Mixed Race Studies

A House Divided: The Invisibility of the Multiracial Family

Harvard Civil Rights-Civil Liberties Law Review
Volume 44, Number 1
2009
pages 231-253

University of Iowa Legal Studies Research Paper No. 09-26

Angela Onwuachi-Willig, Professor of Law, Charles M. and Marion J. Kierscht Scholar
University of Iowa College of Law

Jacob Willig-Onwuachi, Assistant Professor of Physics
Grinnell College

This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial.

This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, for such couples. It also uses Professor Kimberlé Crenshaw‘s theory of intersectionality to explicate how couples in general may experience societal benefits and disadvantages differently based upon various intersections of identity categories.

Second, this Article examines housing discrimination law to demonstrate the connection between the daily social disadvantages of interracial, heterosexual couples and families and the lack of legal recognition for interracial couples and families. Specifically, Part III of this Article utilizes housing discrimination law to show how law can ignore the existence of interracial, heterosexual couples, thereby reinforcing an ideal of marriage and family as monoracial. In so doing, this Part explains how housing discrimination statutes assume that plaintiffs will be monoracial, heterosexual couples, and fail to fully address the harms to interracial, heterosexual couples who are subjected to discrimination in housing and rental searches because of their interraciality (i.e., because they have engaged in race-mixing). Part III.A describes the legal framework for evaluating housing discrimination cases, including the means for analyzing discrimination by association cases in court.  Part III.B details the categories of plaintiffs who can allege discriminatory action “because of” race, familial status, or marital status under housing discrimination statutes. It then explicates how interracial couples who are victims of discrimination in housing because of their status as an interracial couple alone do not neatly fit within any of these categories.

Third, this Article calls for housing discrimination statutes to explicitly recognize interracial couples and families, thereby filling this hole in anti-discrimination law. Specifically, Part IV proposes that legislators add a new protected class category for “interraciality” to housing discrimination statutes. The Article argues that such an addition is the only means by which the law can address the “expressive harms” or lack of dignity that result from the current framing of family in housing discrimination statutes as monoracial.

This Article concludes with a call for statutes and rights to be legally framed in a manner that is inclusive, rather than exclusive.

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Reflections: An Anthology of African-American Philosophy, 1st Edition

Cengage Learning
2000
464 pages
Paperback ISBN-10: 0534573932  ISBN-13: 9780534573935

Edited by:

James Montmarquet, Professor of Philosophy
Tennessee State University

William Hardy, Associate Professor of Philosophy and Religion
Tennessee State University

This anthology provides the instructor with a sufficient quantity, breadth, and diversity of materials to be the sole text for a course on African-American philosophy. It includes both classic and more contemporary readings by both professional philosophers and other people with philosophically intriguing viewpoints. The material provided is diverse, yet also contains certain themes which instructors can effectively employ to achieve the element of unity. One such theme, the debate of the “nationalist” focus on blackness vs. the many critics of this focus, runs through a great number of issues and readings.

