Regulating white desire

Wisconsin Law Review

Volumn 2007, Issue 2, 2007, Pages 463-488

  Oh, Reginald ^a  

^a CLEVELAND STATE UNIVERSITY   (United States)

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EID: 38049120403     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (177)

1. See 388 U.S. 1 (1967).
2. See id. at 7-8.
3. Id. at 8.
4. Id. at 7 (quoting Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955)).
5. See id. at 2.
6. See id. at 2-3, 6.
7. Id. at 4 (quoting VA. CODE ANN. § 20-59 (1960)).
8. VA. CODE ANN. § 20-57.
9. See id. § 20-54.
10. See id. § 20-58.
11. See Loving, 388 U.S. at 3.
12. 347 U.S. 483 (1954) (holding that racial segregation in public schools violated equal protection).
13. See Green v. County Sch. Bd., 391 U.S. 430, 437-38 (1968) (holding that segregated school districts had an affirmative duty to dismantle racial segregation "root and branch").
14. See 87 S.E.2d 749 (Va. 1955); see also Gregory Michael Dorr, Principled Expediency: Eugenics, Naim v. Naim, and the Supreme Court, 42 AM. J. LEGAL HIST. 119 (1998) (examining the historical context of the decision).
15. See Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1, 61 (1979) (citing STEPHEN L. WASBY ET AL., DESEGREGATION FROM BROWN TO ALEXANDER (1977)).
16. See Naim v. Naim, 350 U.S. 985 (1956); see also Dorr, supra note 14, at 120.
17. See Dorr, supra note 14, at 159 ("The radical restructuring of American political and social mores occurring throughout the 1960s created the ideological room-for-maneuver necessary for a successful constitutional challenge to the Racial Integrity Act.").
18. Loving v. Virginia, 388 U.S. 1, 12 (1967).
19. See id. at 11.
20. Id. (quoting Korematsu v. United States, 323 U.S. 214, 216 (1944)). In explaining why such racial classifications are suspect, the Court quoted from its opinion in Hirabayashi v. United States, 320 U.S. 81 (1943). See Loving, 388 U.S. at 11. In that case, the Court declared that racial classifications are "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi, 320 U.S. at 100. The Court, however, failed to explain why or how certain racial classifications are "odious to a free people." Moreover, it is important to note that, in Loving, the Court never stated that all laws that rely on racial classifications are suspect. Rather, it qualified its statement by noting that particular racial classifications in particular contexts are suspect. See Loving, 388 U.S. at 11. The qualified nature of the Court's suspect-classification analysis is important because it is clear that the Court did not mean that all racial classifications, whether invidious or benign, are necessarily suspect. Thus, the actual reasoning in Loving does not speak to, for example, whether race-conscious affirmative-action programs should be subject to same level of scrutiny used to analyze Jim Crow laws.
21. Loving, 388 U.S. at 11.
22. Id. at 7 (quoting Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955)).
23. Id.
24. Id. at 12.
25. See id.
26. Id. (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
27. Id.
28. Id.
29. Id. at 10.
30. Id.; see also Pace v. Alabama, 106 U.S. 583 (1883) (holding that a fornication statute imposing greater penalties on an interracial couple than on a same-race couple did not violate equal protection because it punished blacks and whites equally).
31. Loving, 388 U.S. at 8.
32. See id. at 11.
33. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (arguing that strict judicial scrutiny is appropriate when a law discriminates against a discrete and insular minority).
34. 323 U.S. 214 (1944) (upholding the constitutionality of Japanese imprisonment during World War II).
