Mixed Race Studies

Assuming Responsibility for Who You Are: The Right To Choose “Immutable” Identity Characteristics

New York University Law Review
Volume 88, Number 1 (April 2013)
pages 373-400

Anthony R. Enriquez
New York University School of Law

Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.

• INTRODUCTION
• I. THE SOMETIMES-MUTABLE NATURE OF RACE AND SEX REVEALS INCONSISTENCIES IN EQUAL PROTECTION DOCTRINE
  • A. Mutable Race
  • B. Mutable Sex
• II. ASYLUM LAW’S DEFINITION OF IMMUTABILITY CURES INCONSISTENCIES IN EQUAL PROTECTION DOCTRINE
  • A. A Closer View of Asylum Law’s Fundamental Immutability
  • B. A Number of Courts Recognize that the Equal Protection Clause Protects the Individual’s Right to Choose Fundamental Characteristics of Identity
• III. SEXUAL ORIENTATION IS A FUNDAMENTAL CHARACTERISTIC OF IDENTITY
  • A. Asylum Law Holds That Sexual Orientation is a Fundamental Characteristic of Identity
  • B. The Fundamental Liberty to Engage in Same-Sex Sexual Conduct Reflects the Constitutional Understanding that Sexual Orientation is a Fundamental Characteristic of Identity
• CONCLUSION

INTRODUCTION

Gay rights advocates and opponents tend to hold distinct views on homosexuality’s origins. Advocates commonly contend that sexual orientation is not a choice,1 while at least one political opponent of gay rights has insisted that “[h]omosexuality . . . [is] about sexual freedom, and they hate to be called on [it].” Coming from the camps that they do, these hardline views of homosexuality as pre-determined compulsion or free choice might strike some as ironic: Liberation was once a watchword of the gay rights movement and freedom isn’t commonly thought of as a dirty word when used by political conservatives. Regardless of the accuracy of either claim, the portrayal of homosexuality as an inborn condition likely serves legally strategic ends. It brings gays one step closer to suspect class status under the Equal Protection Clause of the Fourteenth Amendment, potentially imperiling any law in the nation that treats gays as a class differently than non-gays. This is because a law that treats people differently based on their membership in a suspect class is subject to heightened judicial scrutiny and must be at least substantially related to an important government interest to avoid being struck down as unconstitutonal…

…A. Mutable Race

The traditional belief that race is an immutable characteristic dependent solely on birth is rooted in the idea that race is defined by lineage, physiognomy, and other physical characteristics. Accordingly, a person born to Black parents is Black, or a person with a certain eye shape, hair texture, or skin color is White. This absolutist view holds less force today, however, because a substantial number of Americans of mixed racial lineage present racially ambiguous physical characteristics. These people can choose a particular racial identity that differs depending on the particular social, professional, or legal context.

The law’s struggle to keep pace with the growing reality of racial self-identification is tied to the United States’s long history of racial subordination. Traditional absolute racial categorizations were essential to legal and social ordering in a society that divided rights by race, determining who was a person and who was property in antebellum America. Most American states prior to the Civil War implemented legal definitions of race, either statutory or judicially constructed, to codify underlying social understandings.

Still, long before contemporary trends of racial self-identification, the law acknowledged that racial identification was not shaped by lineage or physiognomy alone. In the decade leading up to the Civil War, for example, the Virginia legislature—facing increasing outside resistance to the use of slave labor and long prohibited from importing new slaves—debated a proposal to expand its enslaveable population by amending the state definition of Black from having one Black grandparent to having one Black ancestor at any time in history. Virginia’s legislative history provides but one example that race was never determined solely by birth; it was instead the combination of lineage and historically contingent, mutable social understandings which shape the meaning of that lineage, equating Black racial membership with a Black parent, a Black grandparent, or a distant Black ancestor, as the social context required.

