Racial steering in the romantic marketplace

Harvard Law Review

Volumn 107, Issue 4, 1994, Pages 877-894

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EID: 12044255820     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341997     Document Type: Article

References (116)

1. JAMES W. JOHNSON, ALONG THIS WAY 170 (1933).
2. This advertisement was published in The Courier, a Maryland weekly newspaper, on January 8, 1970. See United States v. Hunter, 459 F.2d 205, 209 & n.1 (4th Cir. 1972).
3. Studies demonstrate that, although levels of covert racism remain high, overt discrimination "has lost all social acceptance." David B. Oppenheimer, Negligent Discrimination, 141 U. PA. L. REV. 899, 902-15 (1993); see also Thomas F. Pettigrew, New Patterns of Racism: The Different Worlds of 1984 and 1964, 37 RUTGERS L. REV. 673, 688-89 (1985) (arguing that, although individuals comply publicly with the new norms of equality and racial tolerance, there has been little internalization of these norms).
4. Studies demonstrate that, although levels of covert racism remain high, overt discrimination "has lost all social acceptance." David B. Oppenheimer, Negligent Discrimination, 141 U. PA. L. REV. 899, 902-15 (1993); see also Thomas F. Pettigrew, New Patterns of Racism: The Different Worlds of 1984 and 1964, 37 RUTGERS L. REV. 673, 688-89 (1985) (arguing that, although individuals comply publicly with the new norms of equality and racial tolerance, there has been little internalization of these norms).
5. Moreover, to advertise racial preferences is illegal in the context of housing. See 42 U.S.C. § 3604(c) (1988) (forbidding any person "[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race . . . or an intention to make any such preference, limitation, or discrimination"). Discriminatory advertising of employment opportunities is similarly prohibited. See 42 U.S.C. 2000e-3(b) (1988).
6. Personal advertisements of this sort, short columns in which advertisers communicate their desires for lovers and mates, can be found in the classified sections of myriad newspapers and magazines. It is common for advertisers in these ads to specify their own race and the race of desired respondents. See infra note 7. Typical ads read: "SWF 33, Professional Musician seeks SWM . . . ." BOSTON MAG., Nov. 1993, at 143; "Harvard JD/MBA, banker, single white male, 30, seeks white or Asian female . . . ." NEW YORK MAG., Nov. 8, 1993, at 132; "Attractive, voluptuous SBF, 30s seeking SWM . . . . " VILLAGE VOICE, Nov. 2, 1993, at 152. In addition to race, advertisers often articulate desired sexual orientation, national origin, or religion. Although such advertisements raise many interesting questions (as does the very existence of personal ads), the scope of this Note is limited to the significance of the expression of racial preferences in personal ads.
7. Personal advertisements of this sort, short columns in which advertisers communicate their desires for lovers and mates, can be found in the classified sections of myriad newspapers and magazines. It is common for advertisers in these ads to specify their own race and the race of desired respondents. See infra note 7. Typical ads read: "SWF 33, Professional Musician seeks SWM . . . ." BOSTON MAG., Nov. 1993, at 143; "Harvard JD/MBA, banker, single white male, 30, seeks white or Asian female . . . ." NEW YORK MAG., Nov. 8, 1993, at 132; "Attractive, voluptuous SBF, 30s seeking SWM . . . . " VILLAGE VOICE, Nov. 2, 1993, at 152. In addition to race, advertisers often articulate desired sexual orientation, national origin, or religion. Although such advertisements raise many interesting questions (as does the very existence of personal ads), the scope of this Note is limited to the significance of the expression of racial preferences in personal ads.
8. Personal advertisements of this sort, short columns in which advertisers communicate their desires for lovers and mates, can be found in the classified sections of myriad newspapers and magazines. It is common for advertisers in these ads to specify their own race and the race of desired respondents. See infra note 7. Typical ads read: "SWF 33, Professional Musician seeks SWM . . . ." BOSTON MAG., Nov. 1993, at 143; "Harvard JD/MBA, banker, single white male, 30, seeks white or Asian female . . . ." NEW YORK MAG., Nov. 8, 1993, at 132; "Attractive, voluptuous SBF, 30s seeking SWM . . . . " VILLAGE VOICE, Nov. 2, 1993, at 152. In addition to race, advertisers often articulate desired sexual orientation, national origin, or religion. Although such advertisements raise many interesting questions (as does the very existence of personal ads), the scope of this Note is limited to the significance of the expression of racial preferences in personal ads.
9. According to a 1987 survey, 27% of whites polled favored legislation to prohibit marriage between blacks and whites. See Oppenheimer, supra note 3, at 907 (citing HOWARD SCHUMAN, CHARLOTTE STEEH & LAWRENCE BOBO, RACIAL ATTITUDES IN AMERICA xii (1988)).
10. According to a 1987 survey, 27% of whites polled favored legislation to prohibit marriage between blacks and whites. See Oppenheimer, supra note 3, at 907 (citing HOWARD SCHUMAN, CHARLOTTE STEEH & LAWRENCE BOBO, RACIAL ATTITUDES IN AMERICA xii (1988)).
11. A casual survey of various newspapers and magazines, conducted between November 28, 1993 and December 12, 1993, reveals that half of all advertisers in the personals explicitly specified the race of desired respondents, using words such as white, black or Asian. Publications surveyed include The Atlanta Journal, Baltimore Magazine, Boston Magazine, The Buffalo News, Chicago Magazine, The Denver Post, The Detroit News and Free Press, The Greensboro News and Record, The Kansas City Star, Los Angeles Magazine, The Milwaukee Journal, The New York Daily News, Pittsburgh Magazine, The Seattle Post, The Tallahassee Democrat, and Washingtonian Magazine. Overall, the majority of these designations were used by advertisers who sought same-race respondents.
12. In American culture, race consciousness can rarely be presumed to lack significance: "[W]hat is so deeply troubling about this nation's race-consciousness is the degree to which it currently embodies race hatred, prejudice, and 'old-fashioned' discrimination." T. Alexander Aleinikoff, The Constitution in Context: The Continuing Significance of Racism, 63 U. COLO. L. REV. 325, 331 (1992).