35. See id. at 216.
36. See Loving, 388 U.S. at 11.
37. See id. at 50 (arguing that "racial segregation is necessary to preserve [white] racial integrity").
38. Rice v. Gong Lum, 104 So. 105, 108 (Miss. 1925); Loving v. Virginia, 388 U.S. 1, 11-12 (asserting that Virginia's miscegenation statute was designed to protect white supremacy because it required whites to marry only other whites but freely permitted members of different minority races to intermarry one another). Although proponents of Jim Crow sometimes talked about the desire to protect the integrity of all races through miscegenation and segregation laws, they ultimately were concerned about protecting the purity of the white race. See Gong Lum, 104 So. 110 ("Race amalgamation has been frowned on by Southern civilization always, and our people have always been of the opinion that it was better for all races to preserve their purity. However, the segregation laws have been so shaped as to show by their terms that it was the white race that was intended to be separated from the other races."); Lisa Lindquist Dorr, Gender, Eugenics, and Virginia's Racial Integrity Acts of the 1920s, 11 J. WOMEN'S HIST. 143, 144 (1999) (noting that Virginia's 1924 miscegenation law purported to protect integrity of all races but the statute only defined whites and did not prohibit interracial marriages between different racial minority groups).
39. Gong Lum, 104 So. at 108.
40. Id.
41. Id.
42. Id. at 110.
43. THEODORE BILBO, TAKE YOUR CHOICE: SEPARATION OR MONGRELIZATION 56-57 (1946) (arguing that whites are superior to blacks and that "the mingling of the superior with the inferior will result in lowering of the higher"); see also Lindquist Dorr, supra note 38, at 145-46 (contending that many southerners at the turn of the twentieth century accepted eugenicist belief that interracial breeding "would result in future generations" of whites "dominated by 'inferior' racial characteristics."); Dorr, supra note 14, at 124 ("American eugenicists generally, and Virginians particularly, argued for the scientific defense of civilization through racial purity, using their theories about race mixing.").
44. BILBO, supra note 43, at 56 (arguing that efforts to dismantle segregation in the south would "plunge Dixie into hopeless depths of mongrelism.").
45. 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
46. See Lindquist Dorr, supra note 38, at 145-46; Dorr, supra note 14, at 124.
47. See BILBO, supra note 43, at 56-57.
48. See, e.g., id. at 54 ("To preserve her blood, the white South must absolutely deny social equality to the Negro . . . ."); see also Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1120 (1997) ("[A]fter the Civil War, white Americans of widely varying political views reiterated their conviction that emancipating African-Americans entailed granting the freedmen some form of legal equality, but assuredly did not require granting them 'social equality.'");
49. see also Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 CARDOZO L. REV. 1689, 1696 (2005) (arguing that the framers of the Fourteenth Amendment believed that blacks were not "full social equals with whites").
50. BILBO, supra note 43, at 54.
51. See id.
52. Id. at 52.
53. See id.
54. See id. ("Let anyone who doubts the wisdom of racial segregation or fails to understand the South's loyalty to the color line make a study of conditions in South America.").
55. Id. at 55.
56. For discussions about how nineteenth-century Americans conceptualized equality, see Siegel, supra note 48, at 1119-28; Balkin, supra note 48, at 1693-1701.
57. See Siegel, supra note 48, at 1119-20.
58. Id. at 1120; see also Balkin, supra note 48, at 1694 ("[C]ivil equality meant equal rights to make contracts, own, lease, and convey property, sue and be sued, and, according to some formulas, the rights of freedom of speech and free exercise of religion.").
59. See Balkin, supra note 48, at 1696 ("[T]he basic assumption of most of the framers and ratifiers of the Fourteenth Amendment was that . . . [e]quality before the law simply meant civil equality, nothing more."); Siegel, supra note 48, at 1120. There had been some dispute about whether "the Thirteenth Amendment's prohibition of slavery vested Congress with the power to define and protect civil rights," so Congress ratified the Fourteenth Amendment to ensure that Congress had the constitutional authority to protect the civil rights of African Americans. See id. at 1121.
60. See Balkin, supra note 48, at 1694.
61. See Siegel, supra note 48, at 1121.
62. Id.
63. Balkin, supra note 48, at 1694.
64. See id. at 1695 (defining social equality as "the product of natural affinities and private social interactions").
65. See Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. REV. 1003, 1050 (1995) (arguing that during Jim Crow, whites associated with blacks when doing so preserved the "status hierarchy they desired").
66. See Steven A. Bank, Anti-miscegenation Laws and the Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of 1875, 2 U. CHI. L. SCH. ROUNDTABLE 303, 313 (1995) (noting that white people viewed social equality as "private mixing" or the "right to come into my parlor and be my guest").