Today, the United States government has essentially abandoned the practice of imposing racial identity on Americans, instead relying largely on voluntary self-identification to keep track of racial data. The government’s retreat has left Americans with two principal methods of racial categorization: voluntary self-identification and involuntary identification by third parties, a byproduct of social interaction resulting from an observer’s imposition of racial identity as associated with physiognomy. Voluntary racial self-identification is standard in the census, federal recordkeeping measures, and educational programs seeking to attract diverse entrants. Involuntary racial identification occurs when a third party presumptively correlates skin tone or other physical characteristics with an individual’s race.

For the majority of people, the presumption created by an onlooker’s perception will likely match an individual’s voluntary racial self-identification: Most people will likely accurately identify a person who self-identifies as White based on physical features alone. But for people of racially ambiguous physical characteristics, such as light-skinned Blacks and Latinos, voluntary racial identification is a regular phenomenon of social interaction. Extensive literature documents the accounts of light-skinned individuals who pass as White, voluntarily assuming racially coded patterns of speech and dress. The United States also has a storied legal history that records individuals’ attempts to manipulate racial identity through voluntary action, including one of the Supreme Court’s most infamous holdings: Plessy v. Ferguson.

Homer Plessy insisted in his petition to the Court “that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the White race by its Constitution and laws . . . .” Plessy’s claim was that the amount of “colored blood” he had—a singular Black grandparent—was so negligible that he was White. Today, modern Americans might assume someone with his physical characteristics—someone in whom “the mixture of colored blood was not discernable”—to be White. If Homer Plessy self-identified as Black and expressed it to others he could dispel that assumption, assuming belief of his claim. But he could just as easily keep silent and choose a White identity, or choose specific contexts in which to assert a White, Black, or mixed racial identity.

Here, it yields an absurd result to interpret the Court literally when it says that in order for a racial classification to be suspect, race must be an immutable characteristic traceable solely to birth: Because Plessy’s racial identity would be a matter of personal choice rather than dependant solely on birth, he would presumably fall outside of heightened scrutiny’s ambit. But “[r]acial discrimination . . . would not suddenly become constitutional if medical science developed an easy, cheap, and painless method of changing one’s skin pigment,” as one court has recognized; nor should it be constitutional as applied to the growing number of Americans who choose to identify as a particular race at their own discretion.

Just as indefensible is the suggestion that these Americans could avoid racial discrimination by keeping silent about their minority racial identity and passing as White. This would grant government the power to impose an individual’s racial identity by assigning a penalty to voluntary racial minority self-identification…

Read the entire article here.

Leo Branton Jr., Activists’ Lawyer, Dies at 91

The New York Times
2013-04-27

William Yardley

Associated Press Leo Branton Jr. with Angela Davis during her 1972 trial on murder, kidnapping and conspiracy charges. She was acquitted.

Leo Branton Jr., a California lawyer whose moving closing argument in a racially and politically charged murder trial in 1972 helped persuade an all-white jury to acquit a black communist, the activist and academic Angela Davis, died on April 19 in Los Angeles. He was 91.

His death was confirmed by Howard Moore Jr., another lawyer who represented Ms. Davis.

Mr. Branton, a black veteran of World War II who served in a segregated Army unit, represented prominent black performers, including Nat King Cole and Dorothy Dandridge, argued cases on behalf of the Black Panthers and the Communist Party, and filed numerous cases alleging police abuse. But the case with which he was most closely associated was that of Ms. Davis…

Read the entire obituary here.

Black, White, and Many Shades of Gray

Harvard Magazine
May-June 2013

Craig Lambert

Randall Kennedy probes the “variousness” of charged racial issues.

In The Bridge: The Life and Rise of Barack Obama, David Remnick relates a story from Obama’s first year at Harvard Law School, when he registered for “Race, Racism, and American Law,” a course taught by Randall Kennedy, now Klein professor of law. “Kennedy had caused some controversy, writing critically in The New Republic and elsewhere about some aspects of affirmative action,” Remnick relates. “At the first class, Obama [J.D. ’91] and [his friend Cassandra] Butts, [J.D. ’91] watched as a predictable debate unfolded between black students who objected to Kennedy’s critique and students on the right, almost all white, who embraced it. Obama feared a semester-long shout-fest. He dropped the course.” Thus Kennedy never taught the future president, although he did instruct Michelle LaVaughn Robinson [subsequently, Obama], J.D. ’88, who also did research for him.