13. 10 Currently there is no legislation that regulates the use of racial signifiers in personal advertisements. Although individual publications retain the right to refuse to publish ads submitted, there is no uniform policy against the publication of ads using racial signifiers.
14. The injury of stigma was first recognized in Strauder v. West Virginia, 100 U.S. 303 (1880). In invalidating a West Virginia statute that prohibited blacks from serving on juries, Justice Strong reasoned that the Fourteenth Amendment protects blacks "from legal discriminations, implying inferiority in civil society," id. at 308, and concluded that the statutory prohibition was "practically a brand upon them[,] . . . an assertion of their inferiority," id. Similarly, concerns about stigma underlay Brown v. Board of Education, 347 U.S. 483 (1954), in which the Court observed that the segregation of black public school pupils "generates 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," id. at 494.
15. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 351 (1987) (footnote omitted). In addition, racial stigmatization can impair the victim's cross-racial and intra-racial relationships. See Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 137 (1982).
16. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 351 (1987) (footnote omitted). In addition, racial stigmatization can impair the victim's cross-racial and intra-racial relationships. See Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 137 (1982).
17. See William P. Marshall, Discrimination and the Right of Association, 81 Nw. U. L. REV. 68, 94 (1986) ("Discrimination need not occur solely at state behest to further debilitating social stereotypes.").
18. See, e.g., Larry G. Simon, Racially Prejudiced Governmental Actions: A Motivation Theory of the Constitutional Ban Against Racial Discrimination, 15 SAN DIEGO L. REV. 1041, 1052-53 (1978).
19. 163 U.S. 537 (1896).
20. See id. at 551 ("If the two races are to meet on terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals.").
21. Id. 18 Indeed, Justice Harlan admitted as much in his dissent in Plessy: "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not that it will continue to be for all time . . . ." Id. at 559 (Harlan, J., dissenting).
22. Lawrence, supra note 12, at 351. Lawrence argues that his "cultural meaning" test should replace the current discriminatory-intent standard as the method for determining the constitutionality of facially neutral laws. Id. at 324. In contrast, this Note applies the cultural meaning test to discern stigmatizing messages in conduct that is explicitly race-based.
23. Id.
24. The roots of state anti-miscegenation laws can be traced to laws enacted by the American colonies before the Revolutionary War. See DAVID H. FOWLER, NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE 7-8 (1987). In all, six out of the 13 British colonies restricted intermarriage. See id. at 8. Ultimately, 41 states had anti-miscegenation laws at some point in their history, see id. at 7, and six Southern states enshrined these laws in their constitutions, see id. at xii. As late as 1967, when the Supreme Court held Virginia's anti-miscegenation law unconstitutional, see Loving v. Virginia, 388 U.S. 1, 2 (1967), 16 states prohibited intermarriage. See FOWLER, supra, at xi.
25. The roots of state anti-miscegenation laws can be traced to laws enacted by the American colonies before the Revolutionary War. See DAVID H. FOWLER, NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE 7-8 (1987). In all, six out of the 13 British colonies restricted intermarriage. See id. at 8. Ultimately, 41 states had anti-miscegenation laws at some point in their history, see id. at 7, and six Southern states enshrined these laws in their constitutions, see id. at xii. As late as 1967, when the Supreme Court held Virginia's anti-miscegenation law unconstitutional, see Loving v. Virginia, 388 U.S. 1, 2 (1967), 16 states prohibited intermarriage. See FOWLER, supra, at xi.
26. The roots of state anti-miscegenation laws can be traced to laws enacted by the American colonies before the Revolutionary War. See DAVID H. FOWLER, NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE 7-8 (1987). In all, six out of the 13 British colonies restricted intermarriage. See id. at 8. Ultimately, 41 states had anti-miscegenation laws at some point in their history, see id. at 7, and six Southern states enshrined these laws in their constitutions, see id. at xii. As late as 1967, when the Supreme Court held Virginia's anti-miscegenation law unconstitutional, see Loving v. Virginia, 388 U.S. 1, 2 (1967), 16 states prohibited intermarriage. See FOWLER, supra, at xi.
27. The roots of state anti-miscegenation laws can be traced to laws enacted by the American colonies before the Revolutionary War. See DAVID H. FOWLER, NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE 7-8 (1987). In all, six out of the 13 British colonies restricted intermarriage. See id. at 8. Ultimately, 41 states had anti-miscegenation laws at some point in their history, see id. at 7, and six Southern states enshrined these laws in their constitutions, see id. at xii. As late as 1967, when the Supreme Court held Virginia's anti-miscegenation law unconstitutional, see Loving v. Virginia, 388 U.S. 1, 2 (1967), 16 states prohibited intermarriage. See FOWLER, supra, at xi.
28. For a comprehensive discussion of the connection between anti-miscegenation laws and systems of racial subordination, see WINTHROP D. JORDAN, WHITE OVER BLACK 136-54 (1977). Jordan argues that "[s]exually as well as in every other way, Negroes were utterly subordinated. White men extended their dominion over their Negroes to the bed . . . ." Id. at 141; see also ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW 15 ("Of all the attributes of an inferior group, the most feared is its power to pollute. . . . [T]he ultimate pollution and ultimate challenge to the dominance of the superior racial caste is intermarriage.").
29. For a comprehensive discussion of the connection between anti-miscegenation laws and systems of racial subordination, see WINTHROP D. JORDAN, WHITE OVER BLACK 136-54 (1977). Jordan argues that "[s]exually as well as in every other way, Negroes were utterly subordinated. White men extended their dominion over their Negroes to the bed . . . ." Id. at 141; see also ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW 15 ("Of all the attributes of an inferior group, the most feared is its power to pollute. . . . [T]he ultimate pollution and ultimate challenge to the dominance of the superior racial caste is intermarriage.").
30. For a comprehensive discussion of the connection between anti-miscegenation laws and systems of racial subordination, see WINTHROP D. JORDAN, WHITE OVER BLACK 136-54 (1977). Jordan argues that "[s]exually as well as in every other way, Negroes were utterly subordinated. White men extended their dominion over their Negroes to the bed . . . ." Id. at 141; see also ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW 15 ("Of all the attributes of an inferior group, the most feared is its power to pollute. . . . [T]he ultimate pollution and ultimate challenge to the dominance of the superior racial caste is intermarriage.").
