Mixed Race Studies

Accordingly, the demand for statistical recognition of mixed-race persons—and acknowledgement of all aspects of an individual’s racial identity—is occurring within a sociopolitical context that values White ancestry and denigrates non-White ancestry. In such a racial caste system, it is impossible to acknowledge mixed-race persons officially without actually elevating the status of those who can claim to be other than “pure” Black, no matter how egalitarian the intent of the MCM [Multiracial Category Movement]. This same elevation of mixed-race classes is evident in various Latin American countries and in apartheid South Africa in ways that powerfully illuminate the implications of furthering multiracial discourse in the United States.

Tanya Katerí Hernández, “‘Multiracial’ Discourse: Racial Classifications in an Era of Color-blind Jurisprudence,” Maryland Law Review, Volume 57, Issue 1 (1998): 121. http://digitalcommons.law.umaryland.edu/mlr/vol57/iss1/5/.

“Multiracial” Discourse: Racial Classifications in an Era of Color-blind Jurisprudence

Maryland Law Review
Volume 57, Issue 1 (1998)
pages 97-173

Tanya Katerí Hernández, Professor of Law
Fordham University

• INTRODUCTION
• I. THE BACKGROUND AND MOTIVATION OF THE MULTIRACIAL CATEGORY MOVEMENT
• II. THE ADVERSE CONSEQUENCES OF MULTIRACIAL DISCOURSE
  • A. The Reaffirmation of the Value of Whiteness in Racial Hierarchy
  • B. The Dissociation of a Racially Subordinated Buffer Class from Equality Efforts
  • C. The Continuation of the Color-Blind Jurisprudence Trajectory
    • 1. The Historical Meaning of Race Expelled from Analysis of Racial Discrimination
    • 2. Societal Discrimination Expelled from Analysis of Racial Discrimination
    • 3. The Judicial View of Race-Conscious Equality Measures as Harmful Stereotyping
    • 4. The Judicial Excision of Race from Racial Discrimination Discourse
  • D. Measurement of Racial Progress Hindered
• III. A RACE-CONSCIOUS RACIAL CLASSIFICATION PROPOSAL
• CONCLUSION

Introduction

The debate, in short, is really not so much about a multiracial box as it is about what race means-and what it will come to mean as the society approaches the millennium.
—Ellis Close

For the past several years, there has been a Multiracial Category Movement (MCM) promoted by some biracial persons’ and their parents for the addition of a “multiracial” race category on the decennial census. The stated aim of such a new category is to obtain a more specific count of the number of mixed-race persons in the United States and to have that tallying of mixed-race persons act as a barometer and promoter of racial harmony. As proposed, a respondent could choose the “multiracial” box in lieu of the presently listed racial classifications of American Indian or Alaskan Native, Asian or Pacific Islander, Black, White, or Other. The census schedule also includes a separate Hispanic Origin ethnicity question. On October 29, 1997, the U.S. Office of Management and Budget (OMB) adopted a federal Interagency Committee recommendation to reject the multiracial category in favor of allowing individuals to check more than one racial category. Some MCM proponents are not satisfied with the OMB’s decision, because multiple box checking does not directly promote a distinct multiracial identity.  These MCM proponents are committed to continue lobbying for a multiracial category on the 2010 census. Further, an OMB official has indicated that the issue of a multiracial category might be reconsidered with an increase in mixed-race persons. Yet, the significance of the MCM extends beyond the actual decision of whether and how mixed-race persons should be counted.

The discourse surrounding the advocacy for a census count of mixed-race persons has social and legal ramifications apart from the limited context of revising a census form. The principle underlying this Article is that the law should be understood in terms of its social consequences. From a legal-realist perspective, it is important to scrutinize the neutral discourse characteristic among those proposing a legally mandated mixed-race census count. Such analysis exposes its moral and political significance and ramifications. “[L]anguage… can powerfully evoke and enforce hidden signs of racial superiority, cultural hegemony, and dismissive ‘othering’ of people.” The power of discourse arises from its ability to construct a public narrative and
then obstruct counter-explanations for social reality.