A “semester-long shout-fest” may be hyperbolic, but Kennedy admits, “Yes, those classes were very contentious. I structured them that way.” It wasn’t hard: Kennedy, an African American himself, consistently introduced the kinds of racial issues—such as “reverse discrimination” against whites—that explode like hand grenades in an interracial classroom. “Should there be a right to a multiracial jury?” he asks, smiling. “Boom!”

Kennedy is “the kind of professor who thrives on iconoclasm, defying the embedded expectations of his students,” according to one of them, Brad Berenson, J.D. ’91, a member of the White House Counsel’s Office under George W. Bush and now a vice president of litigation and legal policy at General Electric. “Whether this comes from Randy’s convictions, or from playing devil’s advocate, it makes him hard to pin down or characterize. He’s a great example of the inquiring mind of an academic, someone who is willing to question dogmas and encourage his students to do the same.”…

… Two major themes run through Kennedy’s work. The title of his 2011 book on racial politics and the Obama presidency, The Persistence of the Color Line, summarizes the first. “The race question has been a deep issue in American life since the beginning and it continues to be a deep, volatile issue,” he says. “I’ve been most concerned about showing racial conflict as it affects the legal system, but you can also analyze how it manifests itself in literature, movies, patterns of dating and marriage, or housing.”

The second theme is that much commentary on race “can be boiled down to two schools of thought: optimistic and pessimistic. The pessimistic school believes that ‘We shall not overcome’—racial animus and prejudice are so deeply embedded that they will never go away. Thomas Jefferson, Abraham Lincoln, and Malcolm X fell into the pessimistic camp. The optimists, in contrast, feel that, notwithstanding the depth and horror of oppression, there are resources in American society that, deployed intelligently, will allow us to overcome. I put myself in that camp, along with Frederick Douglass, the great [nineteenth-century abolitionist] Wendell Phillips [A.B. 1831, LL.B. 1833], and Martin Luther King. I hope I don’t turn away from the horror, but also hope I try to be attentive to the real fact of change in American life.” …

Read the entire article here.

We Are Not Going To Go Away

“Colonial Williamsburg” Journal
Spring 2013

Andrew G. Gardner

Virginia’s Pamunkey Indians Greeted the Jamestown Settlers, but They Are Still Waiting for National Recognition

Beyond Virginia’s borders, the Pamunkey Indians are remembered, when they are remembered at all, mostly for a princess named Pocahontas. England’s Queen Elizabeth II probably knows more about the tribe than the average American: in 2007 she met a Pamunkey delegation during celebrations of Jamestown’s 400th anniversary.

When the 1607 colonists landed, the Pamunkey— 1,000 warriors strong—were the most powerful of the thirty-two tribes in the Powhatan paramount chiefdom, the loose association of Native Americans that dominated the Chesapeake region. Hunter gatherers, they looked to the woodlands for meat, clothing, and the stuff of shelter, fished the rivers, and grew such crops as maize, beans, and squash. Fifteen to twenty thousand people, the Powhatan commanded more than six thousand square miles, a territory that ranged leagues inland from the bay, all its tribes tributary to the Pamunkey chief Wahunsonacock, Pocahontas’s father. Now the Pamunkey domain amounts to a 1,200-acre King William County reservation twenty-five miles east of Richmond. There, thirty-four families—fewer than eighty people—make livings from renting out land for farming and duck hunting. About 120 more Pamunkey are scattered across the country.

