Mixed Race Studies

Deciding on Doctrine: Anti-Miscegenation Statutes and the Development of Equal Protection Analysis

Virginia Law Review
Number 95, Issue 3 (May 2009)
pages 627-665

Rebecca Schoff
University of Virginia School of Law

In 1967, the Justices of the Supreme Court of the United States were in complete agreement that the statutory scheme before them in Loving v. Virginia, which criminalized interracial marriage, should be invalidated. They did not, however, agree on which legal doctrines justified the invalidation. Eight Justices signed on to an opinion that carefully hedged the question with arguments related to both the equal protection and the due process clauses. Justice Potter Stewart authored a terse concurring opinion asserting that there could be no valid state law “which makes the criminality of an act depend upon the race of the actor.” Although no other member of the Court was willing to sign on to this concurrence, it gave voice to a doctrine that had been a central argument of civil rights litigation, articulated as early as Justice [John Marshall] Harlan’s famed dissent in Plessy v. Ferguson.

This Note will explore why the Warren Court chose the path it did to invalidate anti-miscegenation laws. More generally, it will analyze the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: assuming that Justices are in agreement as to which party should prevail, what factors, legal and non-legal, can influence the Court’s preference for one doctrine over another? In Loving, the decision to reject Justice Stewart’s rationale had far-reaching consequences. Had the Court followed Justice Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. It might be argued that the Court was simply seeking the narrowest grounds on which to decide the case and that Justice Stewart’s reasoning was simply too broad. Loving’s now-controversial place as a precedent supporting substantive due process analysis in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated, by Justice Stewart’s approach. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction be-tween equal protection, due process, and fundamental rights. Ultimately, this Note will argue that the Warren Court showed a preference for a less rule-like approach to equal protection analysis, in part because the conditions surrounding desegregation exacer-bated the difficulty of analyzing the scope of rules. Dissecting the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to under-stand how and why the Court resolves such problems in particular ways…

Read the entire article here.

What Comes Naturally: Miscegenation Law and the Making of Race in America (Review)

Law and Politics Book Review
American Political Science Association
2009-03-23
pp. 218-220

Mark Kessler, Chair of the Department of History & Government and Professor of Government
Texas Woman’s Univeristy

What Comes Naturally: Miscegenation Law and the Making of Race in America. By Peggy Pascoe. (New York and London: Oxford University Press, 2009. 404 pages. Cloth ISBN13: 9780195094633, ISBN10: 0195094638)

In this highly original and important book, Peggy Pascoe describes and analyzes three centuries of laws in the United States prohibiting interracial marriages and sexual relations. In perhaps the most comprehensive and systematic study of legal marriage and sex prohibitions to date, Pascoe argues that these laws were central ideological tools used in constituting and reproducing white supremacy in the United States. Placing her study in its broadest context, she argues that examining the rise and decline of these laws “provides a locus for studying the history of race in America” (p.2). Pascoe’s study demonstrates how historical research, combined with critical cultural theory and analysis, may shed new light on significant questions regarding the power of law and legal interpretation in constructing and reconstructing social reality.

Throughout this work, the writing is admirably accessible, while the analyses and arguments are deeply nuanced. Pascoe begins many of the eleven chapters with stories describing the people and circumstances involved in miscegenation cases throughout history. These stories are carefully selected to show the great variation in characteristics of participants, laws, and regions of the country in which the cases arose, and to help address the broader questions of nation-building and nation-formation that emerge from this study. Pascoe uses these very human stories, along with landmark appellate court decisions and local legal practices, to explore the many and varied ways in which social and political relations based on race, gender, and sexuality illuminate the rise and fall of miscegenation law in the United States.

Pascoe’s narrative begins in the Reconstruction era, when the term “miscegenation” was first invented and applied to interracial marriage and sex. Her discussion focuses on the ways in which judges, legislators, and lawyers employed notions of what is “natural” and “unnatural” in conventional cultural discourses about sex, gender, and sexuality to create and apply laws prohibiting interracial marriage and sex. Such laws emerged first in the South and North and typically applied exclusively to relations between those categorized racially as “white” and as “black.”…

Read the entire review here.