31. Undoubtedly, it can be argued that this model applies only to whites who seek other whites, because "[e]xclusion by an oppressed group carries a different non-stigmatic message." Pamela J. Smith, Comment, We Are Not Sisters: African-American Women and the Freedom to Associate and Disassociate, 66 TULANE L. REV. 1467, 1507-09 (1992); see also Deborah L. Rhode, Association and Assimilation, 81 Nw. U. L. REV. 106, 122 (1986) (linking the absence of stigmatic effect when subordinate groups exclude members of empowered groups to "this nation's historic traditions and cultural understandings"). Indeed, it is possible that many who read "black man seeks black woman" find this message an empowering one of cultural solidarity, rather than a stigmatizing reflection of absorbed notions of anti-miscegenation. See DERRICK BELL, RACE, RACISM AND AMERICAN LAW 83-84 (3d ed. 1992).
32. Undoubtedly, it can be argued that this model applies only to whites who seek other whites, because "[e]xclusion by an oppressed group carries a different non-stigmatic message." Pamela J. Smith, Comment, We Are Not Sisters: African-American Women and the Freedom to Associate and Disassociate, 66 TULANE L. REV. 1467, 1507-09 (1992); see also Deborah L. Rhode, Association and Assimilation, 81 Nw. U. L. REV. 106, 122 (1986) (linking the absence of stigmatic effect when subordinate groups exclude members of empowered groups to "this nation's historic traditions and cultural understandings"). Indeed, it is possible that many who read "black man seeks black woman" find this message an empowering one of cultural solidarity, rather than a stigmatizing reflection of absorbed notions of anti-miscegenation. See DERRICK BELL, RACE, RACISM AND AMERICAN LAW 83-84 (3d ed. 1992).
33. Undoubtedly, it can be argued that this model applies only to whites who seek other whites, because "[e]xclusion by an oppressed group carries a different non-stigmatic message." Pamela J. Smith, Comment, We Are Not Sisters: African-American Women and the Freedom to Associate and Disassociate, 66 TULANE L. REV. 1467, 1507-09 (1992); see also Deborah L. Rhode, Association and Assimilation, 81 Nw. U. L. REV. 106, 122 (1986) (linking the absence of stigmatic effect when subordinate groups exclude members of empowered groups to "this nation's historic traditions and cultural understandings"). Indeed, it is possible that many who read "black man seeks black woman" find this message an empowering one of cultural solidarity, rather than a stigmatizing reflection of absorbed notions of anti-miscegenation. See DERRICK BELL, RACE, RACISM AND AMERICAN LAW 83-84 (3d ed. 1992).
34. See KATHV RUSSELL, MIDGE WILSON & RONALD HALL, THE COLOR COMPLEX 41 (1992) (describing America as "a society whose ideal beauty - blond, pale skinned, with blue or green eyes - embodies everything the average Black female lacks"); see also PAUL R. SPICKARD, MIXED BLOOD 258-59, 264-65 (1989) (contrasting the dominant culture's images of white women as "charming, pure and virginal," against views of black women as "animalistic and unattractive"); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 372 n.15 ("[T]he aesthetic order of a society sets the norms of beauty and acceptability of the dominant group as the standard . . . ."). Traditional perceptions of non-white as undesirable are not limited to men's images of women. Black men may also be perceived as unattractive. See, e.g., CALVIN HERNTON, COMING TOGETHER 13 (1971) ("Long before anybody ever heard of King Kong, the black man was made into a monstrosity. Black men were ugly, oversexed mules against whom the virtues of white womanhood had constantly to be protected.").
35. See KATHV RUSSELL, MIDGE WILSON & RONALD HALL, THE COLOR COMPLEX 41 (1992) (describing America as "a society whose ideal beauty - blond, pale skinned, with blue or green eyes - embodies everything the average Black female lacks"); see also PAUL R. SPICKARD, MIXED BLOOD 258-59, 264-65 (1989) (contrasting the dominant culture's images of white women as "charming, pure and virginal," against views of black women as "animalistic and unattractive"); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 372 n.15 ("[T]he aesthetic order of a society sets the norms of beauty and acceptability of the dominant group as the standard . . . ."). Traditional perceptions of non-white as undesirable are not limited to men's images of women. Black men may also be perceived as unattractive. See, e.g., CALVIN HERNTON, COMING TOGETHER 13 (1971) ("Long before anybody ever heard of King Kong, the black man was made into a monstrosity. Black men were ugly, oversexed mules against whom the virtues of white womanhood had constantly to be protected.").
36. See KATHV RUSSELL, MIDGE WILSON & RONALD HALL, THE COLOR COMPLEX 41 (1992) (describing America as "a society whose ideal beauty - blond, pale skinned, with blue or green eyes - embodies everything the average Black female lacks"); see also PAUL R. SPICKARD, MIXED BLOOD 258-59, 264-65 (1989) (contrasting the dominant culture's images of white women as "charming, pure and virginal," against views of black women as "animalistic and unattractive"); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 372 n.15 ("[T]he aesthetic order of a society sets the norms of beauty and acceptability of the dominant group as the standard . . . ."). Traditional perceptions of non-white as undesirable are not limited to men's images of women. Black men may also be perceived as unattractive. See, e.g., CALVIN HERNTON, COMING TOGETHER 13 (1971) ("Long before anybody ever heard of King Kong, the black man was made into a monstrosity. Black men were ugly, oversexed mules against whom the virtues of white womanhood had constantly to be protected.").
37. See KATHV RUSSELL, MIDGE WILSON & RONALD HALL, THE COLOR COMPLEX 41 (1992) (describing America as "a society whose ideal beauty - blond, pale skinned, with blue or green eyes - embodies everything the average Black female lacks"); see also PAUL R. SPICKARD, MIXED BLOOD 258-59, 264-65 (1989) (contrasting the dominant culture's images of white women as "charming, pure and virginal," against views of black women as "animalistic and unattractive"); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 372 n.15 ("[T]he aesthetic order of a society sets the norms of beauty and acceptability of the dominant group as the standard . . . ."). Traditional perceptions of non-white as undesirable are not limited to men's images of women. Black men may also be perceived as unattractive. See, e.g., CALVIN HERNTON, COMING TOGETHER 13 (1971) ("Long before anybody ever heard of King Kong, the black man was made into a monstrosity. Black men were ugly, oversexed mules against whom the virtues of white womanhood had constantly to be protected.").