Table of Contents

• Preface.
• Introduction.
• PART ONE: FOUNDATIONS-RACE AND RACISM.
  • 1. W.E.B. DuBois: From The Souls of Black Folk.
  • 2. Molefi K. Asante: Racism, Consciousness, and Afrocentricity.
  • 3. Kwame Anthony Appiah: Racisms.
  • 4. J. L. A. Garcia: The Heart of Racisms. Contemporary Issue: Views on “Mixed Race”.
  • 5. Naomi Zack: Mixed Black and White Race and Public Policy.
  • 6. Lewis R. Gordon: Race, Biraciality, and Mixed Race-In Theory.
• PART TWO: MORAL AND POLITICAL PHILOSOPHY-NATIONALISM, SEPARATISM, AND ASSIMILATION.
  • 7. Martin R. Delaney: The Condition, Elevation, Emigration, and Destiny of the Colored Peoples of the United States.
  • 8. Frederick Douglass: The Future of the Negro, The Future of the Colored Race, The Nation’s Problem, and On Colonization.
  • 9. Marcus Garvey: From Philosophy and Opinions of Marcus Garvey.
  • 10. Maulana Karenga: The Nguzo Saba (The Seven Principles): Their Meaning and Message.
  • 11. Molefi K. Asante: The Afrocentric Idea in Education.
  • 12. Cornel West: The Four Traditions of Response. Contemporary Issue: “Ebonics”.
  • 13. Geneva Smitherman: Black English/Ebonics: What it Be Like?
  • 14. Milton Baxter: Educating Teachers about Educating the Oppressed. Feminism, Womanism, and Gender Relations.
  • 15. Sojourner Truth: Ain’t I a Woman?
  • 16. Patricia Hill Collins: The Social Construction of Black Feminist Thought.
  • 17. bell hooks: Reflections on Race and Sex.
  • 18. Angela P. Harris: Race and Essentialism in Feminist Legal Theory.
  • 19. Charles W. Mills: Do Black Men Have a Moral Duty to Marry Black Women? Contemporary Issue: Women’s Rights and Black Nationalism.
  • 20. E. Francis White: Africa on My Mind: Gender, Counterdiscourse, and African American Nationalism.
  • 21. Amiri Baraka: Black Woman. Violence, Liberation, and Social Justice.
  • 22. Martin Luther King, Jr.: Letter from a Birmingham Jail.
  • 23. Malcolm X: Message to the Grass Roots.
  • 24. Howard McGary: Psychological Violence, Physical Violence, and Racial Oppression.
  • 25. Laurence M. Thomas: Group Autonomy and Narrative Identity. Contemporary Issue: Affirmative Action.
  • 26. Bernard Boxill: Affirmative Action.
  • 27. Shelby Steele: Affirmative Action. Ethics and Value Theory.
  • 28. Alain Locke: Values and Imperatives.
  • 29. Michele M. Moody-Adams: Race, Class, and the Social Construction of Self-Respect.
  • 30. Laurence M. Thomas: Friendship.
  • 31. Cornel West: Nihilism in Black America.
  • 32. Katie G. Cannon: Unctuousness as a Virtue: According to the Life of Zora Neale Hurston. Contemporary Issue: A Classic Question of Values, Rights, and Education.
  • 33. Booker T. Washington: Atlanta Exposition Address.
  • 34. W.E.B. DuBois: The Talented Tenth.
• PART THREE: PHILOSOPHY AND RELATED DISCIPLINES.
  • 35. Patricia J. Williams: Alchemical Notes: Reconstructing Ideals from Deconstructed Rights.
  • 36. Regina Austin: Sapphire Bound!
  • 37. Derrick Bell: Racial Realism-After We’re Gone: Prudent Speculations on America in a Post-Racial Epoch.
  • 38. John Arthur: Critical Race Theory: A Critique. Contemporary Issue: Racist Hate Speech.
  • 39. Charles Lawrence and Gerald Gunther: Prohibiting Racist Speech: A Debate. Aesthetics.
  • 40. James Baldwin: Everybody’s Protest Novel.
  • 41. Larry Neal: The Black Arts Movement.
  • 42. Angela Y. Davis: Billy Holiday’s “Strange Fruit”: Music and Social Consciousness.
  • 43. Ralph Ellison: Blues People. Contemporary Issue: Rap Music.
  • 44. Crispin Sartwell: Rap Music and the Uses of Stereotype.
  • 45. Kimberle Crenshaw: Beyond Racism and Misogyny: Black Feminism and 2 Live Crew. Philosophy and Theology.
  • 46. David Walker: David Walker’s Appeal to the Colored Citizens of the World, and Very Expressly, to Those of the United stated.
  • 47. James H. Cone: God and Black Theology.
  • 48. Victor Anderso: Ontological Blackness in Theology.
  • 49. Anthony Pinn: Alternative Perspectives and Critiques. Contemporary Issue: Womanist Theology and the Traditionalist Black Church.
  • 50. Cheryl J. Sanders: Christian Ethics and Theology in a Womanist Perspective.
  • 51. Delores Williams: Womanist Reflections on “the Black Church,” the African-American Denominational Churches and the Universal Hagar’s Spiritual Church.
• SUGGESTIONS FOR FURTHER READING.