Nevertheless, they are “a people who refused to vanish,” as historian Helen Rountree says. One of eight tribes Virginia recognizes, only they and their neighbors the Mattaponi established reservations, each secured by seventeenth-century treaties with Charles I and Charles II. In a 1677 compact, the Pamunkey agreed to pay to the governor a rent of “twentie beaver skinns” each autumn, a fee later amended to “Fin, Fur, or Feather.” They say that in 350 years they have not missed a payment of fish, wild turkey, or venison, these days ceremoniously delivered to the steps of the governor’s mansion in Richmond…

…The next century would bring them a new challenge— one that would have profound repercussions— repercussions felt today.

Walter Ashby Plecker was a medical doctor by training. Born ten days before the Civil War began—his father fought for the Confederacy—Plecker became Virginia’s first state public health officer, eventually administering its new Vital Statistics Office for more than thirty years. Plecker, a white supremacist, was an enthusiast for the popular late nineteenth-century pseudoscience eugenics. Eugenicists believed in the racial inferiority of all non-Caucasians, and promoted strict segregation to forestall the procreation of whites with African Americans and others.

In 1924, Virginia adopted the Racial Integrity Act, a statute that decreed but two possible racial classifications: white or “colored.” Plecker, who lobbied for the measure, wrote in 1925 of “the considerable number of degenerate white women giving rise to mulatto children.” Keeper of the state’s births, deaths, and marriages records, he used his office to advance his beliefs and the state’s stringent racial codes, enactments that outlawed black and white marriages. Plecker embraced an extralegal “one drop rule,” which held that anyone with so much as a drop of “black blood” in his or her veins should be classified black—which he did.

Virginia’s Indians were not the primary targets of the racial restrictions—they were classified with whites—but they, Pamunkey included, became the law’s and Plecker’s victims anyway. In Plecker’s mind there was no longer such thing as a “pureblood” Virginia Indian. To him, all were descended of unions with free blacks. Suspecting that blacks were trying to pass as Indians to gain white status, particularly in the Chickahominy tribe, he ordered the state’s records of Indians revised to classify them all as “colored.” The legislature, however, adopted a “Pocahontas exception.” Realizing that prominent Virginians claiming Indian descent, including from the Pamunkey princess, would be now be classified as “colored,” the lawmakers excused individuals of one-sixteenth or less Native American ancestry.

“In Plecker’s mind we simply just did not exist,” Chief Kevin Brown says. “It was paper genocide pure and simple. Administratively, he was wiping us off the map.”

In 1969 the Supreme Court of the United States threw out the Racial Integrity Act. But for the Pamunkey and the other Virginia tribes, Plecker’s obsession still has a sting in its tail…

Read the entire article here.

Hot Colors: Race, Sex, and Love

Harvard Magazine
March-April 2003

Craig Lambert

Tiger Woods, possibly the world’s best-known athlete, resists being called a “black” golfer. He coined the term “Cablinasian” (Caucasian, black, Indian, Asian) to identify his race, and used it on the Oprah Winfrey television show after winning the 1997 Masters tournament. Although Woods’s ancestry may be unusually diverse, his heritage is far less exceptional than his golfing skill, as professor of law Randall Kennedy makes clear in his new book, Interracial Intimacies (Pantheon). Five years in the making, the volume examines the history, lore, and especially the legalities, primarily in the United States, surrounding sexual, marital, and familial relationships among people of different races.

Racially mixed relationships are becoming more common. In the United States there are 1.5 million cross-racial marriages, a figure that has doubled about every decade. Forty percent of Asian Americans have married whites in recent years, as have 6 percent of blacks. “The general situation for people involved in interracial intimacies has never been better,” Kennedy writes. Most legal obstacles to pairing across races have been struck down, and Kennedy believes that even “public opinion now permits interracial intimacies to be pursued and enjoyed with unparalleled levels of freedom, security, and support.”…

…Yet Kennedy is neutral on the question of amalgamation—the view, advanced by many, including historian Will Durant and Harvard’s Beneficial professor of law, Charles Fried, that biological intermingling will eventually dissolve the race problem. “I’m not a biological determinist,” Kennedy declares. “If, in 50 years time, most whites still marry other whites and most blacks still marry other blacks, can we still have a racially decent society? Sure!”…

Read the entire article here.

