Same-Sex Issue Pushes Justices Into Overdrive

Posted in Articles, Gay & Lesbian, Law, Media Archive, United States on 2012-12-11 02:32Z by Steven

Same-Sex Issue Pushes Justices Into Overdrive

The New York Times
2012-12-09

Adam Liptak, Supreme Court Correspondent

In the civil rights era, the Supreme Court waited decades to weigh in on interracial marriage. On Friday, by contrast, the court did not hesitate to jump into the middle of one of the most important social controversies of the day, agreeing to hear two cases on same-sex marriage.

By taking both, the court gave itself the chance to issue a sweeping ruling that would cast aside bans on same-sex marriage nationwide. But the speed with which the court moved also raised the possibility of a split decision, one that would provide federal benefits to same-sex couples married in states that allow such unions but would permit other states to forbid gay and lesbian couples from marrying…

…In private correspondence in 1957, Justice Felix Frankfurter said the court was doing all it could to avoid hearing cases that would require giving the nation an answer about whether bans on interracial marriage — anti-miscegenation laws, in the parlance of the day — were constitutional.

“We twice shunted it away,” Justice Frankfurter wrote to Judge Learned Hand, “and I pray we will be able to do it again without being too brazenly evasive.”

Judge Hand responded that “I don’t see how you lads can duck it.”

But Justice Frankfurter was unpersuaded.

“I shall work, within the limits of judicial decency,” he wrote, “to put off decision on miscegenation as long as I can.”

The Supreme Court did not strike down laws banning interracial marriage until 1967, in Loving v. Virginia, when 16 states still had them on the books. That was almost two decades after the California Supreme Court in 1948 struck down a law making illegal “all marriages of white persons with Negroes” in Perez v. Sharp.

It has been just four years since the California Supreme Court, citing Perez, struck down two state laws limiting marriage to a man and a woman…

Read the entire article here.

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The Crime of Being Married

Posted in Articles, Law, Media Archive, United States, Virginia on 2012-10-22 01:14Z by Steven

The Crime of Being Married

Life Magazine
1966-03-18
pages 85-
Source: Library of Virginia

Photographs by Grey Villet

A Virginia couple fights to overturn an old law against miscegenation

She is Negro, he is white, and they are married. This puts them in a kind of legal purgatory in their home state of Virginia, which specifically forbids interracial marriage.

Last week Mildred and Richard Loving lost one more round in a seven-year legal battle, when the Virginia Supreme Court upheld the constitutionality of the state’s antimiscegenation law. Once again they and their three children were faced with the loss of home and livelihood…

Read the article here.

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Law and the Boundaries of Place and Race in Interracial Marriage: Interstate Comity, Racial Identity, and Miscegenation Laws in North Carolina, South Carolina, and Virginia, 1860s-1960s

Posted in Articles, History, Law, Media Archive, United States, Virginia on 2012-08-24 21:46Z by Steven

Law and the Boundaries of Place and Race in Interracial Marriage: Interstate Comity, Racial Identity, and Miscegenation Laws in North Carolina, South Carolina, and Virginia, 1860s-1960s

Akron Law Review
Volume 32, Number 3 (1999)
pages 557-575

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

In North Carolina in 1869, Wesley Hairston, a black man, and Puss Williams, a white woman, went on trial in Forsythe County for “fornication and adultery.” They claimed they were married, but the judge instructed the jury that no such marriage could be valid in North Carolina. When the jury convicted both defendants, they appealed the judge’s instruction and the jury’s verdict. The North Carolina Supreme Court dashed their hopes when it declared: “The only question in this case is, whether the intermarriage of whites and blacks is lawful.” A unanimous appeals court rejected the “pretended marriage” and upheld the convictions.

Hairston and Williams did not see their convictions as consistent with the facts. They thought they had both contracted a marriage and found instead that they had each committed a felony. Other couples ran into similar problems. Brought to court, some argued that they had entered a valid marriage and, having moved into another state, they should not be subject to the enforcement of its laws against interracial marriage. Others, challenging the premise that they did not share one racial identity, argued that, since they were both black or both white, the miscegenation law should not reach their marriage.

This essay draws from case materials in three states to explore two of the main problems in enforcing—or escaping conviction under—laws in the United States against interracial marriage during the hundred years after the Civil War. Questions of interstate comity and racial identity, though not both involved in every miscegenation case, would remain issues in many such cases as long as laws against interracial marriage remained in effect. Only in 1967, when the U.S. Supreme Court decided Loving v. Virginia and declared such laws unconstitutional, would the boundaries of race and place no longer have any bearing on the law of marriage between a man of one race and a woman of another…

…3. But What Race Is She Really?

In October 1881, John Crawford and Maggie Dancey went on trial for violating South Carolina’s new law against interracial marriage. After courting in North Carolina, they had decided to marry. The couple had heard that North Carolina had a stringent law against their doing so but, believing that South Carolina had no such law, they thought they had a remedy. Crawford moved back south across the state line to his home in York County, and Dancey soon followed from her family’s home in Mooresville, just north of Charlotte. They approached a black preacher, Edward Lindsay, about their wishes, and he assured them that they could marry in South Carolina. The ceremony took place, and their arrests soon followed.

The newlyweds’ marriage did not involve the question of comity, but it definitely involved another thorny issue, the question of racial identity. John Crawford testified that the fair-skinned woman he had married came from a family that, back in her hometown, was regarded as mixed-race. He had seen his wife’s grandmother, a “bright mulatto,” he said. The family attended a black church, associated only with African Americans, and despite their color, seemed to fall on the black side of the great racial divide. The couple’s argument was that, even though Maggie was of “fair complexion,” with “flaxen or light auburn hair and light blue eyes,” she was black just the same as her “dark mulatto” husband. If proved, the couple had not, after all, broken the law.