38. See HERNTON, supra note 24, at 20 ("[T]he black man internalized much of the white world's ideology regarding the black woman, or at least that portion of it which deemed black women ugly and therefore unlovable."). According to this argument, stigma also results when men - black or white -advertise for "light" women, for example, "Harvard MBA corporate gentleman [seeks] light SBF under 30 . . . ." WASHINGTONIAN MAG., Nov. 1993, at 196.
39. See HERNTON, supra note 24, at 20 ("[T]he black man internalized much of the white world's ideology regarding the black woman, or at least that portion of it which deemed black women ugly and therefore unlovable."). According to this argument, stigma also results when men - black or white -advertise for "light" women, for example, "Harvard MBA corporate gentleman [seeks] light SBF under 30 . . . ." WASHINGTONIAN MAG., Nov. 1993, at 196.
40. BOSTON PHOENIX, Nov. 12, 1993, Adult Services at 3.
41. See JORDAN, supra note 22, at 150-51; SPICKARD, supra note 24, at 236-37, 257 (describing the white male fixation "on the Black woman as harlot"). There is thus an inherent tension within white visions of black women: "[o]ne theme described them as attractive, easily exploitable sex objects; the other, as bordering on the repulsive." Id. at 256.
42. See JORDAN, supra note 22, at 150-51; SPICKARD, supra note 24, at 236-37, 257 (describing the white male fixation "on the Black woman as harlot"). There is thus an inherent tension within white visions of black women: "[o]ne theme described them as attractive, easily exploitable sex objects; the other, as bordering on the repulsive." Id. at 256.
43. Personal ads in which white females seek black males may evoke equally stigmatizing notions of black men as "particularly virile, promiscuous, and lusty." JORDAN, supra note 22, at 151.
44. The meaning of "social integration" can best be understood when the term is contrasted with "desegregation." "Desegregation is eliminative and negative, for it simply removes [the] legal and social prohibitions [of segregation]. . . . Integration is the positive acceptance of desegregation and the welcomed participation of Negroes into the total range of human activities. Integration is genuine intergroup, interpersonal doing." Martin L. King, Jr., Church Conference Address, Nashville, Tennessee (Dec. 27, 1962), in A TESTAMENT OF HOPE 118 (James M. Washington ed., 1986).
45. The meaning of "social integration" can best be understood when the term is contrasted with "desegregation." "Desegregation is eliminative and negative, for it simply removes [the] legal and social prohibitions [of segregation]. . . . Integration is the positive acceptance of desegregation and the welcomed participation of Negroes into the total range of human activities. Integration is genuine intergroup, interpersonal doing." Martin L. King, Jr., Church Conference Address, Nashville, Tennessee (Dec. 27, 1962), in A TESTAMENT OF HOPE 118 (James M. Washington ed., 1986).
46. This premise reflects what is in essence a normative judgment; it cannot be proved in the abstract that integration is better than, for example, separatism. However, integration has long represented a social ideal. See id. ("Desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community."). Among its values, "[i]ntegration is indispensable to shattering racial stereotypes." THEODORE CROSS, THE BLACK POWER IMPERATIVE 609-10 (1987); see also TAMOTSU SHIBUTANI & KIAN KWAN, ETHNIC STRATIFICATION 589 (1965) (arguing that increased interethnic interaction will lead "individuals [to] recognize their resemblances"). In addition to promoting cross-racial understanding, integration provides "access to a rich life experience." Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 STAN. L. REV. 1, 58 (1991). Alternatively, one might not view integration as a good in itself, but rather as a means to achieve a different social good: economic and social equality. Douglas Massey and Nancy Denton take this approach to integration in their exhaustive analysis of American housing patterns. The authors argue for national efforts to achieve residential desegregation; without it, they conclude, "black chances for social and economic success are drastically reduced." DOUGLAS MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 2 (1993); see also CROSS, supra, 607-09 (arguing that residential integration insures blacks a physical presence "at or near the place of residence . . . of people who manage and call the shots in the political and economic systems" and is consequently "an indispensable requirement for achieving economic equality"). Not all commentators embrace the value of integration, however. For a powerful critique of the integrationist ideal, see STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 53-56 (1967).
47. This premise reflects what is in essence a normative judgment; it cannot be proved in the abstract that integration is better than, for example, separatism. However, integration has long represented a social ideal. See id. ("Desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community."). Among its values, "[i]ntegration is indispensable to shattering racial stereotypes." THEODORE CROSS, THE BLACK POWER IMPERATIVE 609-10 (1987); see also TAMOTSU SHIBUTANI & KIAN KWAN, ETHNIC STRATIFICATION 589 (1965) (arguing that increased interethnic interaction will lead "individuals [to] recognize their resemblances"). In addition to promoting cross-racial understanding, integration provides "access to a rich life experience." Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 STAN. L. REV. 1, 58 (1991). Alternatively, one might not view integration as a good in itself, but rather as a means to achieve a different social good: economic and social equality. Douglas Massey and Nancy Denton take this approach to integration in their exhaustive analysis of American housing patterns. The authors argue for national efforts to achieve residential desegregation; without it, they conclude, "black chances for social and economic success are drastically reduced." DOUGLAS MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 2 (1993); see also CROSS, supra, 607-09 (arguing that residential integration insures blacks a physical presence "at or near the place of residence . . . of people who manage and call the shots in the political and economic systems" and is consequently "an indispensable requirement for achieving economic equality"). Not all commentators embrace the value of integration, however. For a powerful critique of the integrationist ideal, see STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 53-56 (1967).
