss it!

Listen to the episode here. Download the episode here.

What Biracial People Know

Sunday Review
The New York Times
2017-03-04

Moises Velasquez-Manoff

Lynnie Z.

After the nation’s first black president, we now have a white president with the whitest and malest cabinet since Ronald Reagan’s. His administration immediately made it a priority to deport undocumented immigrants and to deny people from certain Muslim-majority nations entry into the United States, decisions that caused tremendous blowback.

What President Trump doesn’t seem to have considered is that diversity doesn’t just sound nice, it has tangible value. Social scientists find that homogeneous groups like his cabinet can be less creative and insightful than diverse ones. They are more prone to groupthink and less likely to question faulty assumptions.

What’s true of groups is also true for individuals. A small but growing body of research suggests that multiracial people are more open-minded and creative. Here, it’s worth remembering that Barack Obama, son of a Kenyan father and a white Kansan mother, wasn’t only the nation’s first black president, he was also its first biracial president. His multitudinous self was, I like to think, part of what made him great — part of what inspired him when he proclaimed that there wasn’t a red or blue America, but a United States of America.

As a multiethnic person myself — the son of a Jewish dad of Eastern European descent and a Puerto Rican mom — I can attest that being mixed makes it harder to fall back on the tribal identities that have guided so much of human history, and that are now resurgent. Your background pushes you to construct a worldview that transcends the tribal…

…Consider this: By 3 months of age, biracial infants recognize faces more quickly than their monoracial peers, suggesting that their facial perception abilities are more developed. Kristin Pauker, a psychologist at the University of Hawaii at Manoa and one of the researchers who performed this study, likens this flexibility to bilingualism…

Early on, infants who hear only Japanese, say, will lose the ability to distinguish L’s from R’s. But if they also hear English, they’ll continue to hear the sounds as separate. So it is with recognizing faces, Dr. Pauker says. Kids naturally learn to recognize kin from non-kin, in-group from out-group. But because they’re exposed to more human variation, the in-group for multiracial children seems to be larger.

This may pay off in important ways later. In a 2015 study, Sarah Gaither, an assistant professor at Duke, found that when she reminded multiracial participants of their mixed heritage, they scored higher in a series of word association games and other tests that measure creative problem solving. When she reminded monoracial people about their heritage, however, their performance didn’t improve. Somehow, having multiple selves enhanced mental flexibility…

Read the entire article here.