The fact that the only evidence in the case consisted of the defendants’ own testimony left the court perplexed. Because Maggie Dancey went on trial some distance from her family’s residence, no local witnesses could help the court with testimony regarding the Dancey family’s racial reputation. The judge called upon a white medical doctor, W. J. Whyte, to offer his expert testimony, but the doctor, after a brief examination in the waning light of day, reported the woman’s identity difficult to pin down. The judge held the trial over to the next morning. The doctor tried again but complained that the microscope with which he examined the woman’s hair and skin seemed inadequate to the task. If forced to choose, he held to his original opinion that Maggie Dancey was a white woman, but he could not be certain.

The judge put the matter in the hands of the jury. He told them that if they were unsure, they should resolve their doubt in favor of the woman. After an hour’s deliberation, the jury reported its verdict. Maggie Dancey was white, and John Crawford was not. Both were guilty…

Read the entire article here.

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Don’t Pass on Context: The Importance of Academic Discourses in Contemporary Discussions on the Multiracial Experience

Posted in History, Law, Media Archive, My Articles/Point of View/Activities, Papers/Presentations, Slavery, United States on 2012-06-12 22:15Z by Steven

Don’t Pass on Context: The Importance of Academic Discourses in Contemporary Discussions on the Multiracial Experience

Mixed Roots Film & Literary Festival
Japanese American National Museum
Los Angeles, California
2011-06-11

Steven F. Riley

The following is the slightly modified text from my opening remarks.

As we commemorate the 150th anniversary of the start of the Civil War, ponder about re-electing our first black President, and begin the remaining 99 decades of the so-called “Mixed Millennium,” never in any point in time have there been so many ways to disseminate and share information about the multiracial experience: online, offline, YouTube, iPhones, blogs, podcasts, self-publishing, publishing on demand, etc. Thoughts and ideas that in the not too-distant past, that may not have been published until after death; can now be broadcast to the world before breakfast.  Never have so many, been able to say so much, so quickly. But while we marvel at the quantity of the information about multiracialism, I ask that we pause and consider the quality of the information about multiracialism.  Never have so many, been able to publish so much… and say so little, so quickly.

The purpose of this workshop is to encourage writers, filmmakers, and activists to consider discourses and texts outside of their own—or their subject’s—personal experiences during the formation of their respective projects.  The ideas discussed during the workshop should not be seen as mandatory or even suggested guidelines for projects, but rather topics for consideration to help an writer or artist present and communicate their ideas in a more meaningful way.

Just a quick question for the audience… What is the year of the first census that tabulated data on individuals of two or more races? [Audience responses were mostly “2000”, there was one “1890.”  The correct answer is “1850.”]

[By the census of 1850, the aggregate number of slaves in the United States was 3,204,313. Of this number, 246,656 were of mixed blood, mulattoes, The number of unmixed negro blood was, therefore, 2,487,455. The free black and mulatto population was 434,495, in the following proportions; blacks, 275,400; mulattoes, 159,095.]

There are three interconnecting areas of discussion that I find lacking in these contemporary discourses.  I will speak briefly on each of them and explain their importance and at the same time use the narrative of Richard and Mildred Loving as a central point of focus.

Our celebration of the Lovings is an excellent entrée into an examination of co-option and the distortion of an American historical narrative.  Similar to the reduction of the legacy of Dr. Martin Luther King, Jr.’s life into his famous 1963 “I Have a Dream” speech in Washington, DC, the narrative of the Lovings has been reduced into the story of “love denied.”  Dr. King did not die because he dreamt of what America could be; he died because he demanded that America be what it should be.  Few remember Dr. King’s criticism of the Vietnam War when he said,

“We were taking the black young men who had been crippled by our society and sending them eight thousand miles away to guarantee liberties in Southeast Asia which they had not found in southwest Georgia and East Harlem. So we have been repeatedly faced with the cruel irony of watching Negro and white boys on TV screens as they kill and die together for a nation that has been unable to seat them together in the same schools. So we watch them in brutal solidarity burning the huts of a poor village, but we realize that they would never live on the same block in Detroit.”

Like King’s legacy, the popular narrative of the Loving saga has often been crafted in a way that ignores historical facts and denies persistent inequalities.  Like in many stories, there are truths, lies, and omissions. The story of the Lovings is no exception.  It is not that the celebration of the Lovings is inappropriate, it is that it is inadequate.

On the site www.LovingDay.org, the creators state that,

“The Loving Day name comes from Loving v. Virginia (1967), the landmark Supreme Court decision that legalized interracial marriage in the United States. We found it quite perfect that a couple named Richard and Mildred Loving won their right to marry, and we know a good thing when we see it. So, Loving Day refers to two kinds of loving: the couple in the Supreme Court case, and the original definition of loving.”

Loving did not legalize interracial marriage in the United States.  It legalized interracial marriage in the 15 remaining states that still had anti-miscegenation laws.  (There were 16 states with such laws at the begining of the trial but the state of Maryland repealed its law while Loving v. Virginia was still pending.)  To its credit, LovingDay.org does give the visitor a state-by-state and year-by-year breakdown of anti-miscegenation laws throughout the United States, nevertheless, the inaccuracy of this paragraph remains.  Loving neither increased the number of interracial marriages in the South nor did it create a so-called late-20th century “multiracial baby boom”—the Immigration and Nationality Act of 1965 did that by increasing immigration from Asia and Latin America.  In fact, ten states have never enacted anti-miscegenation laws. Loving did, according to Victor Thompson, “send a signal to the U.S. population that, in the eyes of the state, interracial marriage was no longer the ‘sin’ that it used to be—even if it still remained a sin in the minds of some.”  Yet even today in 2011, the state of Mississippi with the lowest ratio of white-to-black residents, and as a result the highest potential of interracial unions and multiracial births, reports the lowest rate of self-identified multiracial individuals in the country.