48. This premise reflects what is in essence a normative judgment; it cannot be proved in the abstract that integration is better than, for example, separatism. However, integration has long represented a social ideal. See id. ("Desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community."). Among its values, "[i]ntegration is indispensable to shattering racial stereotypes." THEODORE CROSS, THE BLACK POWER IMPERATIVE 609-10 (1987); see also TAMOTSU SHIBUTANI & KIAN KWAN, ETHNIC STRATIFICATION 589 (1965) (arguing that increased interethnic interaction will lead "individuals [to] recognize their resemblances"). In addition to promoting cross-racial understanding, integration provides "access to a rich life experience." Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 STAN. L. REV. 1, 58 (1991). Alternatively, one might not view integration as a good in itself, but rather as a means to achieve a different social good: economic and social equality. Douglas Massey and Nancy Denton take this approach to integration in their exhaustive analysis of American housing patterns. The authors argue for national efforts to achieve residential desegregation; without it, they conclude, "black chances for social and economic success are drastically reduced." DOUGLAS MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 2 (1993); see also CROSS, supra, 607-09 (arguing that residential integration insures blacks a physical presence "at or near the place of residence . . . of people who manage and call the shots in the political and economic systems" and is consequently "an indispensable requirement for achieving economic equality"). Not all commentators embrace the value of integration, however. For a powerful critique of the integrationist ideal, see STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 53-56 (1967).
49. This premise reflects what is in essence a normative judgment; it cannot be proved in the abstract that integration is better than, for example, separatism. However, integration has long represented a social ideal. See id. ("Desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community."). Among its values, "[i]ntegration is indispensable to shattering racial stereotypes." THEODORE CROSS, THE BLACK POWER IMPERATIVE 609-10 (1987); see also TAMOTSU SHIBUTANI & KIAN KWAN, ETHNIC STRATIFICATION 589 (1965) (arguing that increased interethnic interaction will lead "individuals [to] recognize their resemblances"). In addition to promoting cross-racial understanding, integration provides "access to a rich life experience." Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 STAN. L. REV. 1, 58 (1991). Alternatively, one might not view integration as a good in itself, but rather as a means to achieve a different social good: economic and social equality. Douglas Massey and Nancy Denton take this approach to integration in their exhaustive analysis of American housing patterns. The authors argue for national efforts to achieve residential desegregation; without it, they conclude, "black chances for social and economic success are drastically reduced." DOUGLAS MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 2 (1993); see also CROSS, supra, 607-09 (arguing that residential integration insures blacks a physical presence "at or near the place of residence . . . of people who manage and call the shots in the political and economic systems" and is consequently "an indispensable requirement for achieving economic equality"). Not all commentators embrace the value of integration, however. For a powerful critique of the integrationist ideal, see STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 53-56 (1967).
50. This premise reflects what is in essence a normative judgment; it cannot be proved in the abstract that integration is better than, for example, separatism. However, integration has long represented a social ideal. See id. ("Desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community."). Among its values, "[i]ntegration is indispensable to shattering racial stereotypes." THEODORE CROSS, THE BLACK POWER IMPERATIVE 609-10 (1987); see also TAMOTSU SHIBUTANI & KIAN KWAN, ETHNIC STRATIFICATION 589 (1965) (arguing that increased interethnic interaction will lead "individuals [to] recognize their resemblances"). In addition to promoting cross-racial understanding, integration provides "access to a rich life experience." Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 STAN. L. REV. 1, 58 (1991). Alternatively, one might not view integration as a good in itself, but rather as a means to achieve a different social good: economic and social equality. Douglas Massey and Nancy Denton take this approach to integration in their exhaustive analysis of American housing patterns. The authors argue for national efforts to achieve residential desegregation; without it, they conclude, "black chances for social and economic success are drastically reduced." DOUGLAS MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 2 (1993); see also CROSS, supra, 607-09 (arguing that residential integration insures blacks a physical presence "at or near the place of residence . . . of people who manage and call the shots in the political and economic systems" and is consequently "an indispensable requirement for achieving economic equality"). Not all commentators embrace the value of integration, however. For a powerful critique of the integrationist ideal, see STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 53-56 (1967).
51. This premise reflects what is in essence a normative judgment; it cannot be proved in the abstract that integration is better than, for example, separatism. However, integration has long represented a social ideal. See id. ("Desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community."). Among its values, "[i]ntegration is indispensable to shattering racial stereotypes." THEODORE CROSS, THE BLACK POWER IMPERATIVE 609-10 (1987); see also TAMOTSU SHIBUTANI & KIAN KWAN, ETHNIC STRATIFICATION 589 (1965) (arguing that increased interethnic interaction will lead "individuals [to] recognize their resemblances"). In addition to promoting cross-racial understanding, integration provides "access to a rich life experience." Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 STAN. L. REV. 1, 58 (1991). Alternatively, one might not view integration as a good in itself, but rather as a means to achieve a different social good: economic and social equality. Douglas Massey and Nancy Denton take this approach to integration in their exhaustive analysis of American housing patterns. The authors argue for national efforts to achieve residential desegregation; without it, they conclude, "black chances for social and economic success are drastically reduced." DOUGLAS MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 2 (1993); see also CROSS, supra, 607-09 (arguing that residential integration insures blacks a physical presence "at or near the place of residence . . . of people who manage and call the shots in the political and economic systems" and is consequently "an indispensable requirement for achieving economic equality"). Not all commentators embrace the value of integration, however. For a powerful critique of the integrationist ideal, see STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 53-56 (1967).
52. An informal survey demonstrates that same-race advertising accounts for the majority of all ads that use racial signifiers. See supra note 7.
53. This argument is premised on the belief that advertising does not merely reflect, but also shapes reality by providing a vision of the way society ought to be. See, e.g., ALICE E. COURTNEY & THOMAS W. WHIPPLE, SEX STEREOTYPING IN ADVERTISING 58 (1983) ("[I]t is indisputable that advertising is at least one contributing influence affecting the way children and adults view their roles in society. . . . There is also mounting evidence . . . that more responsible advertising could play a positive and beneficial role [in ameliorating social ills]."); Jane E. Smith, V. Ann Waldorf & David L. Trembath, "Single White Male Looking for Thin, Very Attractive . . .," 23 SEX ROLES 675, 675, 680-83 (1990) (exploring the relationship between personal ads and "[s]ociocultural pressures on women to be thin"); see also Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 658 (6th Cir. 1991) ("[T]he exclusive use of white models [in housing advertisements] sends the subtle but distinct message of racial exclusion. 'Blacks need not apply.' 'Blacks are not welcome.'") (Keith, J., dissenting).