The Value of Intersectional Comparative Analysis to the “Post-Racial” Future of Critical Race Theory: A Brazil-U.S. Comparative Case Study

Connecticut Law Review
Volume 43, Issue 5 (July 2011)
pages 1407-1437

Tanya Katerí Hernández, Professor of Law
Fordham University

This Commentary Article aims to illustrate the value of comparative law to the jurisprudence of Critical Race Theory (CRT), particularly with reference to the CRT project of deconstructing the mystique of “postracialism.” The central thesis of the Article is that the dangerous seductions of a U.S. ideology of “post-racialism” are more clearly identified when subject to the comparative law lens. In particular, a comparison to the Brazilian racial democracy version of “post-racialism” is an instructive platform from which to assess the advisability of promoting post-racial analyses of U.S. racial inequality. In Part I the Article introduces the value of comparative law to the future development of CRT. Part II provides an overview of Brazilian “post-racial” discourse. Part III then details the quantitative and qualitative indicators of racial discrimination and intersectional race and gender discrimination in Brazil. Part IV focuses upon the Brazilian legal opposition to post-racialism as evidenced by a recent intersectional anti-discrimination case. The Article then concludes that the critical comparative examination of the Brazilian version of “post-racialism” assists in elucidating the concrete counterintuitive harms of a “post-racial” perspective in the United States.

ARTICLE CONTENTS

• I. INTRODUCTION
• II. BRAZILIAN “POST-RACIAL” RACIAL DISCOURSE
• III. QUANTITATIVE AND QUALITATIVE INDICATORS OF DISCRIMINATION IN BRAZIL
• IV. THE INTERSECTIONAL POSITION OF AFRO-BRAZILIAN WOMEN
• V. THE INTERSECTIONAL CASE OF TIRIRICA

I. INTRODUCTION

In her article in this volume, Twenty Years of Critical Race Theory: Looking Back To Move Forward, Kimberlé Williams Crenshaw turns her attention to considering the “contemporary significance of CRT’s trajectory in light of today’s ‘post-racial’ milieu.” Post-racialism is characterized by a public policy agenda of colorblind universalism rooted in the assertion that society has transcended racism. Post-racialism incorporates colorblindness but is distinct in extending beyond the colorblindness retreat from race as primarily an aspiration for eliminating racism. In contrast, the rhetoric of post-racialism contends that racism has already been largely transcended.

In Crenshaw’s consideration of post-racialism she notes that the present challenge to Critical Race Theory (CRT) is to preclude an “overinvestment in the symbolic significance” of post-racialism as a racial frame that disregards manifestations of racial inequality in its celebration of formal equality and a colorblindness that equates the articulation of racial concerns with an act of racism. Crenshaw convincingly demonstrates the fallacy of post-racialism and the simultaneous difficulty in dispelling it, given the contemporary racial fatigue and public desire to foreclose any discussions of race. To combat the Obama mania that Crenshaw notes sanctions all talk of racism as a racial grievance itself, Crenshaw urges CRT to develop a broader project “to remap the racial contours in the way that people see the world that we live in—then in so doing . . . create a new set of possibilities for racial-justice advocates.” Crenshaw urges that the “next turn in CRT should be decidedly interdisciplinary, intersectional and cross-institutional.” In this Commentary Article, I would like to suggest that the next turn in CRT also focus more deeply on comparative law.

Because the post-racialism racial frame casts a veil which hinders the ability to see racial disparities and understand them as connected to various forms of racial discrimination, what is needed is a mechanism for refocusing the U.S. racial lens. Comparative law can make a useful contribution in the effort to refocus the racial lens. A key insight from comparative law is its “potential for sharpening, deepening and expanding the lenses through which one perceives law,” because of its ability to “challenge entrenched categorizations and fundamental assumptions in one’s own and others’ legal cultures.” Indeed, anthropologists have long noted that we cannot fully see and appreciate our own “culture” until we have compared it to that of another. A number of CRT scholars and related LatCrit [Latino Critical Race Studies] scholars have started the project of incorporating a comparative law component into CRT and the associated endeavor of applying CRT to non-U.S. legal jurisdictions. What I am underscoring in this Article is the particular usefulness that comparative law presents for the specific project of combating the post-racialism racial frame. This is because contemporary U.S. CRT scholars can only set forth conjectures about the future long-term dangers of post-racial rhetoric (such as hindering the pursuit of racial equality by shutting down any discussion of race in favor of equating racial disparities with cultural deficiencies and socio-economic disadvantages). In contrast, a comparative consideration of another region in which a form of post-racialism has long existed provides the opportunity to examine the actual adverse consequences of post-racial rhetoric.