67. See BILBO, supra note 43, at 58 ("The South will not grant to the Negro race social equality with the whites.").
68. Id. at 90.
69. See id.
70. See Balkin, supra note 48, at 1694-95 (arguing that whites feared thatI interracial marriages would alter hierarchical status relationships between whites and blacks).
71. ROBERT K. MERTON, Intermarriage and the Social Structure: Fact and Theory, in INTERRACIALISM: BLACK- WHITE INTERMARRIAGE IN AMERICAN HISTORY, LITERATURE, AND LAW 473, 475 (Wernor Sollors ed., 2000).
72. See id. at 481.
73. See id. at 482 ("Class endogamy is loosely preferential, not prescriptive.").
74. Id. at 483.
75. Id.
76. See Kingsley Davis, Intermarriage in Caste Societies, 43 AM. ANTHROPOLOGIST 376, 394 (1941).
77. See Davis, supra note 75, at 394.
78. See id.
79. See Merton, supra note 70, at 482.
80. See Davis, supra note 75, at 377.
81. See id. at 389.
82. See id. ("To permit intermarriage would be to give the hybrid offspring the legal status of its father, and would soon undermine the very basis of the caste order.").
83. Id.
84. See Merton, supra note 70, at 483.
85. See id.
86. See id.
87. See Davis, supra note 75, at 378.
88. See Merton, supra note 70, at 483.
89. See BILBO, supra note 43, at 198 (arguing that blacks and whites should not "amalgamate" or intermarry because blacks are physically, mentally, and morally inferior to whites).
90. See Cheryl Harris, Whiteness as Property, 106 HARV. L. REV. 1709, 1726 (1993).
91. See id. at 1713.
92. See id. at 1766.
93. See BILBO, supra note 43, at 55.
94. See Davis, supra note 75, at 394 ("[I]n those societies where racial castes have arisen there were strong currents against intermarriage from the start").
95. See, e.g., Perez v. Sharp, 198 P.2d 17, 38 (Cal. 1948) (Schenk, J., dissenting); RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE 17-22 (2001) (discussing interracial relationships during the colonial period);
96. generally Judy Scales Trent, Racial Purity Laws in the United States and Nazi Germany: The Targeting Process, 23 HUM. RTS. Q. 259, 272 (2001).
97. See Randall Kennedy, The Enforcement of Antimiscegenation Laws, in INTERRACIALISM: BLACK-WHITE INTERMARRIAGE IN AMERICAN HISTORY, LITERATURE, AND LAW, supra note 70, at 140, 144-45;
98. A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L.J. 1967, 1968 (1989).
99. Higginbotham & Kopytoff, supra note 95, at 2000.
100. Id. at 1968.
101. See id. at 1995.
102. See id. at 1994 n. 126.
103. See id. at 2000; see also Jason A. Gillmer, Poor Whites, Benevolent Masters, and the Ideologies of Slavery: The Local Trial of a Slave Accused of Rape, 85 N.C. L. REV. 489, 492-93 (2007) (arguing that, during slavery, white male reactions to charges that a slave raped a white woman were nuanced and did not always engender knee-jerk hostility and aggression towards the accused slave).
104. Kennedy, supra note 95, at 144-45.
105. See id.; see also MARTHA HODES, WHITE WOMEN, BLACK MEN 1-2 (1997) ("Under the institution of slavery . . . white Southerners could respond to sexual liaisons between white women and black men with a measure of tolerance; only with black freedom did such liaisons begin to provoke a near-inevitable alarm, one that culminated in the tremendous white violence of the 1890s and after.").
106. See Kennedy, supra note 95, at 145. The punishment of blacks, however, did not mean that miscegenation statutes stopped functioning to enforce endogamy solely among whites. Since miscegenation statutes permitted blacks to marry members of nonwhite racial minority groups, the state obviously was not concerned with ensuring that blacks married only other blacks. Rather, blacks were being punished for playing their part in corrupting the blood of the white race. The state was still seeking to enforce the norm of endogamy among whites. Moreover, a significant reason why blacks were punished more harshly after the Civil War was because of federal civil rights statutes that required racial neutrality in the law. See id. Extralegal punishment such as lynching was used to punish black men for transgressing the limits on interracial intimacies. See HODES, supra note 102, at 1-2 (discussing the use of lynching).