54. This argument is premised on the belief that advertising does not merely reflect, but also shapes reality by providing a vision of the way society ought to be. See, e.g., ALICE E. COURTNEY & THOMAS W. WHIPPLE, SEX STEREOTYPING IN ADVERTISING 58 (1983) ("[I]t is indisputable that advertising is at least one contributing influence affecting the way children and adults view their roles in society. . . . There is also mounting evidence . . . that more responsible advertising could play a positive and beneficial role [in ameliorating social ills]."); Jane E. Smith, V. Ann Waldorf & David L. Trembath, "Single White Male Looking for Thin, Very Attractive . . .," 23 SEX ROLES 675, 675, 680-83 (1990) (exploring the relationship between personal ads and "[s]ociocultural pressures on women to be thin"); see also Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 658 (6th Cir. 1991) ("[T]he exclusive use of white models [in housing advertisements] sends the subtle but distinct message of racial exclusion. 'Blacks need not apply.' 'Blacks are not welcome.'") (Keith, J., dissenting).
55. Indeed, theorist Fernando Henriques has argued that "if the world is to solve the problem of inter-racial conflict the only sure foundation is inter-racial marriage." FERNANDO HENRIQUES, CHILDREN OF CONFLICT xiii (1975). Cultural pluralists would dispute this conclusion and would argue that ethnic and racial identity can be elevated to great significance even within an integrated society. See HORACE KALLEN, CULTURE AND DEMOCRACY IN THE UNITED STATES 124 (1924); WHITNEY M. YOUNG, JR., BEYOND RACISM 151-52 (1969).
56. Indeed, theorist Fernando Henriques has argued that "if the world is to solve the problem of inter-racial conflict the only sure foundation is inter-racial marriage." FERNANDO HENRIQUES, CHILDREN OF CONFLICT xiii (1975). Cultural pluralists would dispute this conclusion and would argue that ethnic and racial identity can be elevated to great significance even within an integrated society. See HORACE KALLEN, CULTURE AND DEMOCRACY IN THE UNITED STATES 124 (1924); WHITNEY M. YOUNG, JR., BEYOND RACISM 151-52 (1969).
57. Indeed, theorist Fernando Henriques has argued that "if the world is to solve the problem of inter-racial conflict the only sure foundation is inter-racial marriage." FERNANDO HENRIQUES, CHILDREN OF CONFLICT xiii (1975). Cultural pluralists would dispute this conclusion and would argue that ethnic and racial identity can be elevated to great significance even within an integrated society. See HORACE KALLEN, CULTURE AND DEMOCRACY IN THE UNITED STATES 124 (1924); WHITNEY M. YOUNG, JR., BEYOND RACISM 151-52 (1969).
58. Separatist beliefs often reappear in the context of housing. Studies demonstrate that residential segregation is not the result of socioeconomic differences between blacks and whites, as is frequently argued, but instead stems largely from white desire not to live with blacks. See MASSEY & DENTON, supra note 30, at 11. The removal of racial signifiers from personal ads obviously will not eradicate segregated housing; however, it may have some influence on levels of societal segregation because it eliminates one message that promotes racial separation. Indeed, if residential segregation is the result of social attitudes rather than economics, then efforts to eliminate racial stereotypes in public discourse may be the most effective step toward residential integration.
59. White Americans average twice the income of blacks and are more likely than blacks to live in a family with an annual income in excess of $50,000. See Robert L. Hayman, Jr. & Nancy Levit, The Constitutional Ghetto, 1993 Wis. L. REV. 627, 678. In addition, the median incomes of black families have consistently declined in relation to that of white families - 61% in 1970, 58% in 1974, and 56% in 1981. See Pettigrew, supra note 3, at 680.
60. White Americans average twice the income of blacks and are more likely than blacks to live in a family with an annual income in excess of $50,000. See Robert L. Hayman, Jr. & Nancy Levit, The Constitutional Ghetto, 1993 Wis. L. REV. 627, 678. In addition, the median incomes of black families have consistently declined in relation to that of white families - 61% in 1970, 58% in 1974, and 56% in 1981. See Pettigrew, supra note 3, at 680.
61. See CROSS, supra note 30, at 462 ("If Americans were ever able to overcome the superstitions of race, widespread intermarriage between the races would undoubtedly produce the final and complete economic solution to black-white economic differences.").
62. The Supreme Court has recognized these benefits in the context of private clubs. See Roberts v. United States Jaycees, 468 U.S. 609, 626, 628-29 (1984) (concluding that the "'leadership skills'" and "'business contacts'" obtained by members of the Jaycees constitute privileges, and that the assurance of equal access to such privileges is a compelling state interest). Certainly such benefits inhere in intimate relations. See CROSS, supra note 30, at 607-08 ("Only when full racial integration occurs . . . will success factors such as luck, connections, friendships, loyalties, nepotism, and access to information help blacks and whites on an equal basis.").
63. CROSS, supra note 30, at 607-08.
64. See Larry Alexander, What Makes Wrongful Discrimination Wrong: Biases, Preferences, Stereotypes and Proxies, 141 U. PA. L. REV. 149, 159 (1992). Alexander argues that [w]hen a person is judged incorrectly to be of lesser moral worth and is treated accordingly, that treatment is morally wrong regardless of the gravity of its effects. It represents a failure to show the moral respect due the recipient, a failure which is by itself sufficient to be judged immoral. Id.
65. See Larry Alexander, What Makes Wrongful Discrimination Wrong: Biases, Preferences, Stereotypes and Proxies, 141 U. PA. L. REV. 149, 159 (1992). Alexander argues that [w]hen a person is judged incorrectly to be of lesser moral worth and is treated accordingly, that treatment is morally wrong regardless of the gravity of its effects. It represents a failure to show the moral respect due the recipient, a failure which is by itself sufficient to be judged immoral. Id.
66. See, e.g., Boiling v. Sharpe, 347 U.S. 497, 499 (1954).
67. Minnick v. California Dep't of Corrections, 452 U.S. 105, 128 (1981) (Stewart, J., dissenting).
68. In certain circumstances, most notably housing and employment, an individual's right to indulge his discriminatory tastes, although permitted by the Constitution, is nonetheless statutorily prohibited. See, e.g., 42 U.S.C. §§ 2000e-2(a)-(d), 3604 (1988).