Our preoccupation and celebration with Loving—and in the case of LovingDay.org with the word “loving”—diverts our attention away from the institutional inequities—that are still with us—that created “race” and racism as we know it and forced the Lovings to spend over half of their marriage fighting for their marriage.  While we may remember Richard Loving’s famous, “Tell the court I love my wife,” few remember their lawyer Bernard Cohen’s eloquent argument to the Supreme Court where he said,

“The Lovings have the right to go to sleep at night knowing that if should they not wake in the morning, their children would have the right to inherit from them. They have the right to be secure in knowing that, if they go to sleep and do not wake in the morning, that one of them, a survivor of them, has the right to Social Security benefits. All of these are denied to them, and they will not be denied to them if the whole anti-miscegenistic scheme of Virginia… [is] found unconstitutional.”

Race is a Social Construction

“Race is a social construction.” Though it has been nearly a century since scientists began to recognize that the concept of race has no basis in biology, yet race—or rather the belief in race—remains a salient force in our world today.  As most have you have already heard before, human beings are the most similar species on earth. When we speak of race, we speak of a concept originally designed for the commoditization, exploitation, oppression and near extermination of African, indigenous (and later Asian) populations. Race as biology is fallacious and we know it.  If we teach our children to tell the truth, then we should do the same.  I ask that writers and artists consider whether embracing an identity that is based in whole—or in part—on these social constructions merely reinforces those constructions.  As author Cedric Dover stated so eloquently in 1937, “Today there are no half-castes because there are no full-castes.” Additionally, little attention is paid to the role class has in self-identification.  It would be interesting to see projects that take leave of the college campuses, suburban enclaves, and coffee shops and investigate the lives of individuals in poorer rural and/or urban settings.

While multiracial identities give the appearance of a deconstruction of a social order based on race, I suggest otherwise. For example, many multiracial Americans of African/European descent understandably attempt to claim and reassert their non-African ancestry; reminding us how they are “a little French, a little Scottish, Italian, etc.,” few of us stop to ponder the near utter destruction of their African ancestry and how it has-even with the inclusion of European ancestry-been reduced to “black.”  While some may embrace a “Black/White” identity, I ask where are the “Luba/Lithuanians”, “Shona/Scottish”, “Ewe/Estonians”, “Igbo/Icelanders?”  It used to be our identities told us and others, where we came from, what we did, how we hunted, how we fished, where we pressed our wine, how we made cheese, when we planted, how we worshiped, and how we lived.  Only a few seem to know or notice these nearly infinite identities (even from Europe) have been reduced through the centuries by the onslaught of white supremacy to just a handful of exploitable commoditized categories. We think we can manipulate the morally corrupt framework of “race” into a modern utopia, but even the so-called “new” hybrid identities may be reabsorbed or discarded back into the oppressive essentialist elements.

Individuals and groups today in 2011 that insist and demand we all tell our whole “racial truth”, are no less misguided and insidious than the Virginians who insisted and demanded “racial integrity” in 1924.  While some criticize President Obama for identifying as Black, who here knows that “black” Mildred Loving had European ancestry along with Native American ancestry on both sides of her family tree?  What even the most ardent racists in Virginia knew—that apparently some activists today do not—was that “racial integrity” was and is pure nonsense.

I ask the creators in this room if they could create projects that consider what life in our society would be like without race.

History

My second area of discussion is by far, my personal favorite, and unfortunately completely neglected in the non-academic contemporary discourses.  Hopefully those in the audience will make my complaint—excuse the pun—history.

No serious discussion about multiracialism can begin without an understanding of history.  History is not merely important, it is essential.  Without an understanding of the past, we shall not only fail at transforming the future, we shall merely repeat it. Loving v. Virginia was the final battle in a 50+ year struggle to repeal all anti-miscegenation laws in the United States. For many, the history of multiracial America—if one even bothers to discuss history—begins in 1967 with Loving.  Yet even the history of this one case suggests that the genesis of multiracial America began much earlier.

As Kevin Maillard has stated,

“Looking back to Loving as the official birth of Multiracial America reinforces the prevailing memory of racial separatism while further underscoring the illegitimacy of miscegenations past. By establishing racial freedom in marriage, Loving also sets a misleading context for the history of mixed race in America. Even though Loving instigates the open acceptance of interracialism, it unintentionally creates a collective memory that mixed race people and relationships did not exist before 1967.”

Loving did not create an explosive growth in the multiracial population.  The heterogeneous residents of Caroline County, Virginia would have scoffed at such a notion just as the inhabitants of San Salvador would have scoffed at Christopher Columbus’s “discovery” of their island.  Just as Columbus was a thousand of years too late to claim a “discovery,” those that suggest a post-Loving “multiracial baby boom” are 300 years too late.  If we are to use a point in time as a demarcation of the beginning of multiracial America, we should consider the year 1661, when the then colony of Maryland codified the first anti-miscegenation statute.

The fact that Richard Perry Loving and Mildred Delores Jeter began their courtship in 1950—when he was 17 and she was 11—clearly indicates that their relationship was not transgressive as far as their families were concerned.  In fact, the Jeters made it clear that “Richard [wasn’t] the first white person in our family,” indicating that Mildred—like most “black” Americans—had heterogeneous ancestry.  Perhaps the reason that the 1950’s Loving-Jeter courtship was non-transgressive within their families, was because such relationships were non-transgressive within their community of Caroline County, Virginia; which was known as the “passing capital of America” because so many light-skinned blacks were mistaken for whites.