In a first, black voter turnout rate passes whites

Associated Press
2013-04-29

Hope Yen

WASHINGTON (AP) — America’s blacks voted at a higher rate than other minority groups in 2012 and by most measures surpassed the white turnout for the first time, reflecting a deeply polarized presidential election in which blacks strongly supported Barack Obama while many whites stayed home.

Had people voted last November at the same rates they did in 2004, when black turnout was below its current historic levels, Republican Mitt Romney would have won narrowly, according to an analysis conducted for The Associated Press.

Census data and exit polling show that whites and blacks will remain the two largest racial groups of eligible voters for the next decade. Last year’s heavy black turnout came despite concerns about the effect of new voter-identification laws on minority voting, outweighed by the desire to re-elect the first black president.

William H. Frey, a demographer at the Brookings Institution, analyzed the 2012 elections for the AP using census data on eligible voters and turnout, along with November’s exit polling. He estimated total votes for Obama and Romney under a scenario where 2012 turnout rates for all racial groups matched those in 2004. Overall, 2012 voter turnout was roughly 58 percent, down from 62 percent in 2008 and 60 percent in 2004.

The analysis also used population projections to estimate the shares of eligible voters by race group through 2030. The numbers are supplemented with material from the Pew Research Center and George Mason University associate professor Michael McDonald, a leader in the field of voter turnout who separately reviewed aggregate turnout levels across states, as well as AP interviews with the Census Bureau and other experts. The bureau is scheduled to release data on voter turnout in May.

Overall, the findings represent a tipping point for blacks, who for much of America’s history were disenfranchised and then effectively barred from voting until passage of the Voting Rights Act in 1965.

But the numbers also offer a cautionary note to both Democrats and Republicans after Obama won in November with a historically low percentage of white supporters. While Latinos are now the biggest driver of U.S. population growth, they still trail whites and blacks in turnout and electoral share, because many of the Hispanics in the country are children or noncitizens…

Read the entire article here.

Black pols stymied in Obama era

Politico
2013-04-29

Jonathan Martin, Senior Political Reporter

More than five years after Barack Obama won the Iowa caucuses and demolished the notion that white voters wouldn’t support a black presidential candidate, progress for other African-American politicians remains elusive. Even as the country elected and reelected Obama, making it seem increasingly unremarkable to have a black family in the White House, African-Americans are scarce and bordering on extinct in the U.S. Senate and governorships.

The president is indeed exceptional — but in the wrong sense of the phrase as it applies to other black politicians.

Consider what has taken place, or not taken place, since Obama broke the presidential color barrier in 2008: There has not been one African-American elected to the Senate — the only blacks in the chamber were appointed to fill vacant seats; the country’s sole African-American governor, who was originally elected before Obama captured the presidency, won reelection but may leave the ranks of black governors empty when he leaves after 2013; and a cadre of promising, next-generation black politicians have either lost races (Washington Mayor Adrian Fenty, Reps. Kendrick Meek of Florida and Artur Davis of Alabama) or seen their careers extinguished because of scandal (former Rep. Jesse Jackson Jr.).

The situation is particularly embarrassing for Democrats, to whom black voters give the vast majority of their support. Until Sen. Mo Cowan (D-Mass.) was appointed in February, the only African-American in the Senate was a Republican — Sen. Tim Scott of South Carolina And it’s not lost on high-profile Democrats that the GOP now enjoys more ethnic diversity among its statewide leaders than the party whose president is both an illustration and a beneficiary of America’s changing face.

“We’re not there yet,” conceded Rep. John Lewis (D-Ga.). “That’s why when people ask me whether the election of President Obama is the fulfillment of Dr. King’s dream, I say, ‘No, it’s just a down payment. There’s still a lot of work to do.’”…

Read the entire article here.

On Being Brown in America

The New York Times
2013-04-25

Amitava Kumar, Writer and Professor of English
Vassar College, Poughkeepsie, New York

The recent bombings in Boston threw up many questions. One of the most pressing, in my somewhat narrow view, is the meaning of being brown in America.