Multiracial discourse contends that a mixed-race census count is necessary because race has become too fluid to monitor. The theory posits that the inability to identify psychologically with just one racial category is inherent to mixed-race persons alone and that the growing number of mixed-race persons demonstrates the futility of racial categorization as a practice. For instance, MCM proponents often refer to the growing numbers of persons who choose the “Other Race” category to support the premise that the racial categories are inadequate for mixed-race persons. The multiracial narrative of modern race being more fluid than in the past corresponds with and reinforces the color-blind jurisprudence presentation of race as devoid of meaning. Thus, “multiracial discourse” has an immediate meaning as the rhetoric deployed in the campaign for a specific count of mixed-race persons, and a more expansive meaning as the approach to race that views the increasing diversity of society as deconstructing and transcending race. Multiracial discourse misconstrues the meaning of race used in the group measurement of racial disparity, with an individual focused assessment of fluid cultural identity. Such a view of race negates its sociopolitical meaning26 and thereby undermines effective legal mechanisms to ameliorate racial discrimination. In fact, the MCM can be viewed as a metonym for the more general colorblind approach to race evident in recent Supreme Court cases.

Both the immediate and expansive meanings of “multiracial discourse” are interrelated and involve a highly politicized discourse. Accordingly, this Article shall question the assumptions that underlie both levels of meaning in order to assess the continuing significance of the racial classifications that multiracial discourse challenges. This analysis reveals that although multiracial discourse may seem benign and appealing on a humanitarian level, its implementation will produce counter-egalitarian results in the struggle for racial equality. The MCM’s campaign for color-blind treatment of racial hierarchy cloaks the racial significance of ostensibly race-neutral laws, as the Supreme Court’s recent movement toward color-blind anti-discrimination jurisprudence has done.

Because of the manner in which the census context highlights the dangers of multiracial discourse to racial justice efforts, this Article will focus upon the census as a well-known paradigm for the way racial classifications function. In particular, to demonstrate the folly of color-blind approaches to race issues, the author enlists the debate centered on the demand for a census count of mixed-race persons. Because the census is the cornerstone of the federal statistical system, the battle over the reform of the census racial classifications is significant and far-reaching.The census reflects in large measure the nation’s struggle over how human beings will be known politically in a racially stratified society.  The debate over a multiracial category reveals an intriguing aspect about how we conceptualize race. An examination of multiracial discourse reveals that multiracial-category proponents misperceive the meaning of race relevant to the census inquiry by conflating a cultural approach to race with a sociopolitical approach to race. Therefore, this Article analyzes the widespread legal ramifications of the MCM and assesses whether the MCM’s proposal effectively advances its stated goal of promoting racial equality. After analyzing the legal import of multiracial discourse, the Article determines that the MCM misperception of race and its fluidity inadvertently furthers the progression of color-blind jurisprudence in direct contravention of the MCM goal of promoting racial equality. Part I provides background and identifies the motivating forces behind the MCM as a color-blind movement. Part II critiques the MCM for its adverse effects upon racial justice efforts in furthering the manner in which color-blind jurisprudence disregards actual experiences of racial discrimination in the promotion of White supremacy. Part III proposes a race-conscious classification system, which reflects the sociopolitical nature of race, to monitor racial discrimination more effectively and to dislodge the force of multiracial discourse…

Read the entire article here.

White persons and Malayans are forbidden to intermarry and both are forbidden to marry Negroes or persons of Negro descent to the third generation. The statutory mode of expression to cover persons of mixed white and Negro blood is an awkward one and makes doubtful just what proportion of Negro blood will disqualify one from marrying a pure white person or Malayan. It is suggested that if the person in question has some non-Negro blood and that if all of his parents and grand-parents also had some, he is eligible for purposes of the statute, even though he is predominantly Negro.

John S. Strahorn Jr., “Void and Voidable Marriages in Maryland and Their Annulment,” Maryland Law Review, Volume 2, Issue 3 (1938): 231.

Constitutionality Of Miscegenation Statutes: McLaughlin v. Florida

Maryland Law Review
Volume 25, Issue 1 (1965)
pages 41-48

Lee M. Miller

The appellants, a Negro man and a white woman, were convicted of violating a Florida statute which proscribed cohabitation between Negro and white persons who are not married to each other. The Florida Supreme Court upheld the conviction. On appeal to the Supreme Court of the United States, the appellants claimed: (1) The statute was invalid as a denial of equal protection of the laws since it applied only to members of certain races, and (2) they were denied due process and equal protection of the laws because a Florida law prohibiting interracial marriage prevented them from establishing the defense of common law marriage. The appellants thus hoped to reach the issue of whether the state’s prohibition of interracial marriage contravened the fourteenth amendment. The Supreme Court, basing its decision on the single issue of equal protection (appellants’ first claim), set aside the conviction and invalidated the cohabitation statute. Finding this claim to be dispositive of the case, the Court refrained from expressing any view as to the constitutionality of the law prohibiting interracial marriages.