White Supremacy

LovingDay.org provides us with what, as far as I can tell is the only interactive state-by-state map of anti-miscegenation laws that I know of. It is indeed—as they put it—“cool”.  Yet despite the information given about these statutes, we are presented no overarching reasons why these laws were enacted in the first place.  Nor are we told who wrote these laws. The site does, correctly state that, “The judiciary system played an important role in regulating interracial relationships.”  Yet something very important is missing from these texts.

Fortunately for us we have a scholar like Peggy Pascoe to tell us the whole truth.  The very first paragraph of her multiple award winning book, What Comes Naturally, Miscegenation Law and the Making of Race in America, states:

“This book examines two of the most insidious ideas in American history. The first is the belief that interracial marriage is unnatural.  The second is the belief in white supremacy. When these two ideas converged, with the invention of the term “miscegenation” in the 1860s, the stage was set for the rise of a social, political, and legal system of white supremacy that reigned through the 1960s and, many would say, beyond.”

No one should celebrate another “Loving Day” without reading this magnificent book.

In my last of the three areas of discussion, this perhaps is the most difficult to discuss, yet perhaps the most pervasive.  No force in American society has had—and continues to have—a stronger influence on identity than that of white supremacy.

While it is tempting to frame the narrative of the Lovings as a case of love denied by racial difference, there is more to the story.  Anti-miscegenation laws did much more than prevent the marital unions between men and women of different races.  Anti-miscegenation law in fact; transformed the fiction of race into a social reality.  Their enforcement meant that a persons racial identity had to be determined in order to receive a marriage license. Furthermore, the variation in punishments—based on the determined race of the litigants—reinforced the idea of racial hierarchy. Whereas for example, a white person and Indian would both face a $200 dollar fine and two years in prison for illegally getting married, while a white person and a black person would face a $500 fine and five years in prison for the same offense.  Anti-miscegenation laws also disenfranchised spouses and children.  To make matters worse, the idea of racial hierarchy was embraced even in states that had no anti-miscegenation laws. These laws adversely affected all people of color regardless of their marital unions. In short, anti-miscegenation laws were the cornerstone of white supremacy.  Yet despite the multitudes of non-academic discourses celebrating the demise of these laws, absolutely no mention is made in them about white supremacy.

The first anti-miscegenation statutes enacted in Maryland and Virginia in the 1660s were part of the broader strategy of supporting the growing institution of slavery.  The presence of interracial couples and their mixed-race offspring threatened the belief in racial difference, black inferiority, and notion of slavery altogether. To counter this perceived threat, these laws were enacted to create a physical, moral and psychological barrier between the whites and blacks and made the concept of the ownership of another human being acceptable.

On January 6, 1959, just six months after police officers entered through the unlocked front door of the Lovings and arrested the sleeping newly married couple for violating the Racial Integrity Act of 1924, they were sentenced to one year in prison. The sentence was suspended on the condition that they leave the state of Virginia for 25 years.  After passing sentence, the trial judge in the case, Leon M. Bazile infamously proclaimed:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Although Judge Bazile’s statement is ostensibly about the prevention of what he saw as putative marriages, a closer examination reveals a more sinister agenda. For him, not only did Mildred and Richard Loving not belong in the same bed, they—and all of their respective racial cohorts—did not belong on the same continent.  Although Jim Crow segregation could not send the “races” back to their separate respective “home continents,” it did the next best thing by consigning the races to their separate schools, separate theaters, separate hospitals, and separate water fountains.  Much like his predecessors almost 300 years before, Bazile reaffirmed the framework of white supremacy and the oppression of people of color via the ruse of anti-miscegenation laws.

Conclusion

While we all owe a debt of gratitude to the courageousness of Richard and Mildred Loving that can never be repaid, we should use care on how we celebrate their interracial marriage.  The increased attention towards multiraciality has brought—appropriately—more scrutiny, particularly from the academic community.  More scholars than ever before are examining the role of multiraciality within the framework of racial justice in the United States and abroad. In the case of Latin America, critics have begun to argue that “multiracialism, like the firmly discredited concept of Brazilian racial democracy, functions as an ideology that masks enduring racial injustice and thus blocks substantial political, social, and economic reform.”

The clever positioning by multiracial identity activists of the Loving marriage as the 1960s vanguards of multiraciality, promotes several troubling ideologies that should exposed and examined.  These ideologies effectively distance the Lovings’ saga from the greater African-American struggle for freedom and justice.  Firstly, the emphasis on the “marriage” of the Richard and Mildred Loving implies that these unjust anti-miscegenation laws had no adverse impact towards Black-Americans and other people of color as a whole.  Finally, and most importantly, the continual dissemination of the myth of increased multiracial births since the Loving decision, is an insidious maneuver that illogically seeks to erase the history of over three centuries of interracial marriages and the millions of descendants from those unions.  As I have stated before, we are not becoming a multiracial society, we already are a multiracial society and we have been so for centuries.

By the time the Loving decision marked its first anniversary on June 12, 1968, there was no sign of either a multiracial baby boom or an interracial marriage boom. While the Lovings were finally able to live quietly—and legally—as husband and wife in their Virginia home town, the racist attitudes that inspired the creation of anti-miscegenation laws were still very salient. (In fact, Alabama did not remove its unenforceable statute until 2000).  What “booms” that could be seen and heard were near and far and were those of dismay, protest and death.  Booms were heard loudly in January, 1968 when the North Vietnamese began the Tet Offensive that despite its military failure, shocked policy makers in Washington, D.C. enough that they became convinced that the war—even with its black and white comrades in brutal solidarity—could not be won.  Booms would be heard in cities like Newark, New Jersey—exactly one month after the decision, with riots over racial injustice. Then more “booms” in Detroit, just days later which would be just another one of the 159 race riots in the “long hot summer” of 1967. The most ironic and tragic “boom” would come from the shot of a rifle across the street from a Memphis, Tennessee hotel on April 4, 1968, which would fell Dr. King, America’s true non-violent symbol of racial reconciliation.  From hence “booms” would be heard in violent protest all over America.