The Virginia Racial Integrity Act Revisited: The Plecker-Laughlin correspondence: 1928-1930

American Journal of Medical Genetics
Volume 16, Issue 4
Pages 483 – 492
December 1983
DOI: 10.1002/ajmg.1320160407

Philip Reilly
University of Houston Law Center, Houston, Texas
 
Margery Shaw
University of Houston Law Center, Houston, Texas

Correspondence between Walter Ashby Plecker, Virginia State Registrar of Vital Statistics between 1912 and 1938, and Harry Hamilton Laughlin, Superintendent of the Eugenics Record Office at Cold Spring Harbor between 1910 and 1939, provides evidence of efforts to enforce the Virginia Racial Integrity Act of 1924. After antimiscegenation policy is placed in a historical context, excerpts from the letters are offered to demonstrate the zeal with which one state official pursued this eugenic policy.

Read or purchase the article here.

Thinking about Race, Sexuality, and Marriage: A Roundtable on Peggy Pascoe’s What Comes Naturally

American Historical Association
124th Annual Meeting
Friday, 2010-01-10, 08:30-10:30 PST (Local Time)
Manchester Grand Hyatt San Diego
Manchester Ballroom D (Hyatt)
San Diego, California

Thinking about Race, Sexuality, and Marriage: A Roundtable on Peggy Pascoe’s What Comes Naturally

Chair:
Eileen Boris, Professor of History, Chair and Professor of Feminist Studies
University of California, Santa Barbara

Commentator:
Vicki L. Ruiz, Chair and Professor of History
University of California, Irvine

Sponsored by the AHA Working Group for Historical Perspectives on Same-Sex Marriage

Panel Discussion
Kristin Celello, Assistant Professor of History
Queens College, City University of New York

For the past several decades, historians have argued effectively that far from being stable and unchanging until the social upheavals of the 1960s and 1970s, marriage–as a legal and social institution–has changed in significant ways over the course of American history.  Pascoe’s book reminds us that race must necessarily be integrated into this discourse, contending not only that who has had access to marriage has varied but also that the state has played a crucial role in the creation of marital “norms.”

Panel Discussion
Matt J. Garcia, Associate Professor of American Civilization, Ethnic Studies and History
Brown University

Panel Discussion
Valerie Matsumoto, Associate Professor of History
University of California, Los Angeles

Peggy Pascoe‘s landmark work raises questions regarding post-World War II changes not only in the dominant US society but also within East Asian American communities, which had their own strong preferences for endogamous marriage.  Her research also draws attention to the roles played by Asian Americans in confronting old racial structures, as embedded in law.  Challenges to miscegenation laws in the US West were mounted by Nisei such as Noriko Sawada Bridges and Harry Oyama during the critical period of Japanese American community reconfiguration and rebuilding after World War II. I will consider how the Japanese American community’s understandings of racialization shifted in this era; I will also examine perceptions of interracial marriage within the ethnic community.

Panel Discussion
Jessica Millward, Assistant Professor of History
University of California, Irvine

I suggest that the implications of Peggy Pascoe‘s work on miscegenation laws stretch beyond the geographical setting of the West, and the temporal setting of the Progressive era, and signal key points of inquiry among scholars of African American Women’s history writ large. In particular, I focus on laws of slavery and manumission in 18th and 19th centuries.  Laws governing manumission held particular ramifications for enslaved African American women as they used their consensual and non-consensual relationships with owners, and consensual relationships with free black men to access freedom for themselves and their children.  I suggest that laws governing manumission served as precursors to miscegenation laws in the 20th century. Likewise, I suggest that “marriage” and uplift constituted a range of definitions based on the particular angle of vision of African American women in both slavery and in freedom.

Interracial Intimacy: The Regulation of Race and Romance

The University of Chicago Press
2001
232 pages
6 x 9
Paper ISBN: 9780226536637

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

As late as the 1960s, states could legally punish minorities who either had sex with or married persons outside of their racial groups. In this first comprehensive study of the legal regulation of interracial relationships, Rachel Moran grapples with the consequences of that history, candidly confronting its profound effects on not only conceptions of race and identity, but on ideas about sex, marriage, and family.