69. Alexander, supra note 39, at 163; see also JOSEPH RAZ, THE MORALITY OF FREEDOM 410-12 (1986) (arguing that, although individuals require a choice of options in order to realize their autonomy, "[p]roviding, preserving or protecting bad options does not enable one to enjoy valuable autonomy").
70. Alexander, supra note 39, at 163; see also JOSEPH RAZ, THE MORALITY OF FREEDOM 410-12 (1986) (arguing that, although individuals require a choice of options in order to realize their autonomy, "[p]roviding, preserving or protecting bad options does not enable one to enjoy valuable autonomy").
71. See Alexander, supra note 39, at 201. Indeed, the federal anti-discrimination laws recognize a protected "moral space," and limit their prohibitions to contexts in which the moral space of discriminators is least likely to be implicated. Discrimination by employers with few employees is permitted, see 42 U.S.C. § 2000e(b) (1988), as is discrimination by small landlords, see id. § 3603(b)(1)-(2). However, although it is permissible under federal law for small landlords to discriminate, discriminatory advertising by these individuals is nonetheless prohibited. See id. §§ 3603(b), 3604(c).
72. Minorities may find this freedom to order their personal interactions less desirable than may members of the majority race. See Richard Delgado, Critical Legal Studies and the Realities of Race - Does the Fundamental Contradiction Have a Corollary?, 23 HARV. C.R.-C.L. L. REV. 407, 412 (1988). Delgado argues that minorities "will want the safety that comes from structure, rights and rules. [Whites] will want free-flowing, uninhibited interpersonal relationships with all the barriers down." Id. at 412.
73. Minorities may find this freedom to order their personal interactions less desirable than may members of the majority race. See Richard Delgado, Critical Legal Studies and the Realities of Race - Does the Fundamental Contradiction Have a Corollary?, 23 HARV. C.R.-C.L. L. REV. 407, 412 (1988). Delgado argues that minorities "will want the safety that comes from structure, rights and rules. [Whites] will want free-flowing, uninhibited interpersonal relationships with all the barriers down." Id. at 412.
74. See Alexander, supra note 39, at 163. Alexander suggests that prohibiting an individual from choosing his or her spouse on the basis of racial bias could violate that individual's moral rights.
75. See Morton J. Horwitz, Rights, 23 HARV. C.R.-C.L. L. REV. 393, 404 (1988) ("A right is just a social interest to which we think it desirable to accord a privileged position in the law.").
76. Id., at 403
77. . Instead, Horwitz argues, "[t]he most promising way to ensure that rights may be used on behalf of the socially weak . . . is to ground rights theory in a substantive conception of the good society." Id. at 404.
78. Stephen L. Carter, When Victims Happen to be Black, 97 YALE L.J. 420, 436 (1988).
79. See, e.g., NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 53 (1963) ("[T]he Negro is only an American, and nothing else."). But see James Turner, Black Nationalism: The Inevitable Response, BLACK WORLD, Jan. 1971, at 4, 7-8 ("This common history which the Black people of America share is manifested in a concrete national culture with a peculiar 'spiritual complexion,' or psychological temperament." (quoting C. Munford, Black National Revolution in America, Address at Utah State University (May 1970))).
80. See, e.g., NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 53 (1963) ("[T]he Negro is only an American, and nothing else."). But see James Turner, Black Nationalism: The Inevitable Response, BLACK WORLD, Jan. 1971, at 4, 7-8 ("This common history which the Black people of America share is manifested in a concrete national culture with a peculiar 'spiritual complexion,' or psychological temperament." (quoting C. Munford, Black National Revolution in America, Address at Utah State University (May 1970))).
81. See, e.g., NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 53 (1963) ("[T]he Negro is only an American, and nothing else."). But see James Turner, Black Nationalism: The Inevitable Response, BLACK WORLD, Jan. 1971, at 4, 7-8 ("This common history which the Black people of America share is manifested in a concrete national culture with a peculiar 'spiritual complexion,' or psychological temperament." (quoting C. Munford, Black National Revolution in America, Address at Utah State University (May 1970))).
82. Theorists argue that proxies based on inaccurate generalizations will impose a cost on their user, who will thus choose to eliminate them. See David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 GEO. L.J. 1619, 1640 (1991). Invidious biases, however, may underlie irrational proxies; consequently, the irrationality of the proxy will not necessarily lead to its abandonment. See Alexander, supra note 39, at 170; see also Carter, supra note 49, at 431 ("[V]irtually anyone who makes a judgment about another person that rests on race will believe the judgment to be a rational one.").
83. Theorists argue that proxies based on inaccurate generalizations will impose a cost on their user, who will thus choose to eliminate them. See David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 GEO. L.J. 1619, 1640 (1991). Invidious biases, however, may underlie irrational proxies; consequently, the irrationality of the proxy will not necessarily lead to its abandonment. See Alexander, supra note 39, at 170; see also Carter, supra note 49, at 431 ("[V]irtually anyone who makes a judgment about another person that rests on race will believe the judgment to be a rational one.").
84. Theorists argue that proxies based on inaccurate generalizations will impose a cost on their user, who will thus choose to eliminate them. See David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 GEO. L.J. 1619, 1640 (1991). Invidious biases, however, may underlie irrational proxies; consequently, the irrationality of the proxy will not necessarily lead to its abandonment. See Alexander, supra note 39, at 170; see also Carter, supra note 49, at 431 ("[V]irtually anyone who makes a judgment about another person that rests on race will believe the judgment to be a rational one.").
85. Barbara D. Underwood, Law and the Crystal Ball: Predicting Behavior with Statistical Inference and Individualized Judgment, 88 YALE L.J. 1408, 1414 (1979).
86. "Proxy discrimination based on accurate predictions of the choices of the dispreferred tends to perpetuate the social realities that make the predictions accurate." Alexander, supra note 39, at 170.
87. See Strauss, supra note 51, at 1622-23.
88. See SICKELS, supra note 22, at 29-30 ("[N]early all interracial couples report that it is hard to endure the inescapable staring of the hostile and the merely curious."); Oppenheimer, supra note 3, at 907.
89. See SICKELS, supra note 22, at 29-30 ("[N]early all interracial couples report that it is hard to endure the inescapable staring of the hostile and the merely curious."); Oppenheimer, supra note 3, at 907.