The past two years have brought forth an unprecedented amount of critical examination of multiracialism.  Articles, books, live programs, even a conference—The first critical mixed-race studies conference—are forcing us to ask serious and important questions about how multiracialism and multiracial identities may impact  racial dynamics here and abroad.  Even Dr. Naomi Zack—who many of you have just seen in this morning’s movie Multiracial Identity defending the political recognition of a multiracial identity, has since, retracted that position in her article titled “The Fluid Symbol of Mixed Race” in the Fall 2010 issue of the journal Hypatia.

She states:

“The recognition of mixed race that I have advocated would proceed from where we are now, in a society where many people continue to think that human racial taxonomy has a biological foundation. Recognition of mixed race would be fair, because if racially “pure” people are entitled to distinct racial identities, then so are racially mixed people.  Also, the false belief in biological races logically entails a belief in mixed biological races. But, of course, in true biological taxonomic terms, if pure races do not exist, then neither do mixed races (Zack 1997, 183-84; Zack 2002, chap. 7).

However, by the time I finished writing Philosophy of Science and Race (Zack 2002), I had come to the conclusion that broad understanding of the absence of a biological foundation for “race,” beginning with philosophers, was more urgent than mixed-race recognition or identity rights.  Against that needed shift away from the false racialisms to which many liberatory race theorists still clung, advocacy of mixed-race recognition seemed self-serving, if not petty. And I think that the shift is still a work in progress. But still, the ongoing historical phenomena of mixed race and the distinctive experiences of mixed-race people continue to merit consideration, and I am grateful for this opportunity to revisit my earlier confidence and enthusiasm that mixed-race recognition was on the near horizon, with the full-scale undoing of race soon to dawn.”

She continues with,

“…The dangers of insisting on black and white mixed-race political recognition in a system in which blacks are disadvantaged is that a mixed-race group could act as a buffer between blacks and whites and re-inscribe that disadvantage. It is interesting to note that under apartheid in South Africa, there was not only a robust mixed population known as “colored,” but individuals were able to change their race as their life circumstances changed (Goldberg 1995).  From the perspective of mixed-race individuals, this example may seem as though even South Africa was more liberatory on the grounds of race than the one-drop-rule-governed U.S. (This is not to say that South African coloreds had full civil liberties under apartheid, but only that they were better off than many blacks.)  But from a more broad perspective, in terms of white–black relations, recognition of mixed-race identity, while it may advantage mixed-race individuals and add sophistication to a black and white imaginary of race, does little to dislodge white supremacy overall. The public and political recognition of mixed-race identities could be quite dangerous to white–black race relations overall if the position of blacks remained unchanged (Spencer 1999).  But continued obliviousness about mixed-race identities holds the immediate danger of denying the existence of injustice for some presumptively pure blacks who do not have the advantages of white parentage…”

With the next two years promising even more scrutiny of the discussion surrounding multiraciality, it is more important than ever that we all read the academic texts to help us create projects that can produce greater impact.

©2011, Steven F. Riley

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Loving vs. Virginia in a Post-Racial World: Rethinking Race, Sex, and Marriage

Posted in Anthologies, Books, Gay & Lesbian, Law, Media Archive, Native Americans/First Nation on 2012-05-28 19:11Z by Steven

Loving vs. Virginia in a Post-Racial World: Rethinking Race, Sex, and Marriage

Cambridge University Press
June 2012
300 pages
Hardback ISBN-13: 9780521198585
Paperback ISBN-13: 9780521147989

Edited by

Kevin Noble Maillard, Professor of Law
Syracuse University

Rose Cuison Villazor, Professor of Law
University of California, Davis

In 1967, the U.S. Supreme Court ruled that laws prohibiting interracial marriage were unconstitutional in Loving vs. Virginia. Although this case promotes marital freedom and racial equality, there are still significant legal and social barriers to the free formation of intimate relationships. Marriage continues to be the sole measure of commitment, mixed relationships continue to be rare, and same-sex marriage is only legal in 6 out of 50 states. Most discussion of Loving celebrates the symbolic dismantling of marital discrimination. This book, however, takes a more critical approach to ask how Loving has influenced the “loving” of America. How far have we come since then, and what effect did the case have on individual lives?

