Mixed Race Studies

Fear of a Multiracial Planet: Loving’s Children and the Genocide of the White Race

Fordham Law Review
Volume 86, Issue 6 (2018)
pages 2761-2771

Reginald Oh, Professor of Law
Cleveland-Marshall College of Law, Cleveland, Ohio

Part I analyzes the Loving decision striking down antimiscegenation laws and examines the segregationists’ justifications for antimiscegenation laws. Next, Part II explores the historical opposition of white segregationists to interracial marriages, families, and children and argues that the principle and practice of endogamy is a central feature of Jim Crow segregation. Finally, Part III examines the present ideology of white nationalism and shows that white nationalists oppose interracial unions and families for some of the same reasons that white segregationists opposed them. Specifically, white nationalists oppose interracial families because they are one of the main factors contributing to the so-called genocide of the white race.

Read the entire article here.

Multiracial Malaise: Multiracial as a Legal Racial Category

Fordham Law Review
Volume 86, Issue 6 (2018)
pages 2783-2793

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence
University of Maryland Francis King Carey School of Law

The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only on government “racial” definitions. Multiracial individuals should enjoy the freedom to self-identify as they wish—and, like others, be afforded the protections of anti discrimination law. The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection” protecting the interests of white Americans from usurpation by non whites and, unless the creation of a separate multiracial legal category advances this goal, change will be resisted. Commentaries grounded in Fourteenth Amendment Equal Protection Clause and federal statutory anti-discrimination jurisprudence shape the construction of racial categories in U.S. law. This jurisprudence influences the racial categories and definitions used for the census. The next Part briefly discusses the attempt to get a multiracial category on the U.S. census.

[R]ace is at once an empty category and a powerful instrument. —Melissa Nobles¹

Racism is about race: more races can lead . . . to changes in the way racism is presented, and ultimately to more, rather than less, racism. —Paulette M. Caldwell²

INTRODUCTION

The fiftieth anniversary of Loving v. Virginia,³ which struck down Virginia’s antimiscegenation statute, provides an opportunity to reflect on Loving’s impact. A 2017 Pew Research Center analysis of U.S. Census Bureau data found that interracial marriages constitute 17 percent of all marriages,⁴ which represents an increase of 14 percent since the U.S. Supreme Court decided Loving in 1967.⁵ One byproduct of the increase in interracial marriages is the growing number and prominence of multiracial children. For example, a July 2017 Brookings Institution report characterizes Barack Obama, born six years before Loving, as the person who gave growing “prominence” to the emergence of multiracial people in America.⁶

Increasingly, there is interest in the offspring of interracial unions and how they compare to monoracial individuals. The Brookings Institution, for example, reported that “there is no test score gap between white and multiracial high school students.”⁷ The report seems to define “multiracial” very narrowly as people with parents from different racialized groups.⁸ Yet the multiracial population in the United States is not a new phenomenon. By limiting multiracial “to first-generation children of interracial couples,”⁹ as others have, the report fails to acknowledge older and larger generations whose genealogical mixture is more distant. Many of the people within this older multiracial population are racially classified by government and custom as black or African American, and they constitute “around 40 [percent] of the total population.”¹⁰ In contrast, according to the 2000 census, firstgeneration multiracial individuals (including those with remote African ancestry) make up roughly 2 percent of the total population and are more likely to be seen as multiracial.¹¹

Proponents of a multiracial legal category complain that multiracial individuals are harmed by not being recognized under law as multiracial. Specifically, they argue that the law neither recognizes their personal identity nor protects their right to self-identify racially and to have that identity accepted.¹² Despite the long history of multiracial people in the United States, Fourteenth Amendment equal protection constitutional jurisprudence, statutory antidiscrimination laws, and the census do not formally recognize a separate multiracial category. Thus, the question is whether legal recognition is needed to remedy race-based discrimination experienced by multiracial individuals.¹³

Historically, courts grappling with racial-identity questions looked at three factors, phenotypical characteristics, ancestry, and racial reputation in the community, to resolve the issue.¹⁴ The courts relied on a binary classification system of white and nonwhite; the underlying issue in these cases being whether one party had any nonwhite ancestry. Thus, until recently, Barack Obama, despite his white mother, would be classified racially as black, since twentieth-century notions of race held that any known African ancestry made one black.¹⁵

Admittedly, since Loving, conventional notions of race in the United States have “destabilized” as a result of “increases in immigration, intermarriage, and cross-racial adoptions.”¹⁶ Reflecting the era of racial self-identification,¹⁷ racial categories are more fluid in the twenty-first century, even for people who, historically, racially classified as black. These attitudinal changes are reflected in a 2007 Pew Research Center finding that “[n]early four-in-ten African Americans (37%) say that blacks can no longer be thought of as a single race” because of increasing diversity within that community.¹⁸