90. Orleans Parish Sch. Bd. v. Bush, 242 F.2d 156, 166 (5th Cir. 1957). Traditionally, American courts have not allowed state actors to justify discriminatory treatment of individuals by relying on social attitudes. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 433-34 (1984) (concluding that social stigmatization was an insufficient ground to remove a child from the custody of her white mother who had married a black man); Cooper v. Aaron, 358 U.S. 1, 16 (1958) ("[L]aw and order are not here to be preserved by depriving the Negro children of their constitutional rights."); Buchanan v. Warley, 245 U.S. 60, 81 (1917) (rejecting the argument that a law that forbade blacks to occupy homes on predominantly white blocks would "promote the public peace by preventing race conflicts"). The Court has not, however, denied the validity of this justification as it relates to private actors.
91. See Alexander, supra note 39, at 176 ("[F]ailure to count the reactions . . . will frequently impose costs on parties other than the immoral reactors.").
92. See Alan Wertheimer, Jobs, Qualifications, and Preferences, 94 ETHICS 99, 107-08 (1983) (suggesting that the justness of considering others' reactions may follow from the morality of the reaction itself).
93. See Alexander, supra note 39, at 166 ("Although aversions and attractions based on physical attractiveness are common, they usually neither derive from nor reinforce biases, ideals, or stereotypes.").
94. Id. at 165.
95. See supra p. 882.
96. See Caldwell, supra note 24, at 392 ("The aesthetic standards of the white society . . . establish a boundary between black and white, good and bad, pure and evil, true and false, justifying not only the aesthetic or ideal of racial superiority, but also the social, economic, and political structures of domination that result from this ideal.").
97. Id. at 393.
98. However, the aesthetic preferences of white males for minority females are equally suspect, as they may stem from racist beliefs about minority sexuality. See sources cited supra note 27.
99. These protections create, in some sense, a "right" to discriminate. See Marshall, supra note 13, at 74-91.
100. See Roberts v. United States Jaycees, 468 U.S. 609, 618 (1983) ("The Court has long recognized that . . . it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.").
101. Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 629 (1980); see also Roberts, 468 U.S. at 619-20 ("The personal affiliations . . . that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family - marriage, childbirth, the raising and education of children, and cohabitation with one's relatives.") (citations omitted).
102. 468 U.S. 609 (1983).
103. Id. at 619.
104. Karst, supra note 67, at 637; see also Note, State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations, 104 HARV. L. REV. 1835, 1839 (1991) ("A right to exclude others on any basis whatsoever - a right to discriminate - is essential if a sphere of robust private association is to be preserved and the values of associational freedom realized.").
105. Karst, supra note 67, at 637; see also Note, State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations, 104 HARV. L. REV. 1835, 1839 (1991) ("A right to exclude others on any basis whatsoever - a right to discriminate - is essential if a sphere of robust private association is to be preserved and the values of associational freedom realized.").
106. See Note, supra note 70, at 1838-42. Although one can argue that private clubs are entitled to less leeway in their right to discriminate because they do not embody all the elements of a truly "intimate" association, there are extremely intimate associations which the government has been permitted to regulate. Foremost among these examples is the state's power to criminalize consensual sodomy, articulated by the Supreme Court in Bowers v. Hardwick, 478 U.S. 186, 189-90 (1986); see also Belle Terre v. Boraas, 416 U.S. 1, 8-10 (1974) (upholding local zoning ordinance restricting land use to "one-family" dwellings, characterized as blood, marital, or adoptive relationships and thus allowing local government to define the recognized composition of domestic associations).
107. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (holding that
108. See, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 233 (1977) ("Our decisions establish with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments.").
109. 367 U.S. 820 (1961).
110. Id. at 822 (Douglas, J., dissenting).
111. See Karst, supra note 67, at 654.
112. Marshall, supra note 13, at 78.
113. For a summary of circumstances under which the government can restrict individual speech, see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 12.9-12.10, at 841-56 (2d ed. 1988).
114. See, e.g., Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 452-55 ("[R]acial insults are undeserving of first amendment protection because the perpetrator's intention is not to discover truth or initiate dialogue, but to injure the victim.").
115. 80 Although personals are communicated through the medium of advertising, they are unlikely to be treated as less protected commercial speech because they do not "'propose a commercial transaction.'" Virginia State Bd. of Pharmacy v. Virginia Consumer Council, Inc., 425 U.S. 748, 771 n.24 (1976) (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 386 (1973)). It is difficult to discern what is and is not commercial speech: despite the Court's assertion in Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), that the distinction between commercial and non-commercial speech is a matter of "commonsense," id. at 455-56, the Court has "struggled with defining [their] differences." TRIBE, supra note 78, § 12.15, at 894. If personal ads were treated as commercial speech, a court would first consider the legality of the conduct that underlies the advertising. See Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 346 (1986) ("[I]t is precisely because the government could have enacted a wholesale prohibition of [gambling] that it is permissible for the government to take the less intrusive step of allowing the conduct, but [restricting] the advertising."); see also Pittsburgh Press, 413 U.S. at 388-89 (stating that "[a]ny First Amendment interest which might be served by advertising an ordinary commercial proposal . . . is altogether absent when the commercial activity itself is illegal"). In the case of personal advertisements, however, the state cannot prohibit the underlying conduct - the right freely to choose the race of one's lover or spouse. See Loving v. Virginia, 388 U.S. 1, 12 (1966). Consequently, restrictions on the use of racial signifiers would immediately fail this first analysis. In general, the state cannot prohibit the dissemination through advertising of truthful information about a lawful activity unless the state interest advanced by the restriction is "substantial," and the regulation is no more extensive than is required to serve that interest. See Central Hudson Gas & Elec. Corp. v. New York Pub. Serv. Comm'n, 447 U.S. 557, 564 (1980). Because the harms associated with the use of racial signifiers in personal ads are often indirect and attenuated, the current Court would be unlikely to find that the state interest in prohibiting signifiers - the avoidance of stigma - is substantial enough to warrant regulation.
116. Bowers v. Hardwick is an example of these dangers. See Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986) (holding that homosexuals have no fundamental right to engage in acts of consensual sodomy).