Table of Contents

  • Introduction Kevin Noble Maillard and Rose Cuison Villazor
  • Part I: Explaining Loving v. Virginia
    • 1. The legacy of Loving John DeWitt Gregory and Joanna L. Grossman
  • Part II: Historical Antecedents to Loving
    • 2. The ‘love’ of Loving Jason A. Gillmer
    • 3. Loving in Indian territory: tribal miscegenation law in historical perspective Carla Pratt
    • 4. American mestizo: Filipinos and antimiscegenation laws in California Leti Volpp
    • 5. Perez v. Sharp and the limits of Loving: race, marriage, and citizenship reconsidered R. A. Lenhardt
  • Part III: Loving and Interracial Relationships: Contemporary Challenges
    • 6. The road to Loving: the legacy of antimiscegenation law Kevin Noble Maillard
    • 7. Love at the margins: the racialization of sex and the sexualization of race Camille A. Nelson
    • 8. The crime of Loving: Loving, Lawrence, and beyond I. Bennett Capers
    • 9. What’s Loving got to do with it? Law shaping experience and experience shaping law Renée M. Landers
    • 10. Fear of a ‘Brown’ planet or a new hybrid culture? Jacquelyn Bridgeman
  • Part IV: Considering the Limits of Loving
    • 11. Black pluralism in post-Loving America Taunya Lovell Banks
    • 12. Multiracialism and reparations: accounting for political blackness Angelique Davis
    • 13. Finding a Loving home Angela Onwuachi-Willig and Jacob Willig-Onwuachi
  • Part V: Loving outside the United States Borders
    • 14. Racially inadmissible wives Rose Cuison Villazor
    • 15. Flying buttresses Nancy K. Ota
    • 16. Crossing borders: Loving v. Virginia as a story of migration Victor Romero
  • Part VI: Loving and Beyond: Marriage, Intimacy and Diverse Relationships
    • 17. Black vs. gay: centering LBGT people of color in civil marriage debates Adele Morrison
    • 18. Forty years after Loving: a legacy of unintended consequences Rachel F. Moran
    • 19. The end of marriage Tucker Culbertson
    • 20. Afterword Peter Wallenstein
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“Teachable Moments”: The Use of Child-Centered Arguments in the Same-Sex Marriage Debate

Posted in Articles, Gay & Lesbian, Law, Media Archive, United States, Virginia on 2012-03-26 03:30Z by Steven

“Teachable Moments”: The Use of Child-Centered Arguments in the Same-Sex Marriage Debate

California Law Review
Volume 98, Issue 1 (February 2010)
pages 121-158

Ruth Butterfield Isaacson, Associate
Leland, Parachini, Steinberg, Matzger & Melnick LLP, San Francisco

Child-centered arguments have played a central role in debates over expanding marriage rights throughout history. Opponents of interracial marriage argued in Loving v. Virginia that “mixed race” children from interracial households were physically and psychologically inferior and suffered from social stigmatization. Over forty years later, child-centered arguments again took center stage in the debate over same-sex marriage. The arguments initially focused on the harms to children raised by same-sex parents—specifically, that such children suffer from stunted development and social alienation. Over the years, these arguments gradually morphed into claims that same-sex marriage harms all children, because the prevalence of same-sex marriage in society and its integration in school curriculum confuses children about gender roles and the “true” meaning of marriage. Tracing the evolution of child-centered arguments from Loving through the recent battle for same-sex marriage in California’s November 2008 election on Proposition 8 offers valuable lessons to same-sex marriage advocates about the propriety and consequences of using child-centered arguments in defining the marriage rights of adults.

INTRODUCTION

It really is what we call a teachable moment.
—Interim Director of the Creative Arts Charter School in San Francisco, describing a first-grade field trip to City Hall to watch a lesbian wedding.

On Friday, October 10, 2008, a group of first-grade children from the Creative Arts Charter School in San Francisco took a field trip to City Hall. The children’s first-grade teacher, a lesbian, was set to marry her longtime girlfriend that morning. The director of the charter school saw the wedding as a “teachable moment”—an opportunity for the children to witness firsthand the progression of civil rights in America.

Many same-sex marriage advocates heralded the first graders’ excursion as another step toward the full acceptance and integration of same-sex individuals in society. But other supporters worried that the field trip, while well intentioned, was ill timed and potentially damaging to the same-sex marriage cause. At that time, the debate over same-sex marriage had reached a significant crossroads. Earlier that year, the California Supreme Court issued a landmark decision declaring that a same-sex marriage ban violated both the due process and equal protection provisions of the California Constitution. Opponents of same-sex marriage responded quickly and forcefully with Proposition 8, a ballot initiative to amend the California Constitution to define marriage solely as a union between a man and a woman. On the day of the field trip, polls on Proposition 8 showed close to a dead heat on the issue. Many same-sex marriage advocates feared that the “teachable moment” played directly into the hands of their opponents, giving them new leverage that could ultimately shift momentum in favor of Proposition 8.

Not surprisingly, just one week later, the field trip became the target of new television advertisements supporting Proposition 8. The leading organization behind the Proposition 8 campaign, ProtectMarriage.com, had cautioned for months that state recognition of same-sex marriage would, among other things, force public schools to include teaching same-sex marriage in their curriculum. In their view, the field trip was concrete and visible evidence that their fears had been realized. Playing on those fears, their ad took advantage of news footage of the wedding, particularly footage of a first-grade girl who appeared sad, and almost confused, by her teacher’s lesbian wedding. This lasting image was paired with the warning that “children will be taught about gay marriage unless we vote yes on Proposition 8.” The ad first aired on October 28, 2008; Proposition 8 passed by a 52-48 margin exactly one week later on November 4, 2008.

Appeals to child welfare are neither new nor exclusive to the same-sex marriage debate. Such appeals have also been raised in other family law disputes, most notably the fight for interracial marriage during the era of Loving v. Virginia, the United States Supreme Court decision striking down Virginia’s ban on interracial marriage. Opponents of interracial marriage claimed that the “mixed-race” children produced by interracial couples were biologically inferior, suffered abnormal social and psychological development, and endured stigmatization by their peers. Similarly, opponents of same-sex marriage have wielded such claims for almost two decades, although the substance of their child-based fears has evolved. Like the early arguments used by interracial marriage opponents, the first child-centered arguments in the same-sex marriage debate focused on the harms to children raised by same-sex parents—specifically, that such children suffer stunted social and psychological development and face stigmatization by their peers. Over the years, these concerns gradually morphed into fears about how same-sex marriage harms all children, because the increasing prevalence of same-sex marriage in society and its integration into school curricula confuse children about gender roles and the true meaning of marriage.