Conventional blackness, where one is “black” if one’s African ancestry is visible or known,¹⁹ is on the wane. As critical race theory legal scholar Neil Gotanda posits, race—particularly the racial category “black”—while a consistent and constant “social divider,” is not a “stable, coherent legal and social concept.”²⁰ Today, people with some African ancestry may move away from blackness and, in some respects, the legal multiracial category movement is an example.²¹

The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only on government “racial” definitions. Multiracial individuals should enjoy the freedom to self-identify as they wish—and, like others, be afforded the protections of antidiscrimination law. The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection”²²— protecting the interests of white Americans from usurpation by nonwhites and, unless the creation of a separate multiracial legal category advances this goal, change will be resisted.

Commentaries grounded in Fourteenth Amendment Equal Protection Clause and federal statutory antidiscrimination jurisprudence shape the construction of racial categories in U.S. law. This jurisprudence influences the racial categories and definitions used for the census. The next Part briefly discusses the attempt to get a multiracial category on the U.S. census…

Read the entire article here.

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…

Kevin Noble Maillard, “The Multiracial Epiphany of Loving.” Fordham Law Review. May 2008, Volume 76, Number 6 pages 2709-2733. http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_76/Maillard_Vol_76_May.pdf.

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.

The Blurring of the Lines: Children and Bans on Interrracial Unions and Same-Sex Marriages

Fordham Law Review
May 2008
Volume 76, Number 6
pages 2733-2770

Carlos A. Ball, Professor of Law and Judge Frederick Lacey Scholar
Rutgers University School of Law, Newark

When Richard Loving and Mildred Jeter drove from their hometown of Central Point, Virginia, to Washington, D.C., on June 2, 1958, in order to get married, Mildred was several months pregnant Later that year—a few weeks before the couple pled guilty to having violated Virginia’s antimiscegenation law—Mildred gave birth to a baby girl. Richard and Mildred had two more children, a son born in 1959 and a second daughter born a year after that.

The legal commentary on Loving v. Virginia usually does not discuss the fact that the couple had children. In some ways, this is not surprising given that their status as parents was not directly relevant to either their violation of the Virginia statute, or to their subsequent constitutional challenge to that law. Concerns about the creation of interracial children, however, were one of the primary reasons why antimiscegenation laws were first enacted in colonial America and why they were later adopted and retained by many states. It is not possible, in other words, to understand fully the historical roots and purposes of antimiscegenation laws without an assessment of the role that concerns related to interracial children played in their enactment and enforcement.

The offspring of interracial unions were threatening to whites primarily because they blurred the lines between what many of them understood to be a naturally superior white race and a naturally inferior black race. As long as there was a clear distinction between the two racial categories—in other words, as long as the two categories could be thought to be mutually exclusive—then the hierarchical racial regimes represented first by slavery, and later by legal segregation, could be more effectively defended. The existence of interracial children destabilized and threatened the understanding of racial groups as essentialized categories that existed prior to, and independent of, human norms and understandings. To put it differently, interracial children showed that racial categories, seemingly distinct and immutable, were instead highly malleable. Therefore, from a white supremacy perspective, it was important to try to deter the creation of interracial children as much as possible, and the ban on interracial marriage was a crucial means to attaining that goal.

Although it is possible to disagree on how much progress we have made as a society in de-essentializing race, it is (or it should be) clear that an essentialized and static understanding of race is both descriptively and normatively inconsistent with the multicultural American society in which we live. In fact, it would seem that we have made more progress in deessentializing race than we have in de-essentializing sex/gender. One of the best examples of this difference in progress is that while we no longer, as a legal matter, think of the intersection of race and marriage in essentialized ways, legal arguments against same-sex marriage are still very much grounded in an essentialized (and binary) understanding of sex/gender.

The conservative critique of same-sex marriage is premised on the idea that men and women are different in essential and complementary ways and that these differences justify the denial of marriage to same-sex couples.  One of the most important of these differences relate to the raising of children. The reasoning—which is found in the arguments of conservative commentators, in the briefs of states defending same-sex marriage bans, and in some of the judicial opinions upholding those bans—is that there is something unique to women as mothers and something (separately) unique to men as fathers that makes different-sex couples able to parent in certain valuable ways that same-sex couples cannot.

These arguments continue to resonate legally and politically because our laws and culture continue to think about sex/gender in essentialized and binary ways. In fact, one of the reasons why same-sex marriage is so threatening to so many is that the raising of children by same-sex couples blurs the boundaries of seemingly preexisting and static sex/gender categories in the same way that the progeny of interracial unions blur seemingly preexisting and static racial categories…

Read the entire article here.