107. Id.
108. See Herbert Ravenal Sass, Mixed Schools and Mixed Blood, ATLANTIC, Nov. 1956, at 45, 45-46, 48 ("Race preference is one of those instincts which develop gradually as the mind develops and which, if taken in hand early enough, can be prevented from developing at all.").
109. See id. at 48.
110. Id.
111. See id.
112. 104 So. 105 (Miss. 1925).
113. Id. at 107 (quoting MISS. CONST. of 1890, § 207).
114. See id. at 106.
115. Id. at 110.
116. See id. at 108.
117. Id.
118. Id. at 110.
119. Id.
120. See id. at 108.
121. TOM P. BRADY, BLACK MONDAY 65 (1955),
122. quoted in Anders Walker, Legislating Virtue: How Segregationists Disguised Racial Discrimination as Moral Reform Following Brown v. Board of Education, 47 DUKE L.J. 399, 401 (1997); see also Sass, supra note 105, at 48 (arguing that exposure to other races might encourage racial integration). The concern that racially integrated schools could eventually destroy the purity of the white race dates back to the mid-nineteenth century, and was not limited to the South. In 1860, for example, the California state legislature passed a law which prohibited racial minority groups, specifically Chinese children, from attending school with white children.
123. See Joyce Kuo, Excluded Segregated, and Forgotten: A Historical View of the Discrimination of Chinese Americans in Public Schools, 5 ASIAN L.J. 181, 190 (1998). A California newspaper printed an editorial supporting the segregation law, praising the law's ability to "keep our public schools free from the intrusion of the inferior races." Id. (citing The Public Schools and Colored Children, S.F. EVENING BULL., Feb. 24, 1858, at 2). It emphasized the antimiscegenation purposes of school segregating: If we are compelled to have Negroes and Chinamen among us, it is better, of course, that they should be educated. But teach them separately from our own children. Let us preserve our Caucasian blood pure. We want no mongrel race of moral and mental hybrids to people the mountains and valleys of California. Id. (citing The Public Schools and Colored Children, supra).
124. See Sass, supra note 105, at 48.
125. See, e.g., id.; BRADY, supra note 118, at 65.
126. See Sass, supra note 105, at 48.
127. See BILBO, supra note 43, at 56-57.
128. Josephine Ross, The Sexualization of Difference: A Comparison of Mixed-Race and Same-Gender Marriage, 37 HARV. C.R.-C.L. L. REV. 255, 268 (2002) (quoting CHARLES HERBERT STEMBER, SEXUAL RACISM: THE EMOTIONAL BARRIER TO AN INTEGRATED SOCIETY 22 (1976)).
129. Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).
130. See, e.g., Sass, supra note 105, at 46-47; see also BILBO, supra note 43, at 55 (arguing that racial segregation was necessary to preserve the racial integrity of the white race).
131. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 HARV. L. REV. 1470, 1482 (2004) (quoting BRADY, supra note 118, at 64).
132. Id. at 1483 (quoting BROWN V. BOARD OF EDUCATION: A BRIEF HISTORY WITH DOCUMENTS 204 (Waldo E. Martin ed., 1998)).
133. See Serena Mayeri, The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse, 18 YALE J.L. & HUMAN. 187 (2006) (discussing white southerners' adoption of sex segregation in public schools to prevent interracial intimacies from developing between white and black children of the opposite sex);
134. RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 278 n.† (2003) (discussing calls for sex segregated schools as a way to avoid having white and black children of different genders attend school together);
135. Robert B. Barnett, Comment, The Constitutionality of Sex Separation in School Desegregation Plans, 37 U. CHI. L. REV. 296, 297-98 (1970); Moore v. Tangipahoa Parish Sch. Bd., 304 F. Supp. 244 (E.D. La. 1969).