On April 17, two days after the bombs went off during the Boston Marathon, killing three people and injuring almost 200 others, CNN’s John King went on air to say that the suspect was a “dark-skinned male.” In the CNN video, which shows that the time of the broadcast was 1.15 p.m. on Wednesday, we see King pointing to a photograph from the front-page of The New York Times. A positive identification had been made based on a surveillance video from a Lord & Taylor store just outside the frame of the picture in the Times, King said. A little later that afternoon, King would go on to assure viewers that a subsequent arrest had been made.

No one had been arrested that day, of course, and, alas, there was no dark-skinned male. What is remarkable is that even while first reporting his piece of “exclusive” news, CNN’s King felt it necessary to qualify what he was saying. The qualifications he offered were not about the haste with which he was sharing a piece of misinformation, or the bewildering lack of specificity in his description, or even the absence of adequate verification. Instead, his remarks appeared to suggest to his viewers that he couldn’t be more open with them because of politically correct sentiments that complicated open disclosures of “game changers” that the police had uncovered:

“I was told they have a breakthrough in the identification of the suspect, and I’m told — and I want to be very careful about this because people get very sensitive when you say these things — I was told by one of these sources who’s a law enforcement official that this was a dark-skinned male… The official used some other words. I’m not going to repeat them until we get more information because of the sensitivities. There are some people who will take offense even in saying that.”

Some people! Who are they?…

…You’ve heard the words of the old blues song: “They say if you’s white, should be all right, / If you’s brown, stick around, / But if you’s black, mmm mmm, brother, get back, get back, get back.” That old racial imaginary is changing. Brown is staining the edges of the racial divide. Richard Rodriguez has written, “Brown bleeds through the straight line, unstaunchable — the line separating black from white, for example.” If we are going to be optimistic, we can even say that brown is the color of the future.

A new book by a Boston-based academic and filmmaker, Vivek Bald, describes the formation of what he calls Bengali Harlem in the early decades of the last century. Starting with the migration of Bengali peddlers to the United States in 1880s, and a later group of seamen, mostly Muslims, in the 1930s and 1940s, those who came to this country didn’t establish separate ethnic enclaves like later immigrants. Instead, they formed “networks that were embedded in working-class Creole, African-American, and Puerto Rican neighborhoods and entwined with the lives of their residents.” This radical mixing and assimilation, Bald argues, is an unnoticed aspect of the history of U.S. immigration.

The invisible assimilation of working-class immigrants in that early phase has given way to an entirely different order of mixing in contemporary America. The attacks of Sept. 11 might have drawn a line in the sand, but the reality of sand is that it keeps shifting…

Read the entire article here.

Tries to Marry Quadroon

Los Angeles Herald
Volume 35, Number 31 (1907-11-02)
page 2, column 6
Source: California Digital Newspaper Collection

By Associated Press

YUMA, Ariz,, Nov. 1-M. G. Graff, aged 21 years, white, of Riverside, Cal., and Addle Burkhart, aged 20, were refused the office of marriage by Probate Judge Godfrey here today and the license issued them was destroyed on the girl’s confession that she is a quadroon.

Brown Man and Fiancee Can Not Get Knot Tied

San Francisco Call
Volume 107, Number 106 (1910-03-16)
page 3, column 5
Source: California Digital Newspaper Collection

Unfeeling Goldfield Sheriff Suggests a Hurried Departure

GOLDFIELD, Nev., March 15.—George Masaki, a Japanese gardener, and Juliette S. Schwann, both of Los Angeles, were unable to get a judge to make them man and wife here today. Masaki took out marriage license during the afternoon, but as soon as the sheriff found it out he hunted the couple up and escorted them to the railroad station, where he ordered them not to appear in Goldfield again. This action of the authorities was taken because of unpleasant publicity resulting from a recent case of miscegenation.

The couple took a train to Tonopah. The authorities in Tonopah have been warned.