Table of Contents

• Preface
• 1. Insights from Interracial Intimacy
• 2. Antimiscegenation Laws and the Enforcement of Racial Boundaries
• 3. Subverting Racial Boundaries: Identity, Ambiguity, and Interracial Intimacy
• 4. Antimiscegenation Laws and Norms of Sexual and Marital Propriety
• 5. Judicial Review of Antimiscegenation Laws: The Long Road to Loving
• 6. Race and Romanticism: The Persistence of Racial Endogamy after Loving
• 7. Race and the Family: The Best Interest of the Child in Interracial Custody and Adoption Disputes
• 8. Race and Identity: The New Multiracialism
• 9. The Lessons of Interracial Intimacy
• Notes
• Index

Interracial Intimacy and the Potential for Social Change

Berkeley Women’s Law Journal
University of California, Berkeley Public Law and Legal Theory Research Paper Series
2002
pp. 153-164

Stephanie M. Wildman, Professor of Law and Director of Center for Social Justice and Public Service
Santa Clara University School of Law

Moran, Rachel F.  (2001).  Interracial Intimacy: The Regulation of Race and Romance. Chicago: University of Chicago Press.
271 pp.

In her review essay Interracial Intimacy and the Potential for Social Change, Stephanie Wildman examines Interracial Intimacy: The Regulation of Race and Romance by Rachel F. Moran. Moran’s book investigates the so-called private landscape of race in the context of interracial intimacy. Moran urges the connection between our personal, private views of race and racial issues and the policy decisions society makes in the public realm. Moran explores historic antimiscegenation laws and their role in establishing societal norms and customs, the significance of race in daily life, the legal decisions leading to Loving v. Virginia, and the role of race in custody and adoption decisions. Wildman observes that interracial gay and lesbian relationships represent another area usually viewed as private, yet which implicates the societal landscape. Recognition of the public aspect of personal choice is a necessary element in the fight against bias and the movement toward social change.

Read the entire review/essay here.

Mongrel Nation: The America Begotten by Thomas Jefferson and Sally Hemings

University of Virginia Press
January 2009
144 pages
5 1/2x 81/4
Cloth ISBN 0-8139-2777-0

Clarence E. Walker, Professor of History
University of California, Davis

The debate over the affair between Thomas Jefferson and Sally Hemings rarely rises above the question of “Did they or didn’t they?” But lost in the argument over the existence of such a relationship are equally urgent questions about a history that is more complex, both sexually and culturally, than most of us realize. Mongrel Nation seeks to uncover this complexity, as well as the reasons it is so often obscured.

Clarence Walker contends that the relationship between Jefferson and Hemings must be seen not in isolation but in the broader context of interracial affairs within the plantation complex. Viewed from this perspective, the relationship was not unusual or aberrant but was fairly typical. For many, this is a disturbing realization, because it forces us to abandon the idea of American exceptionalism and reexamine slavery in America as part of a long, global history of slaveholders frequently crossing the color line.

More than many other societies—and despite our obvious mixed-race population—our nation has displayed particular reluctance to acknowledge this dynamic. In a country where, as early as 1662, interracial sex was already punishable by law, an understanding of the Hemings-Jefferson relationship has consistently met with resistance. From Jefferson’s time to our own, the general public denied—or remained oblivious to—the possibility of the affair. Historians, too, dismissed the idea, even when confronted with compelling arguments by fellow scholars. It took the DNA findings of 1998 to persuade many (although, to this day, doubters remain).

The refusal to admit the likelihood of this union between master and slave stems, of course, from Jefferson’s symbolic significance as a Founding Father. The president’s apologists, both before and after the DNA findings, have constructed an iconic Jefferson that tells us more about their own beliefs—and the often alarming demands of those beliefs—than it does about the interaction between slave owners and slaves. Much more than a search for the facts about two individuals, the debate over Jefferson and Hemings is emblematic of tensions in our society between competing conceptions both of race and of our nation.

Interracial Intimacies: Sex, Marriage, Identity, and Adoption

Vintage an imprint of Random House, Inc. Academic Resources
2003
688 pages
Paperback ISBN: 978-0-375-70264-8 (0-375-70264-4)

Randall Kennedy, Michael R. Klein Professor of Law
Harvard Law School

From the author of Nigger: The Strange Career of a Troublesome Word and Race, Crime, and the Law—a tour de force about the controversial issue of personal interracial intimacy as it exists within ever-changing American social mores and within the rule of law.