136. Mayeri, supra note 128, at 196.
137. See Balkin, supra note 48, at 1709. Balkin notes that state and local governments in the South "inserted themselves into the regulation of almost every facet of everyday life, including schools, hospitals, cafeterias, recreational facilities, transportation, public accommodations, bathrooms, and water fountains, even funeral parlors." Id. Such massive state regulation of the private sphere was done to "maintain and signify the superior status of whites over blacks." Id.
138. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
139. See Plessy v. Ferguson, 163 U.S. 537 (1896).
140. See Turner v. City of Memphis, 369 U.S. 350 (1962).
141. See Dawson v. Mayor and City Council, 220 F.2d 386 (4th Cir. 1955).
142. See Palmer v. Thompson, 403 U.S. 217 (1971).
143. See Reginald Oh, Interracial Marriage in the Shadows of Jim Crow: Racial Segregation as a System of Racial and Gender Subordination, 39 U.C. DAVIS L. REV. 1321 (2006).
144. See Higginbotham & Kopytoff, supra note 95, at 1995.
145. Cf. HODES, supra note 102, at 1-2 ("Scholars agree that the most virulent racist ideology about black male sexuality emerged in the decades that followed the Civil War, and some historians have recognized that the lynching of black men for the alleged rape of white women was comparatively rare in the South under slavery.").
146. See CHARLES FRANK ROBINSON II, DANGEROUS LIAISONS: SEX AND LOVE IN THE SEGREGATED SOUTH 67-68 (2003).
147. Id.
148. See id. at 69 tbl.1, 71 tbl.3.
149. See id. at 70 tbl.2, 72 tbl.4.
150. See id. at 69 tbl.1, 71 tbl.3.
151. See id. at 70 tbl.2, 72 tbl.4.
152. See id. at 68.
153. See id.
154. Id.
155. Id.
156. See id.
157. See id.
158. See HODES, supra note 102, at 147.
159. Id. at 165.
160. See id. at 162-63.
161. See id. at 164.
162. See Lindquist Dorr, supra note 38, at 144 (arguing that Virginia's 1924 miscegenation law "represents a modern, rationalized means of simultaneously controlling black men and white women" and of "counteracting changes in social and gender norms").
163. See id. at 150.
164. Id. at 149.
165. Id. at 156.
166. See id. at 159.
167. Id.
168. See id. at 157 ("Mixed-race children of white mothers usually remained in the white community, thereby increasing the likelihood that they would [pass as whites] and marry whites.").
169. See id.
170. VA. CODE ANN. § 20-50 (1960).
171. Lindquist Dorr reproduced such a letter: Dear Madam, We have report of the birth of your child, 30 July 1923, signed by Mary Gilden, midwife. She says that you are white and that the father of the child is white. We have a correction to this certificate sent to us from the City Health Department at Lynchburg, in which they say that the father of the child is negro. This is to give you warning that this is a mulatto child and you cannot pass it off as white. A new law passed by the last legislature says that if a child has one drop of negro blood in it, it cannot be counted as white. You will have to do something about this matter and see that the child is not allowed to mix with white children, it cannot go to white schools and can never marry a white person in Virginia. It is an awful thing. Lindquist Dorr, supra note 38, at 153.
172. Id.
173. See Loving v. Virginia, 388 U.S. 1, 11 (1967).
174. See generally BILBO, supra note 43, at 82-93 (arguing that white superiority over blacks was inherent and therefore blacks must continue to be denied social equality with whites).
175. See Loving v. Virginia, 388 U.S. 1, 11 (1967).
176. See Loving v. Virginia, 388 U.S. 1, 11 (1967); see also Garrett Epps, The Antebellum Political Background of the Fourteenth Amendment, 67 LAW & CONTEMP. PROBS. 175, 180 (2004) (arguing that the Fourteenth Amendment was enacted to prevent former white slaveowners from being able to exploit blacks to maintain their political and economic power).
177. See generally John A. Powell, Dreaming of a Self Beyond Whiteness and Isolation, 18 WASH. U. J.L. & POL'Y 13 (2005) (arguing that whiteness and racial hierarchy continue to exist today despite the invalidation of miscegenation and segregation laws).