As a vehicle for illustrating the value of comparative law to the CRT project of dismantling the post-racialism racial frame, I shall provide a comparative analysis of an instructive Brazilian intersectionality case. Because Brazil is a country that has long claimed that all racial distinctions were abandoned with the abolition of slavery, it is an instructive platform from which to assess the viability of contemporary assertions of postracialism in the United States. Yet, as shall be discussed below, growing discrimination jurisprudence in Brazil shows the longstanding post-racial assertion to be false. To the extent that a century-old claim to a form of post-racialism in Brazil is shown to be a fallacy, the many parallels that exist between Brazil and the United States enable a salient critique of U.S. post-racialism. In particular, because of their objectified and denigrated status, examining the treatment of Black women as an intersectional matter, helps to demystify the barriers to productive transnational comparisons of racial ideologies between the United States and Latin America. In order to be concrete, I shall focus on a recent intersectional discrimination case that was litigated in Brazil. But before discussing the case, it will be helpful to first explain the contours of the “post-racial” Brazilian racial ideology.

II. BRAZILIAN “POST-RACIAL” RACIAL DISCOURSE

Like the United States, Brazil is a racially diverse nation with a significant number of persons of African descent stemming from the country’s history of slavery. Yet Brazil’s involvement in the African slave trade was even longer and more intense than that of the United States. This accounts for the fact that, aside from Nigeria, Brazil is the nation with the largest number of people of African descent in the world. After emancipation, Brazil continued to be a racially divided nation, but occasionally provided social mobility for a few light-skinned mixed-race individuals. This social mobility was directly tied to the racist nationbuilding concepts of branqueamento (whitening) and mestiçagem (racial mixing/miscegenation), which can best be described as campaigns to whiten the population through a combination of European immigration incentives and the encouraging of racial mixture in order to diminish over time the visible number of persons of African decent. Indeed, the social recognition of the racially-mixed racial identity of mulato/pardo was a mechanism for buffering the numerical minority of white-identified elite Brazilians from the discontent of the vast majority of persons of African descent. Greater symbolic social status and occasional economic privilege were accorded based on one’s light skin color and approximation of a European phenotype, which simultaneously denigrated Blackness and encouraged individuals to disassociate from their African ancestry. It should be noted that in terms of concrete economic benefits, few mulattoes radically superseded the status of those Afro-descendants viewed as “Black.” Rather, the recognition of mulattoes as racially distinctive from Blacks served primarily as a kind of “psychological wage” associated with the prestige of approximating whiteness without any significant groupwide monetary benefit for such status. As a result, Brazil was able to maintain a rigid racial hierarchy that served white supremacy in a demographically-patterned society where people of African descent approximated and sometimes even outnumbered the white elite. This is in marked contrast to the demographic pattern in the United States, where, with just a few exceptions, Blacks have always been a numerical minority and have thus been more vulnerable to the white majority’s enforcement of Jim Crow racial segregation after emancipation from slavery. In Brazil, with its greater population of people of African descent, the ideological use of the “mulatto escape hatch” was such an effective tool of racial subordination that Jim Crow legal segregation was never needed and all racial justice movements were efficiently hindered. But it was the absence of Jim Crow in Brazil that later enabled the nation to promote itself as a country in which racial mixture had created a racially harmonious society. In fact, until recently, it has been a firmly entrenched notion that Brazil was a model of race relations that could be described as a “racial democracy” exemplified by racial fluidity in its racial classification practices. Hence, post-racialism in Brazil, and much of Latin America is characterized by a negation that racism exists after the abolition of slavery. The denial of racism is justified by the racial mixture of the population which has presumably “transcended” racism. Existing racial disparities are instead attributed to the cultural deficiencies and socio-economic disadvantages of Afro-Brazilians. As a result, those who raise the issue of racial discrimination are viewed as racist themselves. These facets of Brazilian post-racialism closely parallel the rhetoric of post-racialism in the United States and the related fascination with racial mixture as emblematic of racial harmony…

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