Fears of transgressive interracial relationships, informed over the centuries by ugly racial biases and fantasies, still linger in American society today. This brilliant study—ranging from plantation days to the present—explores the historical, sociological, legal, and moral issues that continue to feed and complicate that fear.

In chapters filled with provocative and cleanly stated logic and enhanced by intriguing historical anecdotes, Randall Kennedy tackles such subjects as the presence of sex in racial politics and of race in sexual politics, the prominence of legal institutions in defining racial distinction and policing racial boundaries, the imagined and real pleasures that have attended interracial intimacy, and the competing arguments around interracial romance, sex, and family life throughout American history.

Table of Contents

• Introduction
• One – In the Age of Slavery
• Two – From Reconstruction to Guess Who’s Coming to Dinner?
• Three – From Black-Power Backlash to the New Amalgamationism
• Four – Race, Racism, and Sexual Coercion
• Five – The Enforcement of Antimiscegenation Laws
• Six – Fighting Antimiscegenation Laws
• Seven – Racial Passing
• Eight – Passing the the Schuyler Family
• Nine – Racial Conflict and the Parenting of Children: A Survey of Competing Approaches
• Ten – The Tragedy of Race Marching in Black and White
• Eleven – White Parents and the Black Children in Adoptive Families
• Twelve – Race, Children, and Custody Battles: The Special Status of Native Americans
• Afterword
• Notes
• Bibliography
• Acknowledgments
• Index

Read an excerpt of the book here.

Crimes of ‘Blood’: A comparative analysis of South Africa’s Immorality Act (1927 & 1950) and Prohibition of Mixed Marriages Act (1949), and Miscegenation Laws in North America

W.E.B. DuBois Insitute for African and African American Research at Harvard University
Date: Spring 2010

Zimitri Erasmus, Senior Lecturer in Sociology
University of Cape Town

This study compares the effects of Miscegenation Laws in 20th century North America with those of apartheid South Africa’s Immorality (1927 & 1950) and Prohibition of Mixed Marriages (1949) Acts. It draws on three sets of primary data: a) law reports of cases tried and sent for appeal – under various versions of the Immorality Act – before 1948 under the government of the Union of South Africa and after 1948, under the Apartheid government; b) House of Assembly and Senate Debates of the South African Parliament, under both the Union and Apartheid governments; and c) related Government Commission Reports. It also draws on already existing analyses of similar data from the North American experience to produce a comparative analysis of relevant laws in South Africa and North America.

The project examines the logic, procedures and socio-political effects of these key laws of Grand Apartheid. I ask four broad questions:

• What can we learn from the North American body of knowledge on the administration of ‘interracial’ sex and marriage that might be of relevance to such administration in colonial and apartheid South Africa?
• What is different about the South African case?
• How does this difference contribute to knowledge in this field?
• What does this comparative analysis offer in support of a critical literacy for the use of ‘race’?

The Historical Legal Construction of Black Racial Identity of Mixed Black-White Race Individuals: The Role of State Legislatures

Paper presented at the annual meeting of the Western Political Science Association
Manchester Hyatt
San Diego, California
2008-03-20

Richard T. Middleton, IV, Associate Professor of Political Science
University of Missouri, St. Louis

This research paper is an analysis of the historical legal construction of black racial identity of mixed black-white race individuals in America.  In particular, I investigate how state legislatures in the United States constructed black racial identity through the enactment of laws and constitutional provis ions. This research identifies the following two-part framework by which state legislatures historically used the language of the law to coerce mixed black-white race individuals to adopt a personal sense of collective identity with people of black African ancestry: (1) identification of mixed black-white race individuals and blacks/Negroes as constituting two separate racial groups yet speaking of them in the same blush and disadvantaging them the same, and (2) abandoning recognition of mixed black-white race individuals (mulattoes) as a distinct racial group from Negroes/blacks through the enactment of statutes that espoused the rule of hypodescent. To provide empirical support for this paper’s thesis, a survey of statutes across all fifty states ranging from the colonial period up to the mid-1900s is conducted.

Read the entire paper here.  Supporting documents: 1 and 2.