This Comment examines modern views of marriage and how child-centered appeals have influenced the discourse on expanding marital rights, particularly within the context of Loving v. Virginia, Goodridge v. Dep’t of Public Health, Hernandez v. Robles, In re Marriage Cases, the battle over Proposition 8 in California, and supporting case law and legislation. These sources evince an evolution in judicial conceptions of marriage and the childbased arguments that have been used to expand or constrict such conceptions, from anxiety over “mixed-race” children during the fight for interracial marriage to concerns in the same-sex marriage debate about the psycho-social well-being of children raised by same-sex parents and, ultimately, the effects of same-sex marriage on public school curricula. The Comment concludes with an analysis of modern marriage as defined by courts and society today, the intersection of Proposition 8’s success with contemporary marital attitudes, and the role of the judiciary in the fate of same-sex marriage…

…In defending its ban on interracial marriage, Virginia appealed to many of the same child-centered arguments that motivated the enactment of the ban 276 years earlier. In its brief to the Supreme Court, Virginia declared that states have an interest in preserving the “purity of the races and in preventing the propagation of half-breed children.” Acknowledging the reality of persistent racism, Virginia claimed its interest in keeping the races “pure” stemmed not from the repulsion interracial children invoke in society, but rather from the idea that interracial children were seen as outcasts and would be “burdened . . . with ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’” Virginia also emphasized the socioscientific consequences to interracial children, including the domination of racial inferiorities within children of mixed race and the social tension that it claimed was created when races of different socioeconomic backgrounds formed a family. Interracial couples also experienced higher divorce rates, Virginia argued, which would have negative effects on the (interracial) children produced by and raised within these families…

Read the entire article here.

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The Real American Love Story: Why America is a lot less white than it looks

Posted in Articles, Census/Demographics, History, Media Archive, Social Science, United States on 2012-02-15 05:00Z by Steven

The Real American Love Story: Why America is a lot less white than it looks

Slate
1999-10-05

Brent Staples

The PBS broadcast last month of An American Love Story—a 10-hour film about an interracial family—spawned a great deal of chatter to the effect that mixed-race couplings were the wave of the future. In fact, they are the wave of the past. Interracial marriages accounted for only 2.2 percent of all marriages in the Current Population Survey of 1992, a gain of only two-tenths of a percent over 1980, and the number of mixed couplings actually decreased slightly in 1991. The census pattern suggests that slightly more interracial couples will fall into each other’s arms in the coming years but that there will be nothing resembling a dramatic acceleration of marriage across the color line.

But America already has almost 400 years of race mixing behind it, beginning with that first slave ship that sailed into Jamestown harbor carrying slaves who were already pregnant by members of the crew. Americans have grudgingly accepted the fact that sex between masters and slaves such as Thomas Jefferson and Sally Hemings was frequent, leading to a many-hued race of people who do not look African at all, even though they call themselves “African-American.” Outside of recent African immigrants to the United States, there are virtually no black Americans of purely African descent, which is to say no black people who lack white ancestry, left in this country.

Four centuries of race mixing have had a similar impact on Americans who define themselves as white. Convincing estimates show that by 1950 about one in five white Americans had some African ancestry. This inheritance most often arrived at the bedroom door in the form of a fair-skinned black person who had slipped over the color line to live as white. Put another way, most Americans with African blood in their veins think of themselves as white and conduct themselves as such—and check “white” when they fill out census forms…

Read the entire article here.

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Loving and the Legacy of Unintended Consequences

Posted in Articles, History, Law, Media Archive, Politics/Public Policy, United States on 2012-02-15 03:39Z by Steven

Loving and the Legacy of Unintended Consequences

Wisconsin Law Review
2007,  Number 2
Pages 241-281

Rachel F. Moran, Michael J. Connell Distinguished Professor of Law
University of California, Los Angeles

Table of Contents

  • I. Introduction
  • II. Making History Rest on Traditional Assumptions
    • A. The Significance of Race
    • B. The Meaning of Marriage
    • C. A Domestic Paradigm of Race and Intimacy
  • III. Undoing Traditional Assumptions: The Unintended Consequences of Loving
    • A. New Frontiers in Race: Multiracialism and Colorblind Segregation
      • 1. The Mixed Promise of Multiracialism
      • 2. The Rise of Colorblind Segregation
    • B. New Paradigms of Intimacy: Same-Sex Marriage Advocacy and the Rise of Marriage-Minded Singlehood
      • 1. The Same-Sex Marriage Movement
      • 2. Marriage-Minded Singlehood
    • C. From the Color Line to the International Border
  • IV. Conclusion

Introduction

If it can take a decade for a person to appreciate the implications of a major life event, it can take even longer to realize the significance of a turning point in the history of a nation. Perhaps for that reason, we hold commemorative events like this one.  An anniversary is an opportunity to reflect on a pivotal moment with distance and detachment and to weigh the consequences more fully than was possible at the time. On this fortieth anniversary of Loving v. Virginia, perhaps what is most striking is that a case deemed pathbreaking in its day now seems to have taken so much for granted.  Because the United States Supreme Court interrogated the meaning of neither race nor marriage, Loving has been invoked in a number of later struggles in ways that might have taken the Justices by surprise. This result, of course, is part of the law of unintended consequences: the more that is left unexamined, the more likely that a fresh look will reveal implications beyond those originally contemplated.

Here, I will explore Loving’s unintended consequences by considering why the Court took so much for granted and how the opinion later was deployed in unexpected ways. After briefly examining the facts and holdings in the case, I will show that the Justices accepted monoracial categories as a given, despite evidence of multiracial complexity. The Court’s treatment of race reflected the need to implement desegregation orders that turned on clearcut racial distinctions. The Justices also regarded marriage as a longstanding tradition. Already under attack for conjuring up unenumerated rights that did not appear in the Constitution, the Court was loath to suggest that marriage was anything other than an uncontroversial historical institution.

