Deconstructing Desire

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Naomi Cahn

When I teach Loving v. Virginia in family law, I remind students that, in 1967, Virginia was not alone in banning interracial marriage. And I point out  that many of their parents were alive during this era.

This semester, I will follow up to ask if racial preferences continue to shape my students’ dating and relationship choices.  I suspect that they will indignantly declare that such intimate discrimination is a relic of the past.

After reading Solangel Maldonado’s compelling book, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality, I will be fully prepared to respond by pointing out the history of laws that have prohibited relationships as well as the numerous other laws that have affected  our seemingly most intimate choices as to partners – and their ongoing effects. As Professor Maldonado points out, anti-miscegenation laws were, at one point or another between 1661 and 1967, in effect in 41 states. Under a 1661 Maryland law, for example, not only would “a free White woman who married an enslaved Black man [] be enslaved by her husband’s enslaver,” their children would also be born into slavery (p. 39). 

Other laws profoundly affected interracial relationships, even if they did not directly ban such relationships. Federal law “exclude[ed] anyone who was not White” from immigrating  to the U.S. (p. 48).  While the 1952 Immigration and Nationality Act ended these exclusions, only in 1965 did Congress abolish quotas for immigrants from certain countries.

And, as students learn in Property, it wasn’t until 1948, that the Supreme Court outlawed racially restrictive covenants in housing, although these clauses still exist today (p. 95). Racial segregation in schools (legal until Brown) also served as a barrier to meeting students from different races.

It might be easy to point to these landmark cases, and laws such as Title VII and the Fair Housing Act that ban discrimination today, and claim that dating preferences are simply personal choices, and the law is irrelevant to these deeply intimate decisions.

Professor Maldonado calls that bluff, pointing out that not only are there continuing impacts from these older laws that mandated (or facilitated) discrimination, but even the newer ones have exclusions that permit ongoing discrimination. For example, Title VII only covers employers of a certain size, while the Fair Housing Act has a carve-out for owner-occupied smaller housing units (pp. 70-71).  Residential segregation continues, as does the existence of racially-segregated occupations, with white men more likely to work in higher-paid jobs.

The ongoing disparities and discrimination outside of the family cannot, Professor Maldonado shows, be separated from what occurs within the family. In the book, Professor Maldonado carefully documents how intimate preferences “follow a gendered racial hierarchy” from dating through long-term relationships (p. 14).  She also describes the consequences of these racial preferences, including reduced opportunities for long-term partnerships (p. 118) and psychological, social, and economic harms that are intergenerational (Chapter 5). 

These preferences are, of course, shaped by family members’ perspectives (Professor Maldonado calls on her own personal experiences as a partial exploration of this point), as well as the communities in which people grow up. People gravitate towards others whom they find similar with respect to income, socioeconomic status  and attractiveness (p. 20).

Even dating apps are not neutral, notwithstanding the potential possibilities of social media to expand our circles of community. As Professor Maldonado points out, laws do not prevent against discrimination in the dating market (p. 66). She documents the race consciousness of dating apps, explaining that a research assistant developed fake profiles on various dating apps (p. 67).  Users were asked to indicate not just their race but also, in some cases, their racial preferences for dating partners. Race can easily be “used as a basis of decision making in ways that are hard to detect,” as Professor Catherine Powell points out in another context.

In the final chapter, Professor Maldonado suggests legal solutions that will diminish the constraints on interracial intimacy. While recognizing that attraction is complicated, and race might play a role –regardless of the law -- in people’s intimate choices, Professor Maldonado argues that laws can make a difference.  For example, statutes could “prohibit dating platforms from facilitating discriminatory conduct” (p. 132).  In accordance with the book’s theme that our intimate preferences are shaped by numerous types of law, other solutions address breaking down transportation and education barriers to interracial connections.

A book that focuses on interracial intimacy inevitably notes that racial preferences “reduce some individuals’ opportunities to find intimate partners” (p. 119). That observation is nicely in conversation with the developing field of scholarship – including the work of Eleanor Brown and  Kris Marsh - that looks at race, marriage, and those who live without partners, often by choice.   

Professor Maldonado’s book is a striking discussion of how past discrimination continues to structure our intimate choices and of the law’s historic, current, and potential role in restructuring how those choices are made. The family is not a private sphere, walled off from the market. Housing and employment and immigration law continue to affect not just where we live, but where we go to school, with whom we will make friends, whether we will attend college and what type of college – and whether and with whom we might ultimately form families. 

The book is a warning that the personal is political, a primer on the role of race in intimate decisionmaking, a reminder that the law plays a critical role both inside and outside of the family, and a rallying cry to transform the law. 

Naomi Cahn is the Justice Anthony M. Kennedy Professor at the University of Virginia School of Law. You can reach her by e-mail at ncahn@law.virginia.edu.