The provisions of state statutes banning interracial marriage, often called miscegenation statutes, vary considerably, but today all states which have such statutes ban Negro-white marriages, and all declare the proscribed interracial marriages void. Most statutes provide criminal penalties, thus making race an element of a crime. The Maryland statute, for example, proscribes Negro-white and Malay-white marriages and has a mandatory penitentiary sentence.

At one time or another, over half the states had miscegenation statutes. Although these statutes have been repealed by twenty state legislatures, they remain in effect in nineteen other states. Six states have included miscegenation prohibitions in their state constitutions. The highest courts of only two states have held their miscegenationn statutes unconstitutional. Alabama declared its statute unconstitutional in 1872 but reversed itself five years later; California declared its statute unconstitutional in 1948. State courts and lower federal courts have upheld the constitutionality of such statutes. The Supreme Court of the United States has never ruled on the issue. In two cases reaching that Court in recent years, certiorari was denied in one and the issue bypassed in the other.”…

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Void and Voidable Marriages in Maryland and Their Annulment

Maryland Law Review
Volume 2, Issue 3 (1938)
Article 2
pages 211-259

John S. Strahorn Jr., Professor of Law
University of Maryland

The essential task of this article will be to classify invalid or defective marriages in Maryland into those which are totally void and hence subject to collateral attack and those which are only voidable by appropriate steps of direct attack taken during the joint lifetime of the spouses. But, as investigation of this question requires a survey of all the local law concerning the requirements of and impediments to a valid marriage, and, as well, an inquiry into the procedural aspects of annulment, the article will be, in effect, one on the broader questions of validity of marriage and annulment in Maryland.

THE GENERAL DIFFERENCE BETWEEN TOTAL VOIDNESS AND VOIDABILITY

Terminology presents the first problem. The phrase “totally void” will be used herein to express the idea of a marriage’s possessing some defect rendering it susceptible to collateral attack, even after the death of one or both of the spouses. For such marriages no direct step or proceeding to annul is necessary, although the latter may be desirable. “Voidable” will be used to express the idea that the defect, at most, permits the validity of the marriage to be directly attacked by appropriate steps during the joint lifetime of the spouses, although without that the invalidity may not be asserted collaterally in any other proceeding. “Valid” and “completely valid” will be used interchangeably in the sense that the marriage meets all the requirements and encounters none of the impediments so that it can withstand both direct and collateral attack.

In addition to the question of total voidness or mere voidability, there must be considered whether, if the marriage be only voidable, it may be avoided by simple private act, or a judicial proceeding is necessary. Related to this is the matter of ratification, which is possible for some, though not all, voidable marriages and which is considered by some writers to be possible for certain marriages which are otherwise totally void. Whether such a latter class exists in Maryland law will be one of the inquiries of this article.’ A certain confusion exists between a marriage’s being totally void although capable of ratification, and its being voidable by private act without judicial proceeding…

…C. Race (Miscegenation).

White persons and Malayans are forbidden to intermarry and both are forbidden to marry Negroes or persons of Negro descent to the third generation. The statutory mode of expression to cover persons of mixed white and Negro blood is an awkward one and makes doubtful just what proportion of Negro blood will disqualify one from marrying a pure white person or Malayan. It is suggested that if the person in question has some non-Negro blood and that if all of his parents and grand-parents also had some, he is eligible for purposes of the statute, even though he is predominantly Negro.

Is a marriage which is definitely under the statutory ban totally void or only voidable? While no Maryland case has ever dealt directly with either the prohibition generally or the specific problem, a strong dictum in Jackson v. Jackson has indicated that such a marriage, forbidden by our statute, is so totally void that it cannot be recognized even when performed in a state sanctioning such marriages. As has been suggested, this should also determine the issue of total voidness or voidability for the purpose of internal law. This is particularly so in view of the fact that the Jackson case dictum put this type of marriage under the part of the exception to the conflicts rule for those marriages which “the local law making power has declared shall not have
any validity.

Granting such marriages to be totally void, what procedures are available for directly declaring that quality. The statutory procedure does not apply. No doubt, a divorce on the ground of marriage void ab initio could be procured. It is doubtful that an annulment under the general equity practice could be secured. A successful criminal prosecution for entering into the unlawful marriage (if the ceremony occurred in Maryland) or for illicit cohabitation s in Maryland under such an invalid marriage might accomplish the result of a judicial declaration of nullity, even though this does not come under the statutory method, which makes specific mention of criminal prosecution as an annulment device…

Read the entire article here.