Ironically, the Court’s assumptions about race and marriage have been directly subverted by those who most openly lay claim to Loving’s legacy. Proponents of multiracialism and advocates of same-sex marriage argue that their reform proposals are a natural outgrowth of the Court’s conceptualization of freedom and equality. At the same time, Loving’s subtler consequences have gone largely unaddressed. The case arguably ushered in a jurisprudential philosophy that treats colorblindness and ongoing segregation as compatible. In addition, the decision entrenched the primacy of marriage in the law’s recognition of close personal relationships. Finally, Loving acquiesced in the presumption that romance happens only among Americans and so the decision has been of little import in dignifying and protecting the intimate attachments of noncitizens. Such a complex legacy demonstrates why a perfectly factual account of Loving simply will not do, and so it may take some time to appreciate the consequences.

Read the entire article here.

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The Multiracial Epiphany of Loving

Posted in Articles, Law, Media Archive, Politics/Public Policy, Social Science, United States on 2012-02-15 03:33Z by Steven

The Multiracial Epiphany of Loving

Fordham Law Review
May 2008, Volume 76, Number 6
pages 2709-2733

Kevin Noble Maillard, Associate Professor of Law
Syracuse University

The year 1967 becomes the temporal landmark for the beginning of an interracial nation. That year, the United States Supreme Court ruled state antimiscegenation laws unconstitutional in Loving v. Virginia. In addition to outlawing interracial marriage, these restrictive laws had created a presumption of illegitimacy for historical claims of racial intermixture. Not all states had antimiscegenation laws, but the sting of restriction extended to other states to forge a collective forgetting of mixed race. Defenders of racial purity could depend on these laws to render interracial relationships illegitimate. Looking back to Loving as the official birth of Multiracial America reinforces the prevailing memory of racial separatism while further underscoring the illegitimacy of miscegenations past. By establishing racial freedom in marriage, Loving also sets a misleading context for the history of mixed race in America. Even though Loving instigates the open acceptance of interracialism, it unintentionally creates a collective memory that mixed race people and relationships did not exist before 1967. To imagine and realize a pre-1967 miscegenated America directly challenges the legal legitimacy of the racial reality that antimiscegenation law attempted to enforce. I approach this subject by examining contemporary claims of mixed race that are rooted in the past. This conflict usually entails opposing narratives: one venerating the involvement of a prominent historical figure as party to an interracial relationship; the other steadfastly holds that such claims are unfounded as specious. Placing miscegenation upon narratives and figures that are faintly characterized and understood as racially white turns private claims of mixed identity into public contemplations of interracial intimacy. To imagine historic figures as “Founding Fathers” of another sort destabilizes an implicit understanding of ingrained racial limitations.

..This essay takes issue with the overemphasis on Loving as the enabler for mixed race in the United States, and concomitantly, its effect on legitimating a varied interracial past. Gary Nash’s thesis demonstrates a notable irony: if our just, democratic system openly permits and justifies the “happening thing” of mixed race, why is this same valorization and recognition not extended to the pre-Loving era? Turning to a single court case to celebrate a social phenomenon that has existed at the margins of American culture mistakenly erases the past of racial amalgamation that preexisted the legality that Loving provided. In the system of the racial binary that has been established in the United States, mixtures that disrupt the notion of racial purity, particularly those that originate in the time period before Loving, are presumed to be deviant and abnormal. The collective racial memory in the United States, unlike that of Mexico or Brazil, operates from an assumption of racial purity and sexual avoidance of miscegenation. This national culture of disbelief of racial intermixture has permeated our views of history and law.

This essay argues that looking to Loving as the birthplace of interracialism reinforces the legal authority and resultant legacy of the antimiscegenation regime that it replaced. In addition to outlawing interracial marriage, these restrictive laws created a lasting presumption of illegitimacy for historical claims of racial intermixture. Defenders of racial purity could depend on these laws to render interracial relationships, whether married or unmarried, improbable and illegitimate. Not all states had antimiscegenation laws, but the sting of restriction extended to other states, forging a collective forgetting and denial of the existence of mixed race. The absence of a national, judicial acceptance of mixed race facilitated a collective belief in racial purity. Because it was illegal and immoral, it could not have occurred. As states were withholding the marital right from biracial couples, they attempted to deny and erase the intimate reality of persons, like Richard and Mildred Loving,who would have sought alternatives to the prohibitive law…

Read the entire article here.

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The Connection Between Barack Obama and Peggy Loving Fortune

Posted in Excerpts/Quotes, My Articles/Point of View/Activities on 2012-02-14 04:54Z by Steven

I find it quite ironic—and perhaps a bit amusing—that after all of the debate surrounding multiracial identity and the United States Census, the most famous son of an interracial couple and the daughter of the most famous interracial couple, checked only one racial identity on their census form.  It would appear that the heralding of an era of multiraciality via Loving v. Virginia and an era of post-raciality via the election of President Obama leaves much to ponder.  The truth is that our rose-colored view of a landmark court case and a landmark election tends to obscure the fact that America has been multiracial since its inception.

Steven F. Riley. Commenting (02/13/2012) on the singular racial census choice of President Barack Obama and Peggy Loving Fortune (daughter of Richard Mildred Loving) in Carol Morello’s article “Virginia’s Caroline County, ‘Symbolic of Main Street USA’,” The Washington Post, February 10, 2012. http://www.washingtonpost.com/local/virginias-caroline-county-symbolic-of-main-street-usa/2012/01/26/gIQAKH0z2